Editorial: House gun proposals threaten due process

The Detroit News

There’s been much focus since the Orlando nightclub shooting on finding new ways to prevent terrorist events like it from happening again on U.S. soil. The U.S. House has been particularly focused on the issue, even during summer recess.

While radicalization and homegrown terrorism certainly need to be stamped out, and the House proposals seek to do that, they’re also concerning for those who care about due process and the rule of law.

Democrats have proposed an outright ban for those on terrorist watch lists and the country’s no-fly list from purchasing firearms. It’s an explicitly unconstitutional proposal.

There are already many problems with the no-fly list, which suspends due process rights for travelers who are vaguely suspected of being involved with terrorism. The standard is relatively low — offensive speech or traveling to the wrong country could place you on the list. It’s obvious there are errors with how that list is compiled because members of Congress have ended up on it.

The Democrats’ bill would build on an already faulty and arguably unconstitutional program.

Parts of the Republican bill are similar in intent, although slightly different in practice. One measure in the bill would delay the right of a U.S. citizen to buy a firearm if there is “probable cause” to believe that he or she “will commit an act of terrorism.”

It doesn’t ban gun purchases outright, but requires otherwise law-abiding citizens to go through a multi-day emergency trial, where the accused essentially has to prove his or her innocence before being allowed to purchase a gun.

Further, it seeks to punish individuals for something they might intend to do, rather than a criminal or terrorist act they have actually committed.

And if citizens are likely to conduct terrorist activity, and we know that with probable certainty, warrants should be issued for their arrest and they should be interrogated. Restricting their firearms access isn’t the only concern.

Both pieces of legislation propose pretty clear suspensions of due process rights.

Probable cause is a lighter standard, and places the burden of proof of innocence on the person already assumed guilty.

And how would one prove they’re innocent of something that hasn’t yet happened? On what criteria would a judge be compelled to rule if no criminal activity has yet taken place: A person’s speech, his or her associations, or religious beliefs?

That is a new and dangerous realm for the just and equal application of criminal and constitutional protections in the United States. These pieces of legislation make light of both the Second and Fifth Amendments.

It’s timely and emotionally satisfying to argue that the threat of homegrown terrorism is so unique that suspension of citizens’ due process rights is the only cure.

But it shouldn’t be.

Other parts of the GOP’s bill package include a proposal to beef up the focus on Islamist terrorist radicalization throughout the country, which is needed. It also would revoke U.S. passports for individuals who belong to designated terrorist organizations or aided or abetted such organizations.

Those are important parts of the bill to get through.

The U.S. intelligence community should be intensely focused on the increase in homegrown radicalization — and quash foreign terrorists at the first chance. But when it comes to penalizing U.S. citizens for things they may or may not intend to do, that’s a dangerous precedent to set.