Prepared Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Aftermath of the Orlando Terrorist Attack
Commerce, Justice, Science and Related Agencies Appropriations Act
Monday, June 20, 2016
Mr. President, I rise today to address three topics.
First, I want to express my unwavering support for those who were killed and wounded in Orlando and for their families, friends, loved ones, and community members. This terrorist attack represents a great tragedy and an affront to our way of life and very existence as Americans.
I look forward to doing what I can as Chairman of the Judiciary Committee to support and give the FBI the tools it needs to investigate the circumstances of this attack by a radical Islamic terrorist.
All Americans have every reason to be upset and even furious over the deadliest attack since the awful events of September 11th.
I too, am angry. I am angry that this individual was interviewed twice and yet evaded detection.
I am angry that this radical made his plans known to others, and generally raised suspicions of others, yet was still able to carry out his horrific plot.
And I am upset that the attack in a sense reflects the failure of our foreign policy.
There are more lone wolf attacks because there are more lone wolves.
I was asked recently, why does it make any difference whether President Obama references “radical Islamic terrorism” or not?
The answer is that growing numbers of jihadists are spewing radical Islamic terrorist ideology over the internet, radicalizing Americans into lone wolves.
President Obama said after the Orlando attack that the shooter was not involved in a “larger plot,” as if that would provide comfort.
By not calling out that the attack developed from radical Islamic terrorism, he failed to recognize the dangerous ideology that derives from radical Islam and its deadly influence on individuals who are not part of any “larger plot.”
Moving on to my second course of business, I am here to talk about guns and the Second Amendment.
Over the course of multiple hours on Wednesday, we heard my colleagues across the aisle take all of their anger and focus it on firearms.
Not the war on terror, not radical Islam, not our porous borders, but guns.
Through the hours of finger wagging, many things were stated as the gospel truth and if we are truly to have a discussion regarding guns, those misleading or incomplete statements must be corrected.
We can have a debate on the merits.
My colleagues across the aisle are entitled to their opinions, but they are not entitled to manufacture their own facts.
From the first moment the Minority leader hit the floor on Wednesday, we heard erroneous statements on the law on gun purchasing by those who would commit terror. He cited comments from a jihadist that would-be terrorists can go to gun shows and buy fully automatic weapons without a background check.
Well, they can’t.
Even the Washington Post Fact Checker gave the minority leader two Pinocchios on this claim.
No one can buy a fully automatic weapon without a background check. The gun used in Orlando was not a fully automatic weapon. It was a semi-automatic weapon, where each pull of the trigger makes one shot. Those guns are used legitimately for recreational purposes by large numbers of law-abiding Americans for target practice. Surely the minority leader knows the law on this point. The fact that a radical Islamic terrorist would lie about the law is not a reason that the law needs to be changed.
The minority leader also invoked what he referred to as the “Terror Loophole.” So did the Senator from Connecticut, whose amendment is before us.
What is this terror loophole? To hear the minority talk about it, it means that terrorists are able to lawfully purchase firearms.
This is nonsense.
Anyone convicted of terrorism can’t legally buy a gun. For people we know are going to commit terrorism, I hope that we’re not only preventing that individual from buying a gun, but we’re either killing, arresting, or detaining that individual depending on where he or she is found and in what capacity.
What the other side means when they say terror loophole is someone who might be on any number of flawed terrorist watch lists.
If we actually had a list that contained only actual terrorists, I would gladly support an effort to not only prevent them from acquiring firearms, but also to detain and bring them to justice as quickly as possible. What we really have are these flawed watch lists that contain errors and are at the same time both under- and over-inclusive.
Time and again, the other side says they support Second Amendment rights.
Don’t believe them.
The terrorist watch list amendment they now propose achieves the remarkable feat of violating two different provisions of the Bill of Rights at the same time. It violates the Second Amendment right to keep and bear arms and it violates the Fifth Amendment’s Due Process Clause.
The Senator from Connecticut has discussed on the floor that the Second Amendment is not absolute. That is a truism. No one says it is absolute.
The question for the other side is, what rights do they think the Second Amendment protects? Secretary Clinton has refused to say that she believes that the Second Amendment protects a fundamental individual right. If it doesn’t, then what individual rights of gun ownership does it protect? And the terrorist watch list amendment also doesn’t treat the Second Amendment as protecting a fundamental individual right to own any guns.
The amendment violates the Second Amendment because a fundamental constitutional right cannot be infringed without due process of law.
The executive branch compiles a secret no fly list without notice to the individual, any opportunity to be heard, or any judicial finding that there is probable cause to believe that the individual should be on the list.
As a result, the list fails to include some who should be on it.
And it includes people who shouldn’t. We know that our former colleague, Senator Kennedy, was on the list. This senator helped a former high-ranking army officer be removed from the list.
The statement that the other side made that there is no due process problem because all these individuals are dangerous is false for many reasons, including that there is no proof that they are all actually dangerous.
Depriving people of constitutional rights based on an inaccurate list and no process at all prior to that denial of rights violates due process.
One list is compiled for purposes of allowing flight, which, unlike gun ownership, is not a constitutional right.
It was never designed for any other purpose.
To apply it to gun purchases is, in the words of an Obama Administration official, “apples and oranges.”
But the amendment treats apples as oranges.
The other side just doesn’t care that the Feinstein amendment is unconstitutional.
We know that because experts have made this indisputable point for six months since the amendment was first proposed.
But when the amendment is offered again, the same flaws appear.
Like the Bourbon kings, the sponsors have learned nothing and forgotten nothing.
To be sure, the Bush Administration proposed a similar wrong-headed idea.
But that was before the Supreme Court recognized that the Second Amendment protects an individual right to gun ownership.
And Congress did not pass that proposal.
It is important to note that some of the most prominent voices against the terrorist watch list amendment are people who support gun control.
For instance, in an editorial featuring a photo of Senators Feinstein and Murphy, the Los Angeles Times asked and answered the question this way: “Should people on the no-fly list be able to buy guns? Yes.”
The editorial pointed out correctly that people on the various no-fly list and terrorist watch lists are not convicted of any crime.
We don’t know that a person is actually dangerous because he or she is on the list. The vast majority of the people on the list are foreigners who are already prohibited from buying guns. And the Los Angeles Times accurately stated that since the Second Amendment is a fundamental right, the “reasonable suspicion” standard in the Feinstein Amendment is too weak a standard for a government agency to abridge that right without judicial supervision.
And it also faulted the amendment for only allowing a challenge to a gun sale after it was denied, with no judicial involvement prior to that point.
The editorial also noted that the San Bernardino shootings would not have been stopped had an amendment prohibiting people on the terrorist watch list from buying guns been in place.
And I will add, neither would the killings in Orlando, since this person was not on the list at the time of the gun purchase.
Claims made to the contrary on the floor are without merit.
My amendment, which I will discuss in a little while, and the Cornyn Amendment, would have given law enforcement notice that this individual sought to purchase a gun, for them to take appropriate action.
The Los Angeles Times was not the only major newspaper that editorialized against the Feinstein Amendment.
So did the largest newspaper in my state of Iowa, the Des Moines Register, for many of the same reasons.
I know that the minority leader pays close attention to the Register’s editorials.
But if he blew up their editorial against the Feinstein Amendment on a chart behind him on the Senate floor as he has with various other of their editorials, I must have missed it.
Just this past week, the New York Times ran an opinion piece by Adam Winkler, another Californian, and a law professor at UCLA.
Prof. Winkler noted that the National Rifle Association has raised objections to the Feinstein Amendment, in particular, that the Attorney General has too much leeway under that Amendment in placing people on the list based only on suspicion.
And they object as well to the bill’s flawed process of denying the sale based solely on the Justice Department’s say so, and allowing a prospective purchaser to sue the Department in court, but only after their right is denied.
But unlike many other gun control supporters, Prof. Winkler wrote, “We should take the N.R.A’s criticisms seriously.
“Due process of law is a vital constitutional principle and Americans have a right to own firearms for self-protection.”
Prof. Winkler also wrote, “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.
“Only after concluding that the attorney general has probable cause should the court approve the denial of the suspect’s right to own a gun.”
This proposal’s violation of the Second Amendment is demonstrated by considering whether the other side would condition the exercise of any other constitutional right in the same way.
Lone wolves are susceptible to radical Islamist terrorist propaganda on the internet.
But the sponsors of that amendment would never propose curtailing a person’s First Amendment right to search the internet because the Attorney General suspected they might be a terrorist.
What if inclusion on one of these lists deprived an individual of their right to worship at a church, mosque, or temple?
Or their ability to qualify for public assistance, the ability to obtain an abortion, or their right to vote?
It’s not credible to believe that the Senators who support the amendment from the Senator from California would be so passionate about stripping these other rights and benefits based upon inclusion on a flawed list.
Let’s talk straight.
Taking away a fundamental constitutional right based on a flawed list and the Attorney General’s suspicion can’t be called closing a terrorist loophole.
I’m not sure how you tell constituents that you believe that the Second Amendment guarantees an individual right to keep and bear arms if you vote for that amendment.
The terrorist watch list amendment is not only unconstitutional, but is based on faulty premises.
Its supporters would have the public believe that a person on that list can go buy a gun without anyone stopping them. This is simply not true.
At a Judiciary Committee hearing last December, FBI Director James Comey stated that currently the FBI is notified when an individual in the terrorist database attempts to buy a firearm.
More to the point, Mr. Comey stated there are quote “a variety of things that we do when we are notified that someone on our known or suspected terrorist database is attempting to buy a firearm.
“The FBI is alerted when that is triggered, and then we do an investigation to understand are there disqualifiers that we are aware of that could stop the transaction. And if the transaction goes through, the agents who are assigned to that case, to that subject, are alerted so they can investigate.”
So let’s be clear, the FBI is notified when someone in the database attempts to purchase a firearm and then they investigate the individual.
All of the rhetoric you heard about the FBI not knowing about a particular purchase is not true; they are notified.
The reason they were not notified in Orlando is because the terrorist had been removed from the watch list.
There have been so many poorly reasoned arguments and misstatements of law and fact on the Senate floor that cry out for a response.
One thing this attack should show is the need for increased ability of our intelligence agencies to identify and monitor individuals who are either tied to radical Islamic terrorism or are potential lone wolves.
Recently, a senator spoke of his unwillingness to give the FBI additional surveillance tools in the form of national security letters for fear that the FBI might use that power as it had unfairly investigated the likes of Martin Luther King, Jr.
This same member came to the floor Wednesday, demanding we used a flawed list to deny Second Amendment rights without due process.
I don’t see how it’s possible to simultaneously deny the FBI the tools its needs to fight terrorism, but favor depriving the civil liberties of lawful gun owners based upon a flawed list that could be subject to the same overreach.
The Senator from Connecticut has offered an amendment requiring universal background checks.
Such an amendment would not reduce crime, according to the Deputy Director of the Obama Administration’s National Institute of Justice.
He wrote that the problems of criminal obtaining guns through straw purchases and theft, the main ways they do get them, “would likely become larger if background checks at gun shows and private sellers were addressed.”
And the amendment of the Senator from Connecticut would eliminate private sales.
Talk about unintended consequences.
In the same memo, the Deputy Director concluded concerning universal background checks that their “[e]ffectiveness depends on … requiring gun registration.”
Criminals already don’t comply with background checks.
When “universal” checks are circumvented, we will be back here debating gun registration.
We should not do anything that will further the cause of gun registration.
In addition, the Senator from Connecticut and others invoke the so-called “gun show loop hole.”
That is the leading basis offered for his amendment.
Anyone watching the floor Wednesday and today would be left with the impression that people who buy a firearm at a gun show aren’t subject to a background check.
In fact, all gun show purchases made from commercial gun dealers require a background check.
These commercial gun dealers, or federal firearms licensees as the law refers to them, typically make up the majority of the gun vendors at gun shows.
So, let’s be clear, if someone goes to a gun show and purchases a firearm from a commercial gun dealer, they are subject to a background check, period.
So then, who are these people who aren’t subject to a background check?
If you’re an individual and you want to sell your gun to another individual, you may do so, assuming you don’t know or have reasonable cause to believe that such person is prohibited from owning a gun.
The Government does not dictate where this sale takes place.
You can sell your hunting rifle to your neighbor’s daughter and you can make that sale in your home, driveway, or a parking lot.
You can also make this sale to another individual at a gun show.
This is what is referred to as a peer-to-peer transaction; two adults engaged in a personal transaction.
Just as there is no background check required in your driveway, there generally is no background check required when that private, peer-to-peer sale happens to occur at a gun show.
This is not a loophole in the pejorative sense of the word; this is an American lawfully selling their property to another without federal government involvement.
In this same vein, to hear my colleagues discuss it, you’d assume that these gun shows were lawless free-for-alls for felons and terrorists to obtain their newest illegal weapon.
In fact, local, state, and federal law enforcement are often present at gun shows, both in uniform and covertly in plain clothes.
They monitor and intervene in suspected unlawful firearms sales such as straw purchasing, attempted purchases by prohibited individuals, and the attempted sale of illegal firearms.
As the Washington Times reported late last year, law enforcement arrests at gun shows hit new highs last year.
I recently attended a gun show in Iowa and there was a robust law enforcement presence.
But we have heard that communities that would otherwise be violence-free due to their strict gun control laws are dangerous because of people who buy guns at gun shows in other states and bring them to those otherwise safe cities, causing large numbers of homicides.
This claim has no basis in reality.
Federal law enforcement is present at gun shows.
They monitor vehicles with out of state license plates.
They stop cars from such shows that head to cross state lines.
Their important efforts to enforce the law and to protect us all should be praised and recognized, not minimized or omitted.
In fact, enforcement of any kind has yet to be a topic in this debate.
The push is for new gun control measures without any appreciation for what can be done to address the problem of violence with the laws already on the books.
President Obama has stated unequivocally that firearms enforcement has been a priority for his administration.
This simply is not true.
The Obama administration chose to focus its criminal justice resources elsewhere.
Federal firearms prosecutions are down at least 25% under this President.
In addition, he suspended successful programs specifically designed to thwart firearms offenses.
Unfortunately, as has so often been the case with the Obama Administration, the rhetoric just does not match the action.
As I have repeatedly called for, we need greater enforcement of the existing law, which simply has not happened under this administration.
In fact, in a remarkably senseless move, the Obama Administration eliminated an earlier restriction on the ability of foreign citizens to purchase guns unless they had lived in a particular state for 90 days.
Remember that when considering that asylees or refugees or visitors who have not been screened before entering this country under the visa waiver program can legally buy a gun.
Last week, the Senator from Connecticut contended that there is less gun crime and fewer homicides in states that have passed strict gun control laws, like his state.
Perhaps gun crime has declined there.
But homicide rates are higher in Connecticut than in many states that provide greater protection of gun rights, such as my state of Iowa.
And leaving aside the question of causation versus correlation, all one has to do is look at Maryland to refute the claim that imposing tougher gun control reduces crime.
Maryland under its prior governor imposed some of the toughest regulations on purchasing guns.
What has happened?
Murders in Maryland, and particularly in Baltimore, have increased dramatically.
Murder is increasing right here in Washington, DC despite very stringent gun control laws.
The other side wants it both ways, heads-I-win, tails-you-lose.
Where crime falls and state laws are stringent, they say the state laws work, regardless of laws anywhere else.
Where crime rises in states with gun control, they argue it is because other states have lenient laws.
You can’t apply a situational analysis to the effectiveness of state gun laws.
The Washington Post recently reported a study that found no correlation at all, much less causation, between homicides and state gun laws.
And that same newspaper’s Fact Checker gave my colleague’s claim three pinocchios.
Similarly, we hear that if we only reenacted the assault weapons ban, we could stop mass shootings.
This is an argument not for a policy that has never been tried, but a policy that has been tried and failed.
Nonetheless, for some inexplicable reason, we continue to hear calls for an assault weapons ban.
Columbine occurred when the assault weapons ban was in effect.
Murder rates continued to fall after the assault weapons ban expired.
And even Justice Department-funded research found the effects of the ban on crime to be none to minimal.
But even when gun control fails, the calls to enact more never stop.
Additional gun control, as William F. Buckley, Jr. stated in a different context, was once “a fixed rational conviction, then blind faith, and now … rank superstition.”
Once again, the Washington Post fact checked the Democrats’ erroneous claim and gave it three Pinocchios.
The Senator from Connecticut has also statements made about online purchases of guns, as if a would-be terrorist could order one from Amazon and it would show up at their door without a background check.
That is not the law, either.
Guns can be ordered online.
But anyone who orders a gun from out of state or from a licensed dealer online is not allowed to actually take possession of a gun without undergoing a background check. In-state private sales are not subject to that requirement, but that is true of all in-state private sales whether or not advertised on the Internet.
The Senator from Connecticut’s amendment would create a new federal felony for not reporting a lost or stolen gun to local police and to the U.S. Attorney General.
This new crime would apply only to lawful gun owners and not to criminals.
The amendment provides, “It shall be unlawful for any person who lawfully possesses or owns a firearm…” to fail to report the theft or loss.
There is no requirement that a person who unlawfully owns a gun report its threat or loss.
This provision poses a major threat to freedom.
Because in America, we prohibit criminal actions.
Although that limits freedom, it does so much less than a law that criminalizes inaction.
It is very rare to criminalize inaction.
Only a few classes of people have an obligation to act, like police officers and doctors.
But for ordinary citizens, this is rare.
One very limited exception is to file a tax return, and it took a constitutional amendment to give the government the power to mandate that.
We should not impose a prison sentence of up to 5 years on a law-abiding person who fails to act.
I have been calling the Second Amendment a fundamental right.
What does this mean to you and me as Americans?
It means that the right to bear arms falls into the same category as our other most closely held individual rights: the right to free speech, the right to freedom of religion, and the right to due process under the law.
It should be emphasized that the Second Amendment right to bear arms is an individual, fundamental constitutional right.
Let me remind my minority colleagues of this as they are ready to run roughshod over the Bill of Rights.
Finally, I now want to talk about my amendment, which will be offered as a side-by-side with the Murphy amendment.
The “Protecting Communities and Preserving the Second Amendment Act of 2016” has five key components that are designed to fix our current background check system, among other things.
First, as we all know from our own life experience, a database is only as good as the data it contains, with accuracy and completeness being paramount.
Our National Instant Criminal Background Check System, or “NICS” is the background check database for firearms purchases.
This database needs improvement.
In that vein, my amendment requires that agencies containing relevant records make their submission to NICS a priority and provides specific guidance that federal courts are to upload their records to NICS forthwith.
Yes, we currently have a database that contains inconclusive FEDERAL court records; there is simply no excuse for this.
In addition, this amendment incentivizes states to submit relevant mental health records to NICS.
And my amendment has real teeth, authorizing $125 million for operating and improving the NICS system.
Next, my amendment modernizes the prohibition on those with certain mental illness or involuntary commitments from acquiring or possessing firearms.
We not only update the definitions, but provide critical due process protections for individuals like veterans and others prior to an adjudication of mental incompetence.
Contrary to what some have said, my amendment does not permit someone who has been involuntarily committed to a mental institution to legally purchase a gun simply by virtue of their release.
A second, additional requirement must be satisfied as well.
Either a court or similar body must make an adjudication, or an appropriate official of the institution must find, that the individual poses no danger to himself, herself, or others.
Mere release from the institution, for instance because of a need to find space for another individual, will not allow the person to be able to buy a gun under the plain terms of my amendment.
Third, my amendment contains multiple provisions that requires agencies to report to Congress on NICS records submissions, firearms prosecutions, declinations, and convictions, as well as federal ammunition purchasing.
There is also a requirement that any Department of Justice component that wishes to use the potentially dangerous tactic of “gun walking” obtain direct approval from the Attorney General, Deputy Attorney General, or the Assistant Attorney General for the Criminal Division and include an operational plan with built in safeguards to prevent firearms from being transferred to a third party as occurred in the fatally flawed “Fast and Furious” investigation.
Finally, my Amendment includes a provision that would alert the authorities if a firearms or explosives transfer request involves a person who is, or within the previous five years was, investigated as a known or suspected terrorist.
This notification provision would ensure that law enforcement is alerted when all those who are, or were within the last five years, suspected of terrorism, seek to obtain a firearm or explosive.
This provision ensures protection of Americans’ fundamental Second Amendment rights, but also alerts key law enforcement officials to the possibility of a terrorist plot.
The other sides says that no progress is being made on gun crimes.
But my amendment would improve the situation, even for people who would favor going further.
We can make important improvements, such as through my amendment.
Senators who are unwilling to support important progress are putting a higher premium on politics.
The Second Amendment right to bear arms is a fundamental right and any legislative action must start and finish with recognition of this fact.
I yield the floor.