A lot of the gun control talk in recent days following the Orlando attack has centered around the “terrorist watch list”, a covert list of individuals maintained by the Federal government that can be used to deny a person a number of privileges, including being able to board a plane.
So no surprise that the Federal government would want to expand it to include infringing the Second Amendment.
The biggest problem with the watch list is the fact it is full of mistakes. Names that shouldn’t be on there. The list has been used to deny children entry to a plane. And it’s likely damned near impossible to get your name removed, or at least an exception made so that a particular person happening to bear that name isn’t unjustly targeted. And yet they expect us to trust them with that list when it comes to navigating the waters known as the Constitution? Okay, if they want that power, we need a compromise.
Currently the FBI has the ability to place up to a 3 day hold on a firearm transfer when a background check is requested through NICS. Three days is plenty of time for the Department of Justice to file for an emergency injunction with the District Court that has jurisdiction over the area where the sale was to take place. As the person against whom the injunction is filed would have the opportunity to defend themselves against the injunction, the due process requirement would be satisfied provided the injunction is only temporary and includes the caveat that Federal or State charges against the person be filed within the provided window (30 days, for example) or the person’s rights will be restored.
The injunction should also require more than the Department of Justice or Department of Homeland Security merely saying “he’s on the terror watch list”, as they’d have to give more substantial reasons to deny the sale to satisfy the Fifth Amendment, basically providing all the evidence as to why that person was on the list. The Court could even require the evidence satisfy the burden of probable cause. This would also give the opportunity for a counter-motion to order the Department of Justice or Homeland Security to remove the person from the watch list if that burden is not satisfied, while also raising the burden of proof to the point where if the government is even going to attempt to deny a person their rights, there should be enough evidence to arrest them and put them on trial. But then if they had that kind of evidence, the only thing that would be stopping the DoJ from putting them on trial is not having enough evidence to satisfy the burden of beyond reasonable doubt.
This isn’t much different than what currently goes on with other criminal trials. For example pre-trial injunctions forbidding contact between a defendant and an alleged victim are common in cases of domestic assault. If the defendant is convicted, the injunction may become permanent, while it is lifted if the defendant is acquitted.
This brings the terror watch list out of the realm of secrecy while also giving Democrats what they want: the ability to use it to temporarily deny gun purchases. Anything more than this requires a criminal trial and conviction on felony charges.