During an Oval Office speech following the San Bernardino shootings in December 2015, President Obama said: “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.”
Congress, of course, did nothing.
But after another wave of mass shootings at home and abroad, the push to bar people on the No Fly List from buying weapons has begun anew. And this time, there appears to be a fragile consensus in Congress – at least in the Senate – that suspected terrorists shouldn’t be able to legally purchase a gun.
On June 21, nine senators, led by Republican Susan Collins of Maine, unveiled the most recent “no-fly, no-buy” proposal after two partisan measures – one proposed by Sen. Dianne Feinstein (D-California), another proposed by Sen. John Cornyn (R-Texas) – failed to reach the 60-vote threshold in June.
“Surely, the terrorist attacks in San Bernardino and in Orlando that took so many lives are a call for compromise [and] a plea for bipartisan action,” Collins said. “If you are too dangerous to fly on an airplane, you are too dangerous to buy a gun.”
The public broadly supports “no-fly, no-buy” legislation like the measure that Sen. Collins is proposing. A Quinnipiac University poll released on June 30 found that a full 86 percent of registered voters back legislation aimed at barring people on the government’s No Fly List from purchasing a gun in the U.S., compared with just 12 percent who oppose it. Support for these measures even gets overwhelming support from households with a gun: 83 percent support “no-fly, no-buy,” compared with 14 percent who don’t.
It’s no wonder why. Our laws prevent many dangerous people from buying firearms or explosives. We bar habitual drug users, people who have committed domestic violence, and dishonorably discharged veterans from purchasing weapons. But suspected terrorists can buy as many guns as they want. Something is certainly wrong with the status quo.
Arguing that we should ban suspected terrorists from freely purchasing guns, thus, is a very good talking point. But, there is a catch.
While “no-fly, no-buy” legislation sounds good, it’s absolutely terrible policy.
To illustrate why, let’s take a closer look at Sen. Collins’ proposal.
Sen. Feinstein’s proposal failed because Republicans wanted more assurances that an individual is likely to commit terrorism before blocking the sale of a gun. Sen Cornyn’s proposal failed because Democrats saw the bill as artificially hamstringing federal officials, rather than empowering them, from preventing a suspected terrorist from acquiring a weapon. The Collins compromise attempts to walk the fine line between both parties’ ideological agendas.
Under Sen. Collins’ proposal, the attorney general would be able to prevent people on two specific watch lists from buying a weapon: the No Fly List and the Selectee List. Both lists deal with a person’s rights at the airport. If you’re on the No Fly List, you can’t board an airplane. If you’re on the Selectee List, you get extra security screening. And if you fit the criteria for being on both of those lists, the attorney general could then ban you from purchasing a gun.
There is an obvious problem with this proposal.
Collins’ proposal tries to placate Republican concerns by requiring the attorney general to rely on multiple watch lists – as opposed to just one – before barring a sale. But the two lists Collins picked are puzzling. People on the No Fly List are too dangerous, according to the FBI, to fly on an airplane. People on the Selectee List are dangerous enough, again according to the FBI, to require additional screening, but they are not too dangerous to fly on an airplane.
So what’s the point of including the Selectee List? Presumably, if a person is on the No Fly List, they should automatically qualify for inclusion on the Selectee List. If they aren’t also on the Selectee List, that would appear to be a massive government oversight. Does this mean that we have suspected terrorists in our airports stuck in limbo between airport security and the jetway, able to pass through selective screening at TSA but unable to board any airplane?
Perhaps the inclusion of the Selectee List is simply an outright admission of the deficiencies inherent in the No Fly List. But if that’s the case, it serves more to underscore the risks of relying on these lists to infringe upon a constitutional right than as an argument buttressing the wisdom of Sen Collins’ No-Fly, No-Buy proposal.
The biggest issue here, however, has to do with due process rights.
Sen. Collins says that “Americans and green card holders would have due process rights to appeal in the Court of Appeals following a proscribed procedure.” I assume Collins meant to say “a prescribed procedure,” which would be a procedure laid out in her bill, as opposed to “a proscribed procedure,” which would be a procedure forbidden by her bill.
Why, though, should the burden be on the individual to “appeal in the Court of Appeals”? “No-fly, no-buy” bills would empower the attorney general to strip away an individuals constitutional right to keep and bear arms. Shouldn’t it be the government’s responsibility to justify this action prior to it even occurring, rather than it being the individuals responsibility to seek recourse after the action unjustly occurs? Collins’ bill makes the deprivation of Second Amendment rights permanent unless the would-be buyer appeals. Oh, and he or she would also have to prevail.
Collins has stated that the attorney general, rather than the individual, “would have the burden of proof” on appeal. But burdens can be heavy or light, and the standard of proof can make a big difference in the adjudication of a particular case.
Collins’ proposal is eerily silent on the critical question of what standard would apply. What happens when a suspected terrorist argues that the government’s suspicions are wrong? Are we talking about applying proof beyond a reasonable doubt? Clear and convincing evidence? A preponderance of the evidence? Probable cause? Reasonable suspicion? Or something even weaker? This is important. Again, we are talking about the U.S. Constitution.
The due process issues with Collins’ proposal are therefore troubling. But they are made even more troubling given the inherent problems with the No Fly List, which is widely held in disrepute. Per The Guardian, the No Fly List “contains 700,000 names, according to one estimate, and has mistakenly included infants, US military veterans and politicians including Edward Kennedy and John Lewis.” In other words, it is “unwieldy, unfocused and unlikely to achieve its aims – a sledgehammer to crack a nut.”
We don’t know much about the Selectee List. But, if you’re confident that it accurately identifies people who should be required to undergo selective screening, you’d be wise to reconsider.
We shouldn’t just wave these concerns away in the interest of passing what appears to be the lowest of the low hanging fruit when it comes to gun control. And make no mistake, “no-fly, no-buy” legislation is precisely that.
The push for “no-fly, no-buy” illustrates just how much both Republicans and Democrats are willing to use civil liberties as political leverage. Or, as David Graham wrote in The Atlantic in December, “The current debate suggests the extent to which the leading voices in the parties are willing to rearrange their positions around hot-button issues like gun rights, and shows how civil liberties tend to be treated as a tactical tool, exalted when they’re politically useful and forgotten when that’s more expedient.”
There is no reason – constitutional or otherwise – that we should’t have reasonable regulations of guns. And perhaps in the future the No Fly List could serve as one tool for it. But until it is fixed, it shouldn’t be used to restrict people’s constitutional rights. People in this country have due process rights, and those rights need to be respected.