Another day, another exercise in kabuki theater within the halls of Congress. Hoping to limit the fallout from Monday’s rejection of proposals to expand background checks and make guns more difficult to obtain for people on federal watch lists, U.S. Senate leaders held votes on more gun control proposals today. A compromise amendment led by Republican Senator Susan Collins of Maine was expected to be the main agenda item.

But as Alexander Bolton reported for The Hill, Majority Leader Mitch McConnell “cut the legs out from a bipartisan effort to keep suspected terrorists from buying guns.”

Collins summarized the provisions of her amendment here:

Terrorist Firearms Prevention Act of 2016 Sponsor: U.S. Senator Susan Collins (R-ME)
Cosponsors: U.S. Senators Heidi Heitkamp (D-ND); Kelly Ayotte (R-NH); Martin Heinrich (D- NM); Jeff Flake (R-AZ); Tim Kaine (D-VA); Lindsey Graham (R-SC); Angus King (I-ME); Bill Nelson (D-FL); Joe Manchin (D-WV); Tammy Baldwin (D-WI); and Mark Kirk (R-IL)

The bipartisan “Terrorist Firearms Prevention Act of 2016” would prevent people who are on the No Fly List or the Selectee List from purchasing firearms. If our government has determined that an individual is too dangerous to fly on an airplane, that person should not have the opportunity make a legal firearm purchase. Due process principles require that Americans denied their right to purchase a firearm under this provision have the opportunity to appeal this denial to a federal court.

What the Amendment Does:

1. Gives the AG the authority to deny firearms sales to individuals who appear on the No Fly List or the Selectee List.
2. Provides a process for Americans and green card holders to appeal a denial in U.S. Court of Appeals and to recover their reasonable attorneys fees if they prevail.
3. Sets forth a procedure for protecting classified information during the appeal.
4. Protects ongoing FBI counter-terrorism investigations by giving the AG the discretion to allow gun sales to go forward to individuals covered by this Act.
5. Includes a “look-back” provision that ensures prompt notification to the FBI if a person who has been on the broader Terrorism Screening Database (TSDB) within the past five years purchases a firearm.

How It Works: The TSDB is the broad consolidated watch list comprised of several more narrow threat databases that various government entities maintain. The No Fly List is a subset that precludes an individual from boarding a commercial aircraft that departs in, arrives from, or flies over the United States. The Selectee List is used to identify individuals who require additional screening.

Individuals on the narrower No Fly and Selectee lists would not be allowed to purchase guns, but Americans and green card holders would have due process rights to appeal in the Court of Appeals following a proscribed procedure. The AG would have the burden of proof, and the court would be required to make a decision in 14 days.

Classified information would be reviewed by the court following procedures similar to those in the Classified Information Procedures Act used for criminal proceedings. In cases where the classified information is relied upon, the court would have a range of options to protect the information while fully ensuring due process. These options range from providing an unclassified summary to disclosing some or all of the classified information.

To ensure appropriate oversight and transparency, the Attorney General would be required to report to the Intelligence and Judiciary Committees of the House and Senate on the number of persons denied a firearm, the number of appeals filed, and number of persons who prevailed in their appeals under the provisions of this Act.

Bolton explained the McConnell two-step to defeat this proposal. First, the Senate majority leader scheduled a vote to table (kill) the Collins amendment, rather than a vote to add it to the Commerce, Justice, Science appropriations bill. Forty-six Republicans including Iowa’s Senators Chuck Grassley and Joni Ernst voted to table the Collins amendment; 44 Democrats and eight Republicans kept it alive by voting against the motion to table. But 52 votes was eight short of the 60 that would be needed to overcome a filibuster.

Then, McConnell brought up for a vote a proposal from Senator Ron Johnson of Wisconsin, which hardly anyone had heard about, much less had time to read. The National Rifle Association had lobbied against the Collins amendment but did not oppose the Johnson proposal, as happened with Monday’s amendments offered by Senate Republicans. Bolton picks up the story:

The last-minute measure had no chance of passing the Senate, but gave political cover for Johnson and Sens. John McCain (R-Ariz.), Rob Portman (R-Ohio), Richard Burr (R-N.C.), Roy Blunt (R-Mo.) and Marco Rubio (R-Fla.), who are all in challenging reelection races this fall.

All six voted against the Collins bill but in favor of the Johnson measure.

Sponsors of the Collins bill say their measure could have passed if McConnell had set up a positive vote to add it to the bill instead of a negative vote to kill it, and if he had offered it cleanly without a competing side-by-side alternative.

“If you put this one up for cloture now, it’s got a good shot,” said Sen. Jeff Flake (R-Ariz.), who backed the Collins measure.

He said the Johnson alternative gave his colleagues a reason to vote against his bill.

Johnson’s amendment was tabled (killed) by 67 votes to 31. Sure enough, in statements I enclose below, Grassley and Ernst emphasized their votes for stricter gun control measures, rather than against the bipartisan compromise on gun purchase restrictions for people under suspicion of terrorism.

The American Civil Liberties Union raised valid concerns about the Collins amendment. But regardless of whether you support that proposal on the merits, senators should have been forced to vote for or against it without McConnell sneaking in a “plan B” for them to hide behind.

Any relevant comments are welcome in this thread.

June 23 press release from Senator Chuck Grassley’s office:

Grassley Votes to Block Terrorists from Buying Guns While Respecting Constitution

WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley today issued the following statement after voting to prevent terrorists from purchasing firearms, while preserving fundamental due process protections guaranteed by the Constitution.

“Nobody wants terrorists to get their hands on guns and put Americans in harm’s way. We can accomplish this goal while respecting law-abiding Americans’ fundamental constitutional rights.

“One way is by using existing tools, like the ‘no-fly’ list, with additional due process protections to make sound determinations about who should have access to guns and who should not. Fortunately, the vast majority of people on these lists are not in the United States, so they cannot buy guns here in the first place. But to address those who are, we voted on two amendments today; one by Senator Johnson and one by Senator Collins. Both would prevent people from buying guns if they are on the ‘no-fly’ list or the ‘selectee list,’ which requires greater scrutiny at airports.

“I supported the Johnson amendment, which would require the government to first prove in court that someone attempting to buy a gun is correctly on one of the lists before permanently blocking the sale. This leaves in place important due process rights guaranteed by the Constitution. The Collins amendment does not provide this protection. Instead, it would allow the government to block the sale, forcing potential buyers to prove in court that they were improperly on the list after their Second Amendment right was violated. Americans should not have to prove that they are entitled to rights after they are violated; it’s the government’s duty to make its case before taking those rights away.

“The Constitution must be our guiding document. We can keep terrorists from having guns and protect the constitutional rights of law abiding Americans. It doesn’t have to be an either/or solution.

“The attack in Orlando was an assault on freedom and our very way of life. It’s time to get our eye on the ball and begin dealing with the real problem of radical Islamist terrorism.”

June 23 press release from Senator Joni Ernst’s office:

Ernst Votes Again To Keep Weapons Out Of Hands Of Terrorists, Urges Immediate Action Against ISIS

WASHINGTON, D.C. – U.S. Senator Joni Ernst (R-IA), a retired Lieutenant Colonel in the Iowa Army National Guard and member of the Senate committees on Armed Services, and Homeland Security and Governmental Affairs, voted again today to keep weapons out of the hands of terrorists and called for immediate action to defeat and destroy ISIS.

Senator Ernst supported the Johnson Amendment, which would prevent suspected terrorists from obtaining a gun for up to 23 business days, during which time the FBI is able to investigate the individual, confirm or rule out the identity and suspected nexus to terrorism of the individual, and file an emergency petition in court to prevent the gun transfer. If the court grants the petition, the individual is provided an opportunity to appeal.

This process ensures that law-abiding Americans’ Second Amendment and constitutional due process rights are appropriately protected. This is particularly important because of the widely reported flaws with the numerous terrorist watch lists – including the no-fly list – kept by the U.S. Government that may wrongfully implicate innocent American citizens. For example, a 2007 report by the Department of Justice (DOJ) Office of Inspector General (OIG) concluded that roughly 38% of records tested “continued to contain errors or inconsistencies that were not identified through the Terrorist Screening Center’s quality assurance efforts.”

“We cannot sit back and watch repeated terrorist attacks here at home and around the globe,” said Senator Ernst. “The FBI Director has made clear that ISIS is present in all 50 states.”

Ernst continued, “I have voted numerous times in support of measures that prohibit terrorists’ ability to obtain a gun. However, the multiple terrorist watch lists kept by the government are flawed, which is why we must also make certain that law-abiding Americans’ Second Amendment and constitutional due process rights are protected.

“Unfortunately, laws alone will not stop terrorists from pledging allegiance to radical Islamic groups and hurting Americans which is why we must act immediately to improve our efforts to counter violent extremism, defeat ISIS, and end the humanitarian crisis affecting the region and the world.”

BACKGROUND:

· Senator Ernst Voted Numerous Times To Prevent Terrorists From Obtaining Weapons:
o S. Amdt. 2912 (December 3, 2015)
o S. Amdt. 4749 (June 20, 2016)
o S. Amdt. 4859 (June 23, 2016)

· The Washington Post “The list is itself almost necessarily a slippery slope.”: “The San Bernardino attack also demonstrated the risk of over-inclusion. At least one news outlet confused the male shooter — Syed Rizwan Farook — with his brother, Syed Raheel Farook. ‘They have the same name except for the middle name,’ Sparapani pointed out, meaning that including a ‘Syed Farook’ on the list might block either from flying. (The shooter’s brother is a decorated Navy veteran.) There’s also the challenge of converting Arabic names into English writing. Consider the former leader of Libya, Muammar Gaddafi. Or Qaddafi. Or Gadhafi. Do you put all three names on the list? Get the letters wrong, and some people will be banned who shouldn’t be…The list is itself almost necessarily a slippery slope.”

· “ISIS Present In All 50 States, FBI Director Says” (ABC7, February 25, 2015)

· Senator Ernst Voted For Senator Grassley’s Amendment To Improve the National Instant Criminal Background Check System Without Unlawfully Infringing On Law-Abiding U.S. Citizen’s Second Amendment Rights:
o S. Amdt. 4751 (June 20, 2016)