Privacy Director, Liberty Coalition
Attorney, J.C. Neu & Associates
Senate Committee on Homeland Security and Governmental Affairs
May 5, 2010
Click here for Aaron Titus’ Written Testimony on S1317 and S2820 [DOC]
Chairman Lieberman, Ranking Member Collins and Members of the Committee. Thank you for allowing me to be here.
My name is Aaron Titus. I am the Privacy Director for the Liberty Coalition and an attorney at the law firm, J.C. Neu and Associates. The Liberty Coalition works with more than 80 partner organizations from across the political spectrum to preserve the Bill of Rights, personal autonomy and individual privacy. The Liberty Coalition works with, but does not speak on behalf of our partners.
I am aware that many in this audience have been personally affected by gun violence. Managing guns and other weapons is a matter of public concern. Regardless of one’s position on gun safety and gun control, the Supreme Court has unambiguously ruled that the Right to Keep and Bear Arms is an individual, Constitutionally enumerated right. The Second Amendment is not absolute, and the government may regulate the Right to Keep and Bear Arms in a number of ways.
But Senate Bill 1317 goes too far. The bill should be titled, “The Gun Owners Are Probably All Terrorists Act,” because it strips citizens of their Constitutional Right to Keep and Bear Arms without any meaningful due process. And Senate Bill 2820 should be called, “The National Firearm Registry Act” because it creates a national firearms registry, so let’s call it what it is.
National Firearms Registry
If you want to make a National Firearms Registry, then go through the front door, call it what it is, and have a meaningful public discussion.
Senate Bill 2820 creates a massive database of names and detailed personal information of each law-abiding citizen who purchases a gun.
The bill disingenuously purports to target terrorists, but in fact only one ten-thousandth of one percent of these records will belong to people on watch lists. Every year, only 200 new watch-list records will be created. But the system will generate more than 14 million new records on law-abiding citizens. Once collected, there’s no limit on what the information may be used for, and no legal requirement to ever delete it.
At the very least, we should call this bill what it is: A National Gun Registry Act.
Senate Bill 1317
Reading Senate Bill 1317, one would think that convicted terrorists are allowed to own guns. That is simply not true. Convicted terrorists cannot own guns.
Not only that, but today’s discussion totally misses the point. This committee shouldn’t spend time debating whether to take away Terrorists’ guns, bombs, cell phones, or other instruments of terror. If a person is a dangerous terrorist, then he should be thrown in jail. The only things a real, convicted terrorist should own are an orange jumpsuit and a pair of leg chains.
Assuming, for a moment, that everyone on a watch list is a terrorist as this bill suggests, then I propose that this committee start throwing every single one of those hundreds of thousands of people in jail, starting today.
But you and I know that the Constitution won’t let you do that. And if you can’t throw citizens in jail for being on a watch list, you can’t revoke their Second Amendment rights, either.
How Senate Bill 1317 Works
Right now, a citizen who is denied a firearms purchase has the right to know exactly why, and appeal. Senate Bill 1317 changes that. If a citizen’s name is on a watch list, the Attorney General doesn’t have to tell him why he was denied, if he thinks that tipping off the citizen might compromise national security.
If a citizen is able to appeal the decision in court, things only get harder and more confusing. Neither the citizen nor his attorney can see the evidence against him—they can only see summaries or redacted versions. Not even the judge may consider the unredacted evidence.
A citizen will lose his appeal if the Attorney General can prove, by a preponderance of the evidence, not that the individual poses a risk, or that the person is a terrorist, or even that the person is under investigation; rather, the Attorney General must only demonstrate that the citizen has been placed on a watch list.
Once that has been proven, the appeal is over and the citizen loses his Second Amendment Right to Keep and Bear Arms. The citizen will not have a chance to introduce evidence of innocence, abuse of Executive discretion or mount any other meaningful defense.
You know, I have heard of this type of judicial system applied to non-citizens (“enemy combatants” in Guantanamo Bay), but never to citizens of the United States, especially on a matter of Constitutional importance. Times may have changed, Mr. Chairman, but fortunately the Constitution has not.
Terror Watch Lists
Criminal and terrorist investigations must be kept confidential. But Senate Bill 1317 misunderstands that “investigation” is not “guilt.” Suspicion is not a Conviction. And the law has a technical word for people who have not been convicted of a crime: It’s called “innocent.”
Terror watch lists have no meaningful element of due process, and are therefore fundamentally different from other lists scanned by the National Instant Criminal Background Check System.
Terror watch lists, by their nature, are designed to be over-broad. A name on a terror watch list is evidence of government interest in a person, not proof of terrorism. The bald allegation of a suspicion of terrorist inclinations is insufficient evidence to overcome an individual’s Right to Keep and Bear Arms.
Mr. Chairman, suspicion is not a conviction.
Senate Bill 1317 takes away a citizen’s right to face his accusers. This bill takes away a citizen’s right to appeal. This bill takes away a citizen’s right to due process. And if you can’t throw them in jail because they’re on a watch list, then you can’t revoke their Second Amendment rights, either. Mr. Chairman, this bill is unconstitutional.
I urge this committee to reject Senate Bills 1317 and 2820. I am happy to respond to questions.