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06.20.2016 Senators’ Gun Control Proposals Illustrate Key Tension in Federal Firearms Policy By: Camden R. Webb & Charles E. "Chuck" James, Jr.

This evening, the Senate will vote on four proposals to amend federal gun control laws.  These proposals, being considered just 9 days after Omar Mateen attacked the Pulse nightclub in Orlando, actually are not expected to be enacted into law.  However, the substance of the proposals illustrates crucial policy issues at the intersection of gun control legislation and the Second Amendment.

The most aggressive gun control proposal comes from Senator Chris Murphy, who led the filibuster last week that resulted in the proposals being scheduled for tonight’s votes.  Senator Murphy’s proposal addresses a number of issues, but the most significant aspect of this proposal is expanding background checks to every transfer of a firearm anywhere at any time, subject to enumerated exceptions.  This proposal suggests a dramatic change in federal gun control policy, and it would do things such as prohibit a person from giving a firearm as a gift to someone who is not a family member without performing a background check and would make it a federal crime for an ordinary citizen to fail to report the loss or theft of a firearm.

Senator Murphy’s proposal and a proposal by Senator Chuck Grassley both address the issue of a person's mental health status and whether that would disqualify the person from purchasing a firearm.  Current law prohibits transfer of a firearm to a person “who has been adjudicated as a mental defective or has been committed to any mental institution,” but there has been a great deal of confusion—and corresponding litigation—as to the meaning of these terms.  The proposals from Senators Grassley and Murphy define the terms, but the Grassley proposal contains a key distinction: it requires that the person who was adjudicated as mentally defective or committed to an institution have had the benefit of due process before such determinations were made.  In other words, the Grassley proposal would ensure due process before the right to purchase a firearm was taken away, while the Murphy proposal would not.

On the important policy issue of restricting the sale of firearms to persons on a “terror watch list,” proposals from Senator Dianne Feinstein and Senator John Cornyn hit this issue head-on.  Both proposals also attempt to address a key policy concern: how does the federal government keep guns out of the wrong hands while at the same time safeguard against denying law-abiding citizens their Second Amendment rights?  This latter concern arises because the government likely will make mistakes when it places persons on a terror watch list.

The Feinstein proposal addresses this civil liberties concern, but it does so by incorporating a “reasonable suspicion” standard.  Under Senator Feinstein’s proposal, a person would be denied the right to purchase a firearm if “the transferee [purchaser] represents a threat to public safety based on a reasonable suspicion” that the person is engaged or has been engaged in terrorism.  The proposal goes on to declare that such a determination would be equivalent to the disqualifying factors found in 18 U.S.C. § 922(g) or (n), which list the reasons a person is prohibited from purchasing a firearm.  However, the lowest legal standard found in those provisions for disqualifying someone from purchasing a firearm is probable cause.  In 922(n), a person under indictment for a felony may not purchase a firearm, and an indictment requires a showing of probable cause, not reasonable suspicion.  The civil liberties concern in this regard is significant.  The legal standard of “reasonable suspicion” only requires an objective basis to suspect a person of wrongdoing, while probable cause requires a showing that the person more likely than not engaged in wrongdoing.

The Feinstein proposal also places the burden on the citizen to obtain a court order restoring his or her right to purchase a firearm.  Under 18 U.S.C. § 925A, a person who is included improperly in the class of persons disqualified from acquiring a firearm may bring an action to correct this improper inclusion.  The Feinstein proposal states that a person prohibited from acquiring a firearm under the new rules would be entitled to bring an action under 18 U.S.C. § 925A.

Senator Feinstein’s approach gets to the heart of a significant problem with both the Feinstein and Murphy proposals—they both would deny a Second Amendment right, which federal courts hold to be a fundamental constitutional right, without the government having to make any showing (in the case of the Murphy amendment) or only having to make a minimal showing (in the case of the Feinstein amendment).  Both approaches are difficult to square with the nature of Second Amendment rights.

Senator Cornyn’s proposal addresses this concern by requiring the government to make a probable cause showing before a person’s Second Amendment rights are denied.  The Cornyn proposal directs the US Attorney General to develop procedures that (1) allow the immediate notification to federal, state, and local law enforcement when a person who is a “known or suspected terrorist” attempts to acquire a firearm; (2) allow the federal government to delay the attempted acquisition for 3 business days, and in the interim go to court to secure an order that the transfer not take place; (3) provide due process—that is, notice and the opportunity to be heard—to the person who attempted to acquire the firearm; (4) require that the federal government make a showing of probable cause to secure the order barring the transfer; and (5) allow the federal government to arrest and detain the person who attempted to acquire the firearm, provided there is probable cause to believe that person committed a crime.  The Cornyn proposal therefore places the burden on the government to take away a right, rather than denying the right and making a citizen apply to the government to get the right restored, as the Feinstein amendment would do.

The Cornyn proposal’s procedural approach of requiring the government to make a showing also addresses a glaring concern that the Feinstein proposal presents.  A proceeding in which a person’s suspected terrorist activities are in issue will obviously involve very sensitive information.  Moreover, such information would be in the government’s possession.  If the person denied the right to acquire a firearm must bring the action to have his or her rights restored, as required by the Feinstein proposal, there is a significant risk that the person would never be able to make the required showing due to the lack of access to information.  The Cornyn proposal addresses this by requiring the government—the party in possession of the information—to make the showing.  Moreover, the Cornyn proposal avoids one of the most basic problems with legal proceedings by not requiring that a citizen “prove a negative”—that is, a citizen would not have to prove that he does not belong on a list.

As noted above, the currently-pending proposals likely will not pass the Senate, although one of the proposals, or perhaps a compromise incorporating aspects of two or more proposals, could pass.  Nonetheless, the pending proposals aptly illustrate a key tension in federal gun control policy of weighing the need to prohibit sales to the wrong people while ensuring that the right people are not denied their constitutional rights.