aka The Black Man With A Gun ™

The story of the Trojan Horse is one of deceit, wrapped up like a gift.
After 10 years of siege, the Greeks had been unable to conquer Troy. So Odysseus had a giant wooden horse built…the horse being the symbol of Troy…and offered it as tribute to Athena, as the Greeks apparently abandoned the siege. But an elite force of Greek soldiers was hidden inside the horse, emerging once the Trojans had wheeled it into the city, celebrated their apparent victory, and fallen asleep. The hidden Greek troops killed the guards and signaled the rest of their army to return and finish off the city.

Gun rights have been under siege for a long time, and our opponents have recently tried to attack using the terror watch list and no fly list maintained by the federal government. Anti-gun rights politicians and activists would like to see these lists used to prohibit anyone on them from purchasing a firearm, but there are several problems with such a move…primarily with the lack of due process before denying someone the exercise of a civil right.

But Senator Marco Rubio has a gift for us. Senator Rubio has proposed legislation which introduces due process into any denial of a firearms sale based on these secret government lists…and more. Were Rubio’s bill to pass, anyone who had been investigated federally for terrorism within the last ten years (whether currently on the watch lists or not) could have their firearms transfer delayed for up to three days, and it could only be stopped by an emergency petition granted in court. Once in court, the government would have to show probable cause that the individual in question was involved or terrorism, and failing that, the petition would be denied, and the government would have to cover the costs.

They would have to put up or shut up…sounds great, right?
It does, until you consider a few realities of the legal process.
First of all, these petition hearings are going to take place very quickly. Remember, they have three days to stop your gun purchase if they’re going to…so that’s exactly what they’re going to do. They will first immediately delay your transfer, and then you’re going to get served papers telling you that a hearing will take place in the nearest U.S. District Court, and it’s going to be in a couple of days. You’re going to be told you can appear with an attorney and contest the government’s petition. If you can’t get it together in those couple of days, tough. They’ll deny your request for a continuance and go ahead and allow the U.S. Attorney to present the petition.

If you’re lucky, the U.S. Attorney and the federal judge will not be Obama or Clinton appointees, and the petition will be denied, even though you weren’t able to adequately defend yourself in the allotted three days.

But another scenario might be that (since you couldn’t afford an attorney, or get one to take your case and appear in federal court for you on such short notice) the U.S. Attorney petitions the federal judge to stop your firearms transfer, and the federal judge (absent any case being made on your behalf) finds probable cause that you are involved in terrorism and stops the sale.

Now you’ve got ’em, right? Now they have to arrest you for terrorism (wrongly) and prosecute you (and lose, and get sued, yada yada). That will show ’em!
Wrong. First of all, the bill only says the government only has to show probable cause in the petition hearing to stop the sale of the gun. It doesn’t say they have to charge and arrest you. There is no language in the bill which says “shall arrest,” and there’s a big difference in the enforcement world between shall arrest and may arrest. That means they have discretion, and they don’t have to arrest you or charge you with anything…just grant the emergency petition and stop the transfer of the gun. (If you think the existence of probable cause is necessarily going to result in charges, then you haven’t been paying attention. Just ask Hillary Clinton or David Gregory, to name a couple.)

Remember, the whole point of denials based on terror investigations is not to catch terrorists, and it is not to stop terrorists from getting guns. The point is to add one more tool which can be leveraged against citizens attempting to buy guns. Once the petition hearing is completed and you’ve been denied your gun…in court…they have succeeded, and do not need to go any farther. They deny the sale and walk away. Of course, you can enlist an attorney and sue the government to get your sale approved. Who knows, maybe some day there will be a famous Supreme Court decision named after you. But who wants to go through all that?

It isn’t necessary, of course. As it stands now, the government cannot deny you a gun, even if you are on these watch lists. And the government already has the ability to investigate and charge anyone with terrorism, any time they can show probable cause. They can do that now, without Rubio’s bill. And no one believes that this bill or any like it will actually stop a terrorist from obtaining a gun. All this bill does is to slip in a weapon which can be used against us…a Trojan Horse dressed up like due process.

David Cole


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