Nicholas Johnson was quoted in a Christian Science Monitor article about efforts to pass legislation that would restrict gun access to those on terrorist watch lists.
Sen. Diane Feinstein (D) of California has proposed legislation that would give the Justice Department, specifically the US Attorney General, the power to prevent suspected terrorists from buying weapons, whether or not their names appeared on the government’s official lists, as Politico reported. A proposal from Sen. John Cornyn (R) of Texas, meanwhile, takes the issue to the judiciary, giving a judge three days after the attempted sale to prove there was probable cause to deny the sale.
Nicholas Johnson, a professor at the Fordham University School of Law in New York, tells The Christian Science Monitor that the argument signifies a shift in thought from both sides of the aisle. In debates about NSA surveillance and the USA PATRIOT Act, Republicans had been arguing for widening executive branch discretion, while Democrats had been requesting judicial involvement.
“Things are a little flipped here, where you have the Democrats in this context making what would be a Republican argument, and the Republicans saying no, you can’t give law enforcement this kind of discretion, you need to have a judge make this kind of determination,” he says.
Professor Johnson says it is clear why legislators would want to use the terror watch lists to keep guns away from those listed. From a civil liberties standpoint, however, using the lists to deny Second Amendment rights could be problematic.
“The terror watch list and the no-fly list are some sort of secretive process that you really can’t do much about … and I guess necessarily so, since there are secret evaluations that go on to put people on it or take people off it,” he said.
Since people on the watch lists haven’t been arrested or accused of anything, Johnson argues, using the list to deny people firearms could subvert due process.
“You are essentially treating people the same way you would treat someone who’s actually convicted of crime,” he said.