In the wake of the San Bernadino shooting, top Democrats, including President Obama, Hillary Clinton, and leading Dem Senators, have all unified behind a major push to ban people who are suspected by the government to be potential terrorists from being able to buy guns.
One of the leaders of this effort is Dem Rep. Mike Thompson of California, who has been organizing an effort to collect signatures on a “discharge petition” that could force a House vote on a proposal to deny people on the Terrorist Watchlist to buy guns. The bill is the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015,” which would grant the Attorney General the authority to block the transfer of guns or explosives to an individual if the AG “determines” that individual to be engaged in or supporting terrorist activities and “reasonably believes” that individual may use those weapons in connection with terrorism.
Rep. Thompson has claimed that thousands of “suspected terrorists” have already been able to purchased weapons legally. He’s called for the list to be “scrubbed” to address concerns about people wrongfully being on the list.
But civil libertarians are already deeply suspicious of the Terrorist Watchlist, arguing that it stigmatizes hundreds of thousands of people, and denies many the right to fly or travel freely, on the basis of mere suspicion based on secret evidence. Conservatives and some liberals have argued that denying those people the right to buy a gun on this basis is wrong and/or deprives them of their Second Amendment rights without any due process, charge or conviction. I asked Thompson about the many civil liberties concerns surrounding the measure. A transcript of our conversation, lightly edited and condensed for clarity, follows.
THE PLUM LINE: Can you describe the proposal in detail?
REP. MIKE THOMPSON: The bill is by Representative Peter King from New York, a Republican. What the bill says is that if you’re on the Terrorist Watchlist, you can’t buy guns, and you can’t buy explosives. There’s an appeal process in the bill. You present your case and it can be reversed.
PLUM LINE: People have raised some fairly serious concerns about the Terrorist Watchlist and No Fly List — that there is no due process, that it essentially violates the presumption that people are innocent until proven guilty.
REP. THOMPSON: Number one, it’s not a prohibition against someone from buying guns if you’re on this list. It’s a pause to make sure that you should rightfully be on the list. If there is someone who’s name is on the list and they shouldn’t be there, it doesn’t stop you from being able to buy a gun. It’s just going to delay your ability to buy a gun until that’s clear.
There are a number of reasons that you can be prohibited from buying a gun. You can be a domestic abuser. You can be dangerously mentally ill. You can be a felon. This just adds one more column — that is, if you’re on that list, unless you get cleared, and show you not a problem, I don’t believe you should be able to get a gun.
PLUM LINE: What about just the implications of the Terrorist Watchlist and No Fly List? Don’t those in and of themselves raise concerns? What they do is they presume guilt without any sort of due process or charge.
REP. THOMPSON: They presume these are people we ought to watch. Hence the “Terrorist Watchlist.”…If you’re on that list, they don’t round you up and lock you up. They’re watching you.
PLUM LINE: But you are denied the right to travel.
REP. THOMPSON: That’s true. And I believe should be denied the right to buy a gun.
PLUM LINE: You said that this doesn’t actually deny you the right to buy a gun. Are you saying it forces you into a process by which you appeal and determine whether you’re supposed to be on the list?
REP. THOMPSON: Correct….If it’s justified that you should be on that list, then under this bill you wouldn’t be able to buy a gun. You wouldn’t be able to buy explosives.
PLUM LINE: To clarify, even if you are forced to go through the process, the end result is that you could end up being denied a gun even though you haven’t been charged or convicted of anything.
REP. THOMPSON: That’s correct.
PLUM LINE: The concept is that there are already certain conditions [for instance, if you are deemed mentally ill] that stop short of being charged or convicted of anything, under which you can be denied a gun, and that this would do the same thing?
REP. THOMPSON: Correct.
PLUM LINE: It seems like it’s a leap from putting someone on a list, and even a leap from denying someone travel rights, to denying them the right to buy a gun, due to the Second Amendment.
REP. THOMPSON: Why is that any more of a leap than to deny someone the right to buy a gun if they’re smoking pot?….If there’s a chance of you being a terrorist that’s pretty compelling.
PLUM LINE: Even if you presume that there’s a legitimate societal interest in doing this, isn’t there a potentially serious downside? Couldn’t people who are wrongly on the list end up being denied their Second Amendment right to —
REP. THOMPSON: But we have an appeals process. So if they’re wrongly on the list, they can go through an appeals process. They can get that overturned. They can buy the gun.
PLUM LINE: The appeals process is not a court of law.
REP. THOMPSON: It is a court of law. You would go through a federal judge.
PLUM LINE: You’re not convicted of anything, though, right?
REP. THOMPSON: That’s true. The appeals process through the federal court would determine if you should or shouldn’t be on the list. You wouldn’t be convicted of anything. But it would still be substantiated that you’d be on the list.
PLUM LINE: The court ruled that the government must supply adequate notice about its reasons for placing people on the list. The ACLU still complains that the reasons for one being on the list are secret and that evidence is withheld.
The court nonetheless allows the Terrorist Watchlist to be used to restrict travel. But wouldn’t it be harder to get a court to allow the list to deny a Second Amendment right to own a gun?
REP. THOMPSON: Remember, you’re not denying anybody a right. They still have the right to do it if they’re not on the list or if they shouldn’t be on the list.