NYTimes Editorial: Congress Should Secretly Suspend Second Amendment Rights

By Casey Harper

A New York Times editorial advocates for a new law allowing a secret court to take away citizens’ right to own a gun at the discretion of the federal government.

Citing the Orlando terror attack that left 50 dead including the shooter and 53 wounded at a gay nightclub, the piece advocates for a “no-buy” list similar to “no-fly” lists. Under the law, suspected terrorists would not be able to buy a gun. In an attempt to ensure the integrity of the lists and preserve due process, the author proposes people only be added to this no-buy list after a secret court rules they are ineligible, similar to the Foreign Intelligence Surveillance Act court hearings where the federal government obtains permission to wiretap. Under this proposal, an American who has never been convicted of a crime could be denied their right to buy a gun simply because a secret court decided it should be that way.

The piece is written by Adam Winkler, a U.C.L.A. School of Law professor. Winkler argues the secret courts are a good idea because they are already used for government surveillance, and historically, the U.S. has committed worse rights violations such as Japanese internment camps.

“If the attorney general believes a suspected terrorist should be added to the list, she should have to go to court first and offer up evidence,” Winkler writes.

Here’s how it would work: When the attorney general wanted to revoke someone’s Second Amendment rights, he or she would bring evidence to a court which would then determine if there is probable cause. The court proceedings would be secret and have no clear path to appeal.

This court proceeding, of course, would be secret. Although that denies the person included on the no-buy list the opportunity to rebut the attorney general’s evidence, we do the same thing every day with search warrants and wiretaps for criminal suspects. Our right to bear arms is no more fundamental than our right to privacy, and treating them similarly can help keep us safer from terrorists.

For maximum secrecy, Congress could assign these probable cause determinations to the jurisdiction of the existing Foreign Intelligence Surveillance Court. The judges on this court have a deep understanding of the nation’s national security threats.

Incredibly, Winkler argued in a 2006 Huffington Post article that the NSA mass surveillance program was illegal because President George W. Bush abused the FISA court. The same court that are so easily abused by the administration for mass surveillance will apparently be entirely trustworthy when it comes to taking second amendment rights.

Near the end of the article, Winkler points out his plan to subject all of America to these secret courts probably wouldn’t stop a terrorist, anyway.

“With over 300 million guns in America and private gun sales allowed with no background check whatsoever, a determined terrorist will most likely still be able to obtain guns,” he wrote. “Yet the easiest, most convenient way to buy guns — from a gun store, with the best prices and selection, like the one where the Orlando attacker bought his guns — wouldn’t be available.”

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