In a procedural vote this afternoon the U.S. Senate voted on whether to continue considering Senate Amendment 4858, the proposal by Senator Susan Collins or Maine which would enact the “No Fly, No Buy” legislation. That’s bill the Democrats and others have been pushing in the wake of the Orlando terrorist attack. The vote was close, but some Republican Senators joined with the Dems to create the simple majority needed to allow the proposal to continue to be debated.
As some have pointed out, the FBI already has the power to deny NICS checks for individuals on the “terrorist watchlist” for up to three days. The proposed legislation by Senator Collins would strengthen that power by allowing the FBI to permanently deny any NICS checks for those on the “no fly” and “selectee” lists, a subset of the consolidated “terrorist watchlist.”
In an effort to provide at least some due process protections, Senator Collins has included a mechanism which would allow those denied firearms purchases to sue the government to have that decision reversed. If successful, any legal fees paid by the aggrieved party would be reimbursed by the government.
While the mechanism sounds promising, some have pointed out that this could have a chilling effect on those without the financial means to mount an effective legal defense. It places the burden on the citizen to start the process, requiring time and money to reverse a decision made somewhere in the bureaucracy of the U.S. Government without much initial oversight.
Another issue that has been pointed out is that starting in January the FBI temporarily halted processing NICS denial appeals. Citizens who tried to purchase a firearm and were denied could still petition the FBI to have that reversed, but the FBI claims that it doesn’t have enough staff to actually investigate those petitions. If the NICS denial appeal process remains the same those who find themselves denied firearms sales due to their inclusion on the reduced “terrorist watchlist” might have access to due process protections in theory only.
Senate Republicans introduced an amendment earlier this week which would have had the same impact — prohibiting those on the “terrorist watchlist” from purchasing guns — but would have placed the burden on the Government to prove their case before the NICS denial was permanent. That measure received a majority of the votes but fell short of the necessary 60 votes due to the Senate Democrats rejection of the plan.