As expected, the Senate rejected four gun control measures Monday, June 20th, after Senate Democrats had staged a filibuster a few days earlier to force a vote on two Democratic-backed gun measures: a proposal from Sen. Dianne Feinstein (D-Calif.) meant to bar those on federal terror watch lists from obtaining firearms, and a plan from Sens. Chris Murphy (D-CT), Cory Booker (D-N.J.) and Chuck Schumer (D-N.Y.) mandating background checks for sales at gun shows and over the internet.
Senate Democrats ended the nearly 15-hour filibuster of a non-stop series of speeches after Senate Majority Leader Mitch McConnell (R., Ky.) and Minority Leader Harry Reid (D., Nev.) reportedly agreed to allow votes on proposed gun control measures that would address these two issues as an amendment to a spending bill presently before the Senate.
As a further compromise, the Senate agreed to consider two bills put forth by Republicans.
However, the four gun policy measures, put forth by Democrat Sens. Feinstein and Murphy and Republican Sens. Charles Grassley and John Cornyn, failed to pass the 60-vote threshold to move forward in the Senate. It was always unlikely that any of the Democrat-backed proposals would move forward, since 60 votes were needed to clear procedural hurdles — more than the number of that party’s members in the Senate.
The final votes on each of these four measures came in at 47-53, mostly along partisan lines.
Sen. Murphy’s bill would have expanded background checks for anyone trying to purchase a firearm at a gun show or online, closing the so-called ‘gun show loophole.’
However, a competing proposal from Republican Iowa Sen. Charles Grassley “would have increased funding for the agency that runs background checks but wouldn’t make them mandatory.” Furthermore, it would have ensured that the correct records are uploaded into the system in a timely manner and also clarify language surrounding mental health issues that would disqualify someone from buying a gun.
Under the Feinstein bill, the Justice Department would have been given the authority to prevent a known or suspected terrorist from buying firearms or explosives if authorities have a reasonable belief the weapon could be used in connection with terrorism. Someone who meets that criteria is likely to be on one of the federal terrorism watch lists, including the no-fly list, which prohibits certain people from boarding commercial aircraft in the U.S.
A competing proposal put forth by Republican Texas Sen. John Cornyn would have allowed delays in sales to terror suspects but “only if [the attorney general] could prove to a judge within three business days of the attempted sale there was probable cause to suspect the buyer of ties to terrorism.
A major sticking point between the two parties’ measures was constitutional due process. Critics of the Feinstein bill argued it made it too hard for someone erroneously put on a terror watch list to challenge that decision and obtain a gun.
Senate Republicans’ approach was to notify the Justice Department if someone on one of the terror watch lists tried to purchase a gun. A special court proceeding would be triggered in which the Justice Department would have 72 hours to block the sale to investigate the individual. At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watch list to be removed.
A judge could have blocked the purchase if the government could demonstrate there was probable cause to believe the weapon would be used in connection with terrorism. Sen. Cornyn’s bill would have also given the Justice Department the authority to immediately take the prospective purchaser into custody.
Democrats said the burden of proof under the Cornyn legislation was too high to realistically prevent potential terrorists from obtaining a weapon.
The Republican proposal was backed by the NRA, but any measure supported by the NRA was opposed by Senate Democrat leaders.
But not was all rosy with the Democrat proposal. The FBI had also signaled concerns about the general thrust of the Democratic proposal in the past. During testimony to Congress in 2015, FBI Director James Comey indicated that barring someone on the watch list from buying a gun could potentially compromise terror investigations.
“It’s a little bit challenging for us because ‘known or suspected’ means it hasn’t been adjudicated in every case that somebody is a terrorist,” Comey told Feinstein during the hearing last year. “It’s somebody we’re investigating, so we don’t want to, obviously, blow our investigation. Sorry.”
This time around, however, Feinstein had wrongly anticipated that her proposal wouldn’t be a problem because it contained protections that would prevent disclosing national security investigations, she said. Her legislation would not require the Justice Department to block the sale, but rather give it the powers to do so, an aide said.
Sen. Pat Toomey (R-PA), was not satisfied with either party’s bills, saying the Democratic plan lacked due process but that Cornyn’s proposal was insufficient because it only allowed a delay to a purchase. So Toomey introduced his own bill, which would require the attorney general to submit terror lists to the Foreign Intelligence Surveillance Court, providing a way to overrule the attorney general. His bill was not put forth to be voted upon.
But Democrats familiar with the proposal said it would make it harder to block terrorists from buying guns.
However, it was correctly predicted that any bills as a proposed amendment would not have enough support to pass, perhaps because the Senate Democrats and gun control advocates lacked the political power of the gun-rights lobby and may not want to have gotten behind Republican proposals that they considered to be face-saving half-measures. It was rumored that Republicans believed they would face repercussions from highly motivated gun-rights voters and activism groups if they supported bills that were considered too aggressive.
As expected, Democrats blocked the two Republican amendments, arguing that they fell short in controlling the sales of firearms. In turn, Republicans blocked the two Democratic amendments, contending they threatened the constitutional rights of gun owners.
There is, however, an idea being put together by Republican Sen. Susan Collins of Maine that is not scheduled to be voted on, but that does apparently have some potential to pass.
Behind the scenes, several Republicans are working with centrist Democrats on a compromise that could pass the Senate. Collins backs a bill that would create a narrow list of suspected terrorists who would be barred outright from buying firearms. Her measure would also set up a broader list of suspected terrorists that would be used to notify federal authorities if someone on the bigger list tried to purchase a gun.
She wants to prevent people on two of the FBI’s terrorist watch lists from buying guns: the no-fly list and the selectee list.
Both lists deal with a person’s rights at the airport. If you’re on the no-fly list, you can’t board an airplane. If you’re on the selectee list, you get extra security screening when you try to board a plane. And under Collins’s proposal, if you are on these lists and are denied your right to buy a gun, you can challenge it, and if you win, the government has to pay your legal costs.
Her proposals are not exactly what Democrats want or what Republicans want. But that’s the essence of a compromise, and right now it looks like the only one the Senate’s got.
It’s not clear yet, however, whether Senate Republican leaders will allow Collins’ bill—if and when it’s finished—to be brought to a vote, suggesting it might not yet have backing from Republican leaders.
Nonetheless, should any proposal pass the Senate, the issue then goes before the House. In the GOP-controlled House, Republicans had no plans to act on guns and Democrats were unable to force any action, given House rules less favorable to the minority party than in the Senate.
This matter is far from over.