Where Do You Put Your Trust?
Article first appeared at NRAmedia.org
NRAmedia – This feature appears in the February ‘16 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.
For the sake of playing to their political base, the gun-ban progressives in Congress would erase the constitutional rights of all Americans—shredding not just the Second Amendment to the Bill of Rights, but the Fifth and Sixth amendments, which the Founders saw as the ironclad guarantees of due process under law.
It’s all happening under the deadly, phony political meme summed up in a few headlines:
“Terrorist Watch List No Bar to Buying Guns”
“How Terrorist Sympathizers Exploit America’s Gun Laws”
— Think Progress
“Individuals on FBI’s Terrorist Watchlist Allowed to Purchase Firearms”
None of what they print under those headlines is even remotely true.
But with the December 2015 Christmas party slaughter of innocents in San Bernardino, Calif., by a masked jihadi couple who were clad in ninja suits and armed with illegally altered firearms, cellphone-operated destructive devices and pipe bombs, the truth has been erased.
That horrific event spawned an instant, lasting media mob-action to press for immediate enactment of the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015,” a measure introduced a year ago by U.S. Sen. Dianne Feinstein, D-Calif., and sponsored by a who’s-who of the gun confiscation crowd in Congress. … it’s like telling the attorney general that she can make up the details of the law, giving her sole discretion over depriving American citizens of their constitutional rights.
Before any facts were even known about the California murders, President Barack Obama blamed the massacre on the “insane” lack of gun control, suggesting the long-radicalized husband-and-wife murder squad’s evil would have been prevented by “universal” background checks. Of course, this begs the question of other background checks. Obama is insisting on the importation of tens of thousands of Syrians who the FBI says are impossible to vet against terrorism with any sort of background investigation. And the barbarians of ISIS are promising that their killers will be among the refugees.
Most of the massive media hype over “terrorism” and guns is focused on pushing a frightened, gullible non-gun-owning public into supporting the Feinstein legislation—perhaps the most dangerous concept imaginable to every American’s rights. Indeed, it represents a fatal wound to American liberty.
The legislation—S.551 in the Senate and H.R.1076 in the House—would create a nightmare police-state operation in which an individual loses rights and property simply by being placed on a secret list—declared to be a suspected terrorist for secret reasons, by secret bureaucrats using a secret process. And there is no way out except through a bizarre, star-chamber court where evidence is secret and the secret-government bureaucrats ultimately prevail.
The measure does all this by amending the Gun Control Act of 1968. In essence it creates a “prohibited person” category, adding it to the list already enumerated in the statute—felons, fugitives from justice, etc. Instead, it leaves the definition of who is covered—and how they are covered—up to the whims of the U.S. attorney general.
In effect, it’s like telling the attorney general that she can make up the details of the law, giving her sole discretion over depriving American citizens of their constitutional rights.
This is in addition to the inherent pre-existing problems of the Terror Watch List and the No-Fly List, which together, according to USA Today and other media sources, contain more than 1 million names of individuals in secret databases. Under that system, it is nearly impossible to get off the list.
Presumably, the names on those lists would automatically be covered by the Feinstein legislation, which also details how people can be tagged as terrorists for the purpose of denying them their Second Amendment-protected rights. It even establishes the mechanism by which they are disallowed from obtaining guns under the National Instant Criminal Background Check System (NICS).
Before considering the literal text of the legislation, consider the words of the Fifth and Sixth amendments to the U.S. Constitution:
In part, the Fifth Amendment declares, “No person shall … be deprived of life, liberty or property, without due process of law. …”
And the Sixth Amendment guarantees, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …” and “be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
To be sure, the right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him …” is nowhere to be found in Feinstein’s legislation. In fact, it’s hard to imagine that an honest, open-minded person could read the actual language of the legislation and not understand its dangers.
For now, the legislation applies to obtaining and possessing firearms. Clearly it also leaves the door wide open to other constitutionally guarded endeavors by Americans. Certainly it could be applied to a wide range of activities under the First Amendment, as well. Read it and fill in the blanks.
The measure would grant the U.S. attorney general total “discretion” to deny a firearm transfer to an individual secretly declared by the attorney general to be a “dangerous terrorist.” The determination is based on intentionally vague criteria that an individual “is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism …”On the attorney general’s secret declaration alone, individuals lose their constitutional rights. With a failure to clear a NICS background check, the individual falls into a prohibited-person category in which mere possession of a firearm is a felony.
On the attorney general’s secret declaration alone, individuals lose their constitutional rights. With a failure to clear a NICS background check, the individual falls into a prohibited-person category in which mere possession of a firearm is a felony.
Moreover, many states use the NICS system to clear applications for concealed-carry permits. The Feinstein law could, thereby, turn many permit holders into criminals as well. The same goes for states like Illinois that require licenses for gun ownership, and that use the NICS system for vetting licensees.
All of this obviously defies the Fifth Amendment: “No person shall … be deprived of life, liberty or property, without due process of law. …”
Yet in reading Feinstein’s bill, the worst, in terms of individual constitutional rights, is yet to come.
The measure provides that an individual can apply for relief after finding out he or she is barred as a “dangerous terrorist,” but those affected are given just 60 days to take it to court. That’s a mere 60 days to prove you are not a terrorist. Consider the enormous legal costs of such a defense. Most ordinary people couldn’t begin to afford it.
Also in terms of the defense, the law would throw out federal rules of evidence and shut off any usual discovery allowed under those rules. Of course, to defend himself an accused citizen would have to find out the information the federal government has collected, and where that information came from.
Yet to prevent legitimate demands from accused individuals for justification of being placed on the list, Feinstein has the government covered:
“… [A]ny information which the attorney general relied on for this determination may be withheld from the applicant if the attorney general determines that disclosure of the information would likely compromise national security.”
The process in court also sets a lower bar for the government than in normal court proceedings. “The court shall sustain the attorney general’s determination upon a showing by the United States by a preponderance of evidence. …”
“To make this showing, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the attorney general has determined would likely compromise national security.”
Let me give you an example of a summary: “This man is a terrorist.” That’s it, perhaps, out of the 100 pages they won’t let you or your high-priced lawyers see.
And speaking of redacted, we saw how the Obama administration used that tactic during Rep. Darrell Issa’s congressional hearings on the “Fast & Furious” guns-to-Mexican-cartels scandal, when file after file of subpoenaed documents had everything but page numbers blacked out.
How on earth could one fight for restoration of his rights when he can’t obtain “evidence” against him, or even find out the source? Again, recall the wording of the Sixth Amendment: A person has the right to “be informed of the nature and cause of the accusation; to be confronted with the witnesses against him …”
Put simply, that would not apply here.
And there is even more. In a remarkable break with the constitutional concept of separation of powers, Feinstein mandates what evidence a court can consider and what is off limits.
“Upon request of the petitioner or the court’s own motion, the court may review the full, undisclosed documents ex-parte and in camera.” This provision gives the court permission to see unredacted documents that are the basis for a citizen secretly being declared a terrorist—but in the backroom.
Notice Feinstein’s legislation tells courts they “may,” not “shall,” review the full and undisclosed documents.
But here is the zinger: Feinstein dictates that the complete documents making the government’s terror claim—including the parts the accused is not allowed to see—may not influence a decision. Her bill puts it this way: “The court shall not consider the full, undisclosed documents in deciding. …”
Obviously, this isn’t justice. It’s the very definition of the leftist demand for “social justice.” In the world of Feinstein’s legislation, you are, in fact, guilty until proven guilty.
At the core of all this is the question of who defines suspected “terrorist.”
Were it up to our current president, every act of radical Islamic jihad would be relabeled “workplace violence,” like he did the murder and maiming of GIs at Fort Hood, Texas, in 2009. In fact, that’s what he first called the Jihadi murders in San Bernardino, before the FBI forced him to use the dreaded “t” word.
Would it be out of the question to think that perhaps one day, just being a member of the National Rifle Association would fit the bill of being “appropriately suspected” and land you on the list? “What we do know is that the American people are heartbroken by these horrific crimes—and despite what the president would have us believe, America’s law-abiding gun owners are heartbroken by these horrific crimes as well,” Cox said. “At the same time, we are sick and tired of this president suggesting the men and women of the National Rifle Association are somehow to blame.”
Most recently, the New York Daily News laid out its definition of NRA as the “only nearly state sponsored terrorist group that is not listed by the U.S. State Department as such.” The reason? “… for their unending lobbying that’s kept a lid on gun control …”
“Therefore the NRA should take its rightful place on the State Department list of terrorist organizations, because its influence is more of an immediate threat to the lives of our citizens than foreign terrorists.”
NRA members as terrorists? The Brady Center certainly thinks so. Back in 2011, that gun-ban organization produced a frothing manifesto titled “Guns and Hate” (perhaps a better description for their own organization).
“NRA should be aware of the ominous connection between its inflammatory rhetoric and violent acts of domestic terrorism,” the group wrote.
“The National Rifle Association and others in the gun lobby have for years employed inflammatory extremist and anti-government rhetoric that bears a chilly similarity to some of the language of hate groups followed by … dangerous extremists.”
Of course, as NRA-ILA Executive Director Chris W. Cox emphasizes, NRA and its members are staunchly opposed to terrorists possessing firearms.
“What we do know is that the American people are heartbroken by these horrific crimes—and despite what the president would have us believe, America’s law-abiding gun owners are heartbroken by these horrific crimes as well,” Cox said. “At the same time, we are sick and tired of this president suggesting the men and women of the National Rifle Association are somehow to blame.”
Cox also points out that if anyone on the watch list is too dangerous to have a gun, they are too dangerous to be walking the streets and should be arrested—which the FBI could do right now with no changes to current law.
One of the great tragedies of all of this fundamental danger to our freedoms is that the people who should be reading and understanding the black letter of this proposed law—the media—are too lazy, too biased or too wedded to the notion of civil disarmament to report what the legislation actually says.
Mainstream news outlets like The New York Times and CBS—which in the past have vociferously opposed those lists and demanded reforms to protect innocent people from suffering the practical effects of being wrongly tagged—are fully in favor of the same innocent citizens being on a no-gun list. It’s simply shameful.
A notable exception to the media hypocrisy is the Los Angeles Times, which penned an editorial in December headlined: “Should people on the No-Fly List be able to buy guns? Yes.”
“One problem is that the people on the No-Fly List (as well as the broader terror watch list from which it is drawn) have not been convicted of doing anything wrong. They are merely suspected of having terror connections. And the United States doesn’t generally punish or penalize people unless and until they have been charged and convicted of a crime. In this case, the government would be infringing on a right guaranteed by the U.S. Constitution—and yes, like it or not, the right to buy a gun is a constitutional right according to the U.S. Supreme Court.”
The editorial continued, “… this page disagrees with the Supreme Court’s 2008 ruling that the Second Amendment guarantees an individual the right to own a gun. But that is a recognized right, and we find it dangerous ground to let the government restrict the exercise of a right based on mere suspicion.”
Unfortunately, the Times just couldn’t leave it at that. They kicked into full knee-jerk mode, saying, “Truthfully, no one should be allowed to buy assault rifles or other military-style firearms, and the country would be better off with much stronger gun control laws for other firearms than exist now.”
Too bad the paper’s editorial board couldn’t support American freedom in all its forms—including the right to keep and bear arms.
Another great disappointment is the American Civil Liberties Union, which has been very aggressive in its attacks—in public and in court—on the No-Fly and terror watch lists. When it comes to gun owners who find themselves innocent victims of the process the ACLU is fighting, that organization has basically washed its hands of Feinstein’s attack on civil liberties.
This is perhaps the most disconcerting aspect of the whole “no-gun” list craziness—the ease with which elements of Congress, the media and groups like the American Civil Liberties Union can slip out of their self-appointed roles of guardians of civil rights and ignore such injustice just because it involves gun ownership and an armed citizenry.