A bipartisan version of the “no fly, no buy” gun control legislation sought by congressional Democrats survived a procedural vote Thursday, but remains short of enough votes to be adopted.

The bill was proposed by Sen. Susan Collins, R-Maine. Her plan would ban people on two federal terror lists from buying guns, but include an appeal process to address Republicans’ concerns that people will be unjustly stripped of their Second Amendment rights if they are wrongly included on a government list. She offered the proposal as an amendment to a spending bill.

Senate Majority Leader Mitch McConnell, R-Ky., proposed tabling the measure, which would have pushed it to the sidelines and all but killed it. By a 52-46 vote, the Senate kept the bill alive.

However, because the bill needs 60 votes to pass, its eventual fate remains uncertain.

Majority Whip Sen. John Cornyn, R-Texas, had called the voting a “test vote to see what it looks like.”

The Collins bill would ban sales to about 109,000 people, including 2,700 Americans, who are on two lists: The no-fly list and a so-called selectee list, which allows individuals to fly but requires extra scrutiny at airports. The bill gives individuals the right to take the federal government to court to appeal a denial. It also notifies authorities if a prospective gun buyer was on broader terrorism watch lists within the past five years.

The measure was one of two voted on by the Senate.

A proposal by Sen. Ron Johnson, R-Wisc., received only 31 votes in support. Although his goal was similar to that of Collins, his bill put the burden of proof on the government, forcing it to go to court to show why an individual should be blocked from buying a gun.

“We were trying to get something merged between Sen. Collins’ approach and we were unsuccessful in doing that,” Cornyn said. Of the two bills, he said, one “provides for due process, and one … does not. “

Cornyn said he also thought it was time to debate other subjects.

“I think we need to be engaged in something more constructive that would’ve actually stopped the Orlando shooter,” he said. (For more from the author of “Senate Takes Test Votes on Gun Bills; One Remains Alive” please click HERE)

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While everyone is waiting with bated breath for the super legislature — aka the Supreme Court — to issue its opinions on cases involving abortion, affirmative action, and immigration, the big news from today is what it declined to consider. Following a disturbing pattern of allowing lower court decisions chipping away at the landmark Heller decision to stand, the high court declined to grant cert to petitioners in the case involving the sweeping gun and magazine bans in New York and Connecticut (New York State Rifle and Pistol Association el al. v. Cuomo).

Following the Sandy Hook shooting, states like New York and Connecticut banned a bunch of semi-automatic rifles containing cosmetic features that make them look scary. They also require forced registration of those firearms already owned by private citizens. Additionally, they banned magazines that hold more than 10 rounds, and in the case of New York, mandated that they not be loaded with more than seven rounds. Initially, New York banned all magazines that hold more than seven rounds, but had to modify the law because most manufacturers don’t even make such small magazines except for sub-compact carry pistols.

While almost every circuit court found a constitutional right to gay marriage, none of them thus far have found a constitutional right to own common guns and ubiquitous magazines, thereby upholding the laws in the blue states. The Second Circuit upheld all the provisions of the New York and Connecticut laws except for the seven round load rule. Despite the Heller decision’s clear constitutional finding that individuals have a right to own and bear common self-defense weapons, the Second Circuit felt that a scary looking pistol grip on a commonly used weapon deems it a substantial governmental interest — enough to limit the individual right to own such a weapon. On Monday, the Supreme Court refused to hear an appeal of the Second Circuit’s decision.

Typically, one cannot read too much into the Supreme Court’s decision not to grant cert to those seeking to overturn a lower court’s decision. After all, justices have limited time and resources and cannot hear every appeal. Moreover, they often like to wait for a circuit split before rendering a final decision. But following the Heller decision affirming the plain meaning of the most sacred of inviolable rights, how can they continuously allow circuit after circuit to chip away at Heller — both by banning common guns and magazines and by categorically upholding plenary bans on right to carry? They have already refused to consider two other appeals on cases banning gun ownership and have not granted cert to any case where a circuit court has upheld bans on carrying outside one’s home. The Second, Third, Fourth, Ninth, and Tenth Circuit Courts have all ruled there is no right to self-defense outside the home — in contravention of the plain language of the Heller decision.

Indeed, in the case of lower courts upholding sweeping gun bans, the silence of more than three justices willing to grant cert (it takes four) is deafening. As Justice Thomas has noted in his dissent on the denial of cert on the two previous assault weapons bans, the other justices (presumably Roberts and Kennedy included) are clearly allowing the Second Amendment to become a second-class right. [1] How can Kennedy and Roberts decline to join in the vote to hear the appeal when the lower courts are vitiating the plain implications of Heller? In Heller, the Supreme Court made it clear that governmental interest cannot be factored in to mitigate an individual right to own or bear firearms because the Second Amendment “is the very product of an interest-balancing by the people,” and “[t]he very enumeration of the right takes out of the hands of government… the power to decide on a case-by-case basis whether the right is really worth insisting upon.” [2] How then can they allow the lower courts to uphold sweeping gun bans on the basis of a government interest for public safety, especially in the case of the Seventh Circuit which upheld the Illinois assault weapons ban simply on the basis that it “may increase the public’s sense of safety.” [3] Those pistol grips and picatinny rails on the rifle are sure scary. If looks could kill! Maybe we should limit the First Amendment’s right to assemble in large numbers because large crowds scare people.

The ongoing debate over gun rights in the courts demonstrates once again that even as the courts create new super rights for favored classes or for foreign nationals, they can’t be relied upon to protect the most basic rights of Americans. It also demonstrates that even if we succeed in filling the current Supreme Court vacancy, given that the lower courts are unanimously against gun rights, we can’t even count on five justices willing to overturn them. The judiciary is a dead end for those seeking preservation of constitutional rights in the long run. (For more from the author of “SCOTUS Once Again Chips Away at Gun Rights” please click HERE)

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Retired U.S. Army Gen. David Petraeus, who has long resisted calls to run for political office, is teaming up with retired NASA astronaut Mark Kelly to create a new group urging greater gun control.

The two announced on Friday that they were launching Veterans Coalition for Common Sense to encourage elected leaders to “do more to prevent gun tragedies.” The group will feature veterans from every branch of the military who are urging lawmakers to toughen gun laws, the organization said in a news release.

“As service members, each of us swore an oath to protect our Constitution and the homeland. Now we’re asking our leaders to do more to protect our rights and save lives,” said Kelly, the husband of former Arizona Rep. Gabrielle Giffords and co-founder of Americans for Responsible Solutions, a group that advocates for tougher gun laws. (Read more from “Right Before Orlando Slaughter, Ex-CIA Head Gen. Petraeus and Astronaut Mark Kelly Launch Gun Control Group” HERE)

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