Sen. Marco Rubio has reintroduced a bill that would suspend the Second Amendment rights of anyone who has been investigated for terrorism in the previous ten years.
Like so-called “red flag” laws, the legislation does not require that a person be convicted of a crime. Instead, it allows the FBI to petition a court to suspend a person’s gun rights for an indefinite amount of time if that person has been “the subject of a terrorism investigation by any Federal department or agency.”
Sen. Rubio first introduced this legislation in 2016 following a terrorist attack on the Pulse nightclub in Orlando, Florida that left 49 people dead. It failed to pass the Republican-controlled Congress at the time, but Rubio has reintroduced the bill in hopes of passing it this term.
“After the terrorist attack at Pulse nightclub, I made a promise to improve our laws to make it more difficult for evil people to get ahold of guns,” Rubio said in a statement.“This bill is a common-sense measure that would help ensure criminals, terrorists, and others seeking to take innocent lives are not able to acquire firearms, while also protecting the due process and Second Amendment rights of innocent, law-abiding Americans.”
The bill requires all federal agencies to send to the FBI a complete list of individuals who are or have been investigated for terrorism. The U.S. Attorney General must then ensure that these lists are incorporated into the National Instant Criminal Background Check System (NICS), which is used to approve all firearm transfers from federal dealers.
If anyone who has been investigated for terrorism within the last 10 years tries to purchase a firearm, that purchase will be delayed for no longer than 10 days, according to the bill. In the interim, the FBI may file an emergency petition with a court seeking to suspend that person’s gun rights and arrest them.
The court must grant the petition if it finds “probable cause to believe that the person is engaged, or has been engaged, in conduct constituting, in preparation of, in aid of, or relating to terrorism, or providing material support or resources therefor.”
“Probable cause” is the standard usually required before police make an arrest, conduct a search, or receive a warrant. Most red flag laws require a higher standard of evidence.
The accused person does have the ability to attend the hearing with legal counsel, according to the bill. The court is directed to ensure that the person receives actual notice of the hearing and has the opportunity to participate.
Terrorist “watch lists” have been criticized by civil rights watchdogs since they were instituted in the Patriot Act of 2001. It’s unclear how these lists are compiled or managed, and some accuse federal agencies of using them to attack political opponents. A federal judge ruled in 2019 that these lists violate the constitutional rights of U.S. citizens, but law enforcement agencies continue to maintain them.