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Gun Policy

‘Terror Gap’ Showdown: What Republicans and Democrats Are Fighting Over in the Senate

Yesterday, a 15-hour filibuster focused on closing the loophole.

Three days after a gunman shot and killed 49 people in an Orlando, Florida, nightclub, there is new momentum in support of legislation that would screen gun buyers against a terrorist watch list maintained by the FBI.

The shooter, Omar Mateen, declared allegiance to ISIS during the attack, and had twice been placed on the list, which includes the names of an estimated 40,000 Americans. (He was reportedly not on the list when he bought the weapons he used in the attack.)

On Wednesday, Senators Chris Murphy of Connecticut and Cory Booker of New Jersey began filibustering an appropriations bill. They are attempting to force the Senate to address gun legislation — specifically, they want to close the “terror gap.” They are also pushing to institute universal background checks.

Presumptive Republican nominee Donald Trump also tweeted Wednesday that he wants to stop people on the terrorist watch list from buying guns. He said he would work with the National Rifle Association, which has endorsed him, on a plan to do so.

But Trump hasn’t said what kind of legislation he specifically supports. As of now, there are dueling approaches:

The Democrats’ Plan

In February, California Senator Dianne Feinstein introduced the Denying Firearms and Explosives to Dangerous Terrorists Act. A version of the same bill had been introduced in the House of Representatives in December, a few days after two shooters who claimed allegiance to ISIS killed 14 at an office holiday party in San Bernardino, California. 

Feinstein’s bill calls on the Justice Department to check would-be gun buyers against the government’s consolidated terror watch list — which is much larger than the “no fly” list, including a reported 800,000 names. (The “no fly” list is a much smaller subset, containing approximately 6,400 Americans out of 64,000 names in all.) The bill does not require the Justice Department to block the sale when a background check returns a match, though it does give the Attorney General that authority. Most Republicans oppose the measure on the grounds it would strip those on the watch list of their constitutional right to a gun without due process.

Peter King, a New York Republican who co-sponsored the House version, doesn’t think such objections should prevent the bill from passing.

“You can argue the list is unwieldy … If someone gets delayed for a month when trying to buy a gun, that’s a downside,” King told The Trace on Wednesday. “But you know what? It’s a lot better than a massacre. I would opt to protect people from a massacre.”

Under this bill, Mateen, the Orlando gunman, would not have been stopped from purchasing the gun he used to carry out the massacre, because he was no longer on a terrorist watch list.

The Republican Response

Introduced by Texan John Cornyn, the Senate Majority Whip and a frequent author of pro-gun legislation, the Republican plan allows the government to block a firearms sale only when it can provide sufficient proof that the prospective buyer “has committed, or will commit, an act of terrorism.”

When a gun shopper on the terror watch list triggers that process, the Justice Department would have no more than 72 hours to assemble its case and secure what’s called an “emergency judicial motion” by presenting a judge with probable cause. If the Justice Department fails to do that, the purchase would go through. 

A similar “default proceed” proceed loophole exists in the current background check system. If a gun buyer’s background check is flagged for further review, officials have 72 hours to complete the check. If it takes longer than three days, the purchase automatically goes through. This is how Charleston gunman Dylann Roof was able to buy the gun he used to kill nine in a church nearly a year ago.

Democrats say the “default proceed” provision in Cornyn’s bill makes the measure unworkable. The Democratic Policy and Communications Committee criticized the proposal, saying it would “require law enforcement officials to prove to a court that a gun buyer has already committed an act of terrorism” or stop “likely terrorists ahead of time.”

“The government would likely just arrest the individual if it had that kind of evidence,” the DPCC release said.

Critics have also called the 72-time time limit arbitrary and too short.

Both sides said Wednesday that they are open to a deal. Feinstein approached Cornyn, and the senators and their staffs say they are discussing ways to compromise. In a press conference Thursday, New York Senator Chuck Schumer called the bill “bunk” and “a fake.”

Pat Toomey’s Compromise Bill

Republican Senator Pat Toomey of Pennsylvania, who faces a Democratic challenger in November, offered a third option to close the terror gap Wednesday evening. (In 2013, Toomey co-sponsored legislation that would have expanded background checks.)

Toomey’s bill would add multiple steps to the process. It would direct the Attorney General to create a list of “likely terrorists” barred from buying guns, which would be submitted to the secret Foreign Intelligence Surveillance Court. Then the onus would be placed on the court, which would determine if there is probable cause to believe those on the list supported terrorism and might use a gun in a terror act. The court would annually review the list to ensure no one was mistakenly barred from buying guns.

For people not yet on the list but suspected of terrorism, Toomey’s proposal allows the government to block their purchase of a gun for three days. It also gives a person barred from buying a gun through the list a chance to appeal and gives the court 50 days to decide the case.

Toomey does not have Democratic support: Schumer said the proposal was “even worse” than Cornyn’s.

[Photo: Flickr user Gage Skidmore]