“There are several steps that Congress should take right away (to fight terrorism),” President Obama said Sunday in a speech from the Oval Office. “To begin with, Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security.”
Clearly, the president was frustrated. A few days earlier — and just one day after the San Bernardino terror attack that killed 14 — the Republican-led Senate had rejected just such a proposal by Sen. Dianne Feinstein. The 45-54 vote was almost entirely along party lines: All but one Senate Democrat had voted in favor of banning those on the no-fly list from buying guns; all but one Republican had voted against it. Similar legislation has been blocked in the House.
In this case, the Republicans are absolutely right; the Democrats and Obama are plainly wrong. The proposal may have have been smart politics for the Democrats, allowing them to depict their political opponents as more concerned with protecting guns and their pals in the NRA than in fighting terrorism. But the proposal that they championed would have made very bad law and set a terrible precedent.
Why? Because like it or not, the Supreme Court has ruled that the right to purchase and possess firearms is a constitutional, individual right. And under no circumstances should a person be stripped of a constitutional right by simply putting his or her name on a secret government “watch list” based on unknown evidence from unknown sources, with little to no ability to challenge it in open court. If you are one of the tens of thousands placed on such a list, your government won’t tell you why. It won’t tell you what evidence it used to place you on the list, and in fact it won’t even confirm that you’re on the list in the first place.
Basically, you’re screwed, condemned to second-class citizenship with little legal recourse.
As Sen. Marco Rubio noted in a CNN interview:
“Ted Kennedy once said he was on a no-fly list. I mean, there are — I — we — there are journalists on the no-fly list. There are others involved in the no-fly list that wind up there. These are everyday Americans that have nothing to do with terrorism. They wind up on the no-fly list. There’s no due process or any way to get your name removed from it in a timely fashion. And now they’re having their Second Amendment right being impeded upon.”
Again, that’s absolutely correct. But let’s take this an obvious and necessary step further: If “everyday Americans that have nothing to do with terrorism” end up on the lists¹, with “no due process or any way to get your name removed from it in a timely fashion,” as Rubio claims, then how do you justify using those same highly flawed, bloated lists to deny people the fundamental right to travel, a right that is also recognized by the courts?
Curiously, I’ve seen no outrage from Republicans about that kind of violation of basic civil liberties. Quite the contrary. Their concern extends to guns, and only to guns.² If you’re on the list and you want to fly to visit your grandmother in England, you can’t because the government said you can’t, and because “national security.”
But if you’re on the list and want to buy a gun, fine.
¹There are two such lists. One, known as the “watch list,” is compiled by the FBI and is reported to contain more than 1 million names. Many of those named are neither U.S. citizens nor legal residents of the United States, so their constitutional rights are not at issue. But tens of thousands are citizens, many with no idea that they have been officially labeled by their government as suspected terrorists.
The second list, the “no-fly list,” is a smaller subset of the “watch list,” containing an estimated 47,000 names. But again, even the government concedes that many on that list are probably there in error.
²In 2014, a federal judge in Oregon confirmed that the no-fly lists constitute a denial of basic liberty and a violation of constitutional due process. (I wrote about the ruling at the time.) And in a continuation of that case, the ACLU will argue in court today that the government’s proposed changes to the listing process do not resolve the problem.