JURIST Guest Columnist Fredrick Vars [PDF] of the University of Alabama School of Law, proposes a compromise federal approach to the problem of guns and terrorism…

Just over two months ago we witnessed the worst mass shooting in US history, which, with 49 killed, was also the deadliest terrorist attack on American soil since 9/11. There followed a successful filibuster in the Senate to at least force votes. A rare, dramatic sit-in on the House floor failed.

But that was June. Now it seems the country has forgotten.

No one wants terrorists to have guns, but the two parties moved on before building on this common ground. While nothing passed Congress, the seeds of a compromise are buried in the failed Senate bills.

The first step is to authorize the Attorney General to obtain a judicial order barring gun purchase by persons under “reasonable suspicion” of terrorism. This would happen in advance of an attempted gun purchase and be kept secret until such an attempt. The process would be like obtaining a warrant or a gun violence restraining order under California law. A person denied a gun could have her rights restored expeditiously if she shows that the government made a mistake.

The “reasonable suspicion” language comes from Democratic Senator Dianne Feinstein’s (Calif.) proposal, but does not differ substantially from Republican Senator John Cornyn’s (Tex.) “suspected terrorist” trigger. The parties agree that this is the right population to target.

Senator Susan Collins (R-Me.) has proposed barring gun purchases by people on the narrower “No Fly List.” That proposal, which stalled, misses the mark. It would allow gun sales to too many dangerous people, and it would prevent sales based solely on executive discretion.

In contrast, the judicial order requirement in my proposal provides adequate due process and a check against overzealous listing by the executive. Even advocates of strict gun control should recognize the potential for abuse. Based on his public statements, President Donald Trump might well label all Muslims “suspected terrorists” or put them on the “No Fly List.” Of course, judicial review up front will not be perfect either, so the opportunity to correct mistakes quickly is key.

The next two components of my proposal go together. The second element would be to authorize the Attorney General without a judicial order to flag additional suspects. The FBI would be immediately notified of an attempted gun purchase by any person on this list. Third, institute a national waiting period for all firearm purchases (or at least first firearm purchases). Some states, like Florida and Illinois, already have waiting periods, but most do not. The delay would give the government time to arrest the suspect, seek a judicial order barring gun purchase, or decide that the risk warrants neither action.

The parties agree on FBI notification. And it is the Senate Republicans, with NRA support, who proposed a waiting period. To be sure, my proposal goes beyond the Cornyn delay period, which was just for terror suspects, but the expansion is critical to reducing the threat of armed terrorist attacks. Limiting the waiting period to terror suspects would alert them to the FBI’s suspicions and could lead them to speed up plans, flee, or go into hiding.

Without an across-the-board delay, the government would be forced to choose between keeping guns away from suspected terrorists like the Orlando shooter and compromising ongoing investigations. And the government cannot be expected to make a split-second decision while a transaction is taking place. National security justifies a small delay in exercising our Second Amendment rights.

The final step is to adopt universal or near-universal background checks. The effectiveness of any proposal depends on its scope. If there are easy avenues to avoid background checks, some terrorists will exploit them to purchase guns. Our best chance of preventing terrorists from obtaining firearms is to close existing loopholes at the same time as we tighten restrictions.

On this last element of the proposal, it must be conceded that there is no consensus in the Senate. Senator Christopher Murphy’s (D-Conn.) background check expansion bill failed along party lines. The public overwhelmingly favors expanded background checks—around 90% according to post-Orlando polling—so perhaps there will be movement. But even assuming continued gridlock on this issue, adopting the other three elements of the proposal—purchase bans, broad FBI notification and a waiting period—would help make it significantly more difficult for terrorists to get guns.

The political divide on guns appears stark, but gun policy on terror may be headed towards convergence. Let’s hope we get there before the next massacre.

Fredrick Vars is a professor of law at the University of Alabama School of Law. He has written several articles on the Second Amendment and waiting periods, including one most recently in the Harvard Journal on Legislation.

Suggested citation: Fredrick Vars, What Next on Terror and Guns?, JURIST – Forum, Aug. 17, 2016, http://jurist.org/dateline/2016/08/Fredrick-Vars-Terror-Guns.php.