I mentioned in a previous post that the Senate had recently taken up multiple new gun crime measures post-Paris/post-San Bernardino, and rejected them all earlier this month. That’s no surprise; no gun crime measures will pass the current Congress, for reasons that have been well documented by others.
I have said in the past that straw purchaser legislation and expanded background checks legislation are both sensible. Neither of those, in my view, violates the Second Amendment. And although I have been critical of federal gun legislation that, again in my view, implicates the Commerce Clause, each of these proposed measures likely passes muster because they each involve the commercial sale or transfer of firearms (as opposed to mere possession, which is more constitutionally problematic).
The third measure – prohibiting the sale or transfer of firearms to those on the Terror Watch List – was a more curious proposal. Although it could potentially implicate the Second Amendment, I am confident that there are ways to craft the law to address those concerns, which I view as overstated. As I understand the proceedings from that day in the Senate, the main proposal was from Senator Dianne Feinstein of California: the Attorney General could prevent the transfer if the person is a known or suspected terrorist and the AG has reasonable belief that the firearm will be used in connection with a terrorist act. A substitute was offered by Senator John Cornyn of Texas, which would have created a 72-hour window within which law enforcement could delay the transaction and seek a court order of denial, based on probable cause and with notice to the prospective transferee and opportunity for him or her to be heard, with counsel. Both failed, though there were procedural complications involved, as well as substantive objections.
The primary objection I have heard to proposals like Senator Feinstein’s is that the law violates due process (the procedural, not substantive, component): the prospective purchaser who is denied a firearm at the point of sale has no notice or opportunity to be heard. Objectors say there are often mistakes on these watch lists, such as the No-Fly List (which is a subcategory of the terror watch list). Such a mistake, they argue, could preclude someone from obtaining a firearm who is otherwise permitted to have one and does not pose a security risk. That is, of course, true, though it would be true only for those persons whose possession of a firearm would fall within the core protections of the Second Amendment. In procedural due process parlance, a person could be deprived of a liberty interest (one created by the Second Amendment), without a pre-deprivation hearing. But such a law would likely capture only a small percentage of people in that category (the vast majority of those placed on the watch list would properly be on it, and they would not have the same Second Amendment interest as someone who did not pose a terror risk). Moreover, the same objection would be true with respect to any watch list. The argument that the Government is imperfect is not unique to the context of transferring firearms. I am not sure, based on this argument, why this is not an argument against all watch lists, including the No-Fly List.
Also, the Fifth Amendment does not prohibit the Government from depriving someone of life, liberty, or property, simpliciter. It prohibits the Government from depriving someone of life, liberty, or property without due process of law. Once the Government supplies the process that is due to the individual, it can deprive as much life, liberty, or property as it wants (in the procedural context). As long as the legislation offers a procedure for challenging the denial of the firearm – and the Feinstein legislation did that – then this would arguably address any due process problem created with respect to the few people who may be wrongly included on the list. The best response to this would be to say that an additional pre-deprivation, rather than a post-deprivation, process is required, particularly where enumerated constitutional rights are implicated. That is arguable, and the Supreme Court has approved of post-deprivation hearings in other contexts. Because of the significance of the Government’s interests in prohibiting suspected terrorists from getting guns, a post-deprivation hearing may well be enough to satisfy the Due Process Clause. In the alternative, though, Senator Cornyn’s amendment would have given a pre-deprivation emergency hearing – but Democrats objected to his amendment.
I have said before that I would prefer that each of these pieces of legislation come as a separate and independent bill, and subjected to an extensive debate, and a vote, on its own merits. I see the constitutional argument that the opponents were making as to the Feinstein amendment, but I think it is overstated. I also think that those who did not support the legislation on this basis need to explain why we should have any terror watch list, including the No-Fly List, at all.