June 23, 2016
NSSF Statement Opposing S.Amdt.4814 (Collins Amendment)
Industry Calls for Bipartisan Action to Prevent Terrorism While Respecting the Bill of Rights
Members of the firearms industry, like all Americans, do not want to see terrorists obtain firearms, especially from federally licensed firearms retailers. We condemn acts of terrorism wherever they occur, especially if they involve the misuse of firearm, and we extend sympathies to the victims of the Orlando terrorist attack. We appreciate the sincere and genuine effort by members of the U.S. Senate to try and pass legislation to address this important issue.
In a free society such as ours – that terrorists want to destroy – legislation that seeks to prevent terrorists from obtaining firearms must strike a proper balance between the interests of public safety, protecting the integrity of terrorism investigations, and the fundamental, constitutional rights of law-abiding Americans, including the rights to keep and bear arms and to due process enshrined in the Bill of Rights.
In our judgment, S.Amdt. 4814 (the Collins Amendment) fails to strike that necessary and proper balance. While we oppose the Collins Amendment for the reasons set forth below, NSSF stands ready to work with members of the Senate to draft bipartisan legislation that will both help protect America from radical Islamic terrorism and respect the Second and Fifth Amendments in the Bill of Rights.
We oppose the Collins Amendment because the proposal has many of the same deficiencies and problems as the earlier Feinstein Amendment (S.Amdt. 4720) we opposed:
- It would create a “Terrorist Investigation Notification System”, jeopardizing terrorism investigations; the same concern raised by FBI Director James Comey.
- It would use a flawed secret government watch list to deny American citizens their Second Amendment rights. The problems and flaws with the “No Fly” list have been well documented. For example, it has included the names of a sitting U.S. Senator and sitting U.S. Congressmen, The venerable civil rights leader Rep .John Lewis (D-GA) who lead the House “sit in” and Nelson Mandela were once on the list. Young children have been on the list. Employees of the Department of Homeland Security are also on the list. And it is worth noting that those on the “Selectee” list are not barred from flying, they are merely subjected to additional screening.
- Constitutionally, it is of no consequence how many or how few are currently on these lists. There is nothing that would prevent the government from adding anyone that disagrees with it to either the “No Fly” or “Selectee” list.
- It would require an individual to sue the United States government in order to have their Second Amendment rights restored. It is the U.S. government that should be required to bring a legal action in the U.S. District Court to take away someone’s fundamental constitutional rights. No actual terrorist, having been tipped off by the denial, is likely to sue the United States. Only law abiding Americans wrongly placed on the flawed “No Fly” or “Selectee” lists are likely to sue their own government to have their Second Amendment rights restored. And, they should not have to travel to a far off U.S. Court of Appeals – which for many Americans is hundreds of miles and several states away.
- The proposal does not apply heightened scrutiny which is the proper burden the government must show in order to deny a fundamental constitutional right. Americans’ fundamental rights cannot be constitutionally denied based on mere “reasonable suspicion”, that would be insufficient to support the issuance by a court of a search warrant or to make a lawful arrest under the Fourth Amendment.
- Unlike the Cornyn amendment, the Collins amendment does not require the Attorney General to take action expeditiously to bring charges against individuals they deem too dangerous to buy a firearm.
The NSSF supported the defeated (53-47) Secure our Homeland from radical Islamists by Enhancing Law Enforcement Detection (SHIELD) Act (S.Amdt. 4749) sponsored by Sen. Cornyn because it struck the proper balance. We stand ready to work with members of the Senate from both sides of the aisle to draft legislation that strikes the proper balance. In our judgment, any legislation to address this must do the following:
- Whenever a background check is conducted the FBI National Instant Criminal Background Check system (NICS) should check whether the prospective transferee is listed in the Terrorist Screening Database (“watch list”) and notify the FBI of the potential match. This is current policy and supported by NSSF. The legislation should include an appropriate “look-back period” for those previously on the list;
- If there is a potential match, the background check should be placed in a “delayed” status for three business days (which is actually five or more calendar days) to allow the FBI time to confirm whether the prospective transferee is the person on the watch list and to determine if there is a legal basis under existing law to deny the transfer. This is current policy and supported by NSSF;
- If it is not the person on the watch list, the FBI should advise FBI NICS and allow the transfer to proceed, if it is otherwise lawful. This is current policy and supported by NSSF;
- If the FBI determines the prospective transferee is the person on the watch list, the FBI should, if warranted, open an investigation if one is not already pending and take whatever law enforcement activity is appropriate, e.g. conduct surveillance, obtain a court order for electronic surveillance, etc. The FBI could also contact the firearms retailer involved and ask them to voluntarily deny the sale or otherwise cooperate in their investigation. This is current policy and supported by NSSF.
- If the FBI has “probable cause” to believe the prospective transferee is engaged in terrorism activities they can and should arrest the individual. This is current policy and supported by NSSF.
- The FBI should be authorized to file an emergency petition in the U.S. District Court where the prospective transferee resides to obtain a court order to authorize the denial of the transfer upon a showing of probable cause. During the pendency of the petition the transfer should remain in a delayed status. If the person is actually a terrorist, is it very unlikely they would appear in court to oppose the petition, which could then be granted by default and an order entered authorizing the denial of the transfer. Many of the detailed legal proceedings provided for in the Collins Amendment could be considered as a model for a bipartisan bill.
- Congress should provide the FBI with the resources it needs to monitor and investigate suspected terrorists.