Earlier this week, after a nearly 15-hour filibuster, Democratic Senator Chris Murphy succeeded in getting Senate Republicans to agree to hold a vote to close the longstanding loophole that allows people on the terrorist watch list to purchase guns.
The proposed change—nicknamed the Feinstein Amendment after its sponsor, Sen. Dianne Feinstein—would give the Attorney General the authority to deny someone the ability to buy a gun if there's a "reasonable suspicion" that this person "is engaged, or has been engaged, in conduct…related to terrorism."
The need to close this loophole—the so-called "terror gap"—has been a focal point of Democrats for months. And restricting gun sales to people suspected of having violent tendencies is a good idea, in theory. But there's a major problem with the Feinstein Amendment—namely, it legitimizes an anti-democratic, opaque process that would allow the federal government to deny rights to someone without bringing formal charges against them, or giving them any due process rights at all.
The Feinstein Amendment contains no reference to a specific terror watch list, and there is still widespread uncertainty about what the amendment would actually do in practice. The FBI doesn't release much information about any of its terrorism-related lists, so legislators are left mostly in the dark about how the process actually works, and how this bill would change it.
But it doesn't take much imagination to see how a law banning people on a terrorist watch list from owning guns could go very wrong. Just look at a similar bill establishing a state-based terrorist registry in New York, which was passed by the New York Senate just this week.
For starters, you don't have to be convicted of any crimes, or even arrested, to be placed on the New York terrorist watch list. Rather, you only need to have been under "suspicion" of having been involved with terrorist activities.
If you do end up on the New York terrorist watch list, your life gets very complicated. You have to submit your photo to law enforcement every year, along with DNA samples and fingerprints. Your phone and internet accounts have to be registered. If you're a student, you have to register a description of your classes, classroom locations, and other information. And if you fail to register properly, you can be charged with a first-degree felony.
Maybe you're thinking: yeah, but these are terror suspects we're talking about, not innocent civilians.
Unfortunately, recent history has shown us that terrorist watch lists are often compiled with the help of racial and religious profiling. Take, for instance, the case of Farhaj Hassan, an active member of the U.S. Army. In 2012 he filed a lawsuit against the New York City Police Department for its controversial Muslim surveillance program that labeled several mosques he attended as suspected "terrorist enterprises," and which collected information about him.
As an Army officer, Hassan feared that all that information could be a detriment to his future in the military.
“We want that stuff gone, and we want it destroyed because there was no reason for it to be collected in the first place," he told me in an interview two years ago. Official suspicion about his religious affiliation was raised, and there was little he could do about it, short of bringing a hefty lawsuit to court. The case is ongoing. In the meantime, the NYPD has settled related court cases and shut down the targeted surveillance of Muslim communities, which it admitted was ineffective.
This is the main problem with the Feinstein Amendment and other proposals like it—they give the government the ability to deny rights to people merely for being deemed "suspicious," with no due process recourse for the accused. Unlike New York's terrorist registry, which allows people to appeal their listing if they feel they've been wrongfully targeted, the FBI's no-fly list (and other databases like it) have no appeals process at all.
The American Civil Liberties Union has already stated that these federal databases should not be used to restrict people's freedoms until the due process issues are corrected by either Congress or the White House. And it's easy to see how such a system could go awry. As Vice columnist Michael Tracey put it:
If U.S. gun regulations were tied to such a flawed list, many Muslim-Americans and members of other frequently profiled groups could find themselves unable to purchase firearms, while white people sailed through the process. (If you're finding this scenario hard to envision under the current administration, imagine a Trump administration, and the kinds of people it might deem likely terrorists.)
Whether you support gun control or not, the possibility of a law that allows people's rights to be restricted for no reason at all should make us take notice.
Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.