I’m not an expert on guns. I don’t even own one. For this post I do not want to get into the question of which sorts of regulations of guns are reasonable or constitutional.
I do see a lot of very weak arguments being used in current debates. I’ll focus just on the very concerning one that the No Fly List ought to be used to deny substantive rights beyond flying. It’s a shoddy list as it is and raises significant concerns in the travel context. The last thing we should do is expand its use.
President Obama has been pushing this idea:
Right now, people on the No-Fly list can walk into a store and buy a gun. That is insane. If you’re too dangerous to board a plane, you’re too dangerous, by definition, to buy a gun
Fundamentally the list is pre-crime profiling. Not even based on science. And it’s also done very very poorly. People get on the list by mistake, because they’re related to someone who is on it, or because they visited the wrong country in the wrong year. .
It’s a secret list that people haven’t been entitled to know they are on, how they got on, or to confront the evidence relied upon to put them on it. Legally there is very little recourse, and when challenged the government claims ‘state secrets.’
What we actually need are robust due process protections for the No Fly List. People wind up on the list arbitrarily, by mistake, and without significant evidence.
The list is an absolute affront to the right to travel, an example of government run amok during the George W. Bush administration. This isn’t a partisan point – the list was begun under a Republican administration, its use is proposed for expansion under a Democrat administration, but it’s terribly broken and antithetical to American liberty. It’s both frightening and surreal to see it used to deny rights beyond even travel.
- Formal responsibility for the list rests with the TSA and under 49 U.S.C. § 46110 inclusion is only reviewable by circuit courts in which judges are required to defer to the TSA’s judgment about all alleged facts and are permitted only to review the administrative record created by and provided to them by the TSA itself.
- Until this year the TSA wouldn’t even tell people whether they were on the list (making it difficult to sue to get off the list when you can’t prove you’re on it). The TSA does not tell people why they are on the list.
- Decisions to put someone on the no fly list are based on predictive pre-crime profiling rather than actual evidence about the individual’s actions or intentions. This is a huge leap in our justice system.
- Unlike in Minority Report there’s not even a clear scientific basis upon which people’s intentions and actions are being predicted.
- You can get on the list just by being related to someone (guilt by association) suspected of terrorist involvement. Or just traveling to the wrong country at the wrong time. An army veteran and civilian military contractor was placed on the list for having visited Yemen in 2009. Or because someone at the FBI checked the wrong box on a form by mistake, or failed to check a box by mistake. (Update: Or in retaliation for refusing to become an FBI informant.) We don’t even know much more about what goes into these determinations because the government has claimed their secret sauce is a ‘state secret’.
Whatever regulations of guns are put in place, they should be implemented on the basis of understanding what in the world we’re talking about. The No Fly List is about declaring people guilty without proving them so, or affording a mechanism to confront the evidence against them and clear their name.
Remember that the San Bernadino shooters weren’t on the No Fly List (here’s a photo of them entering the US last year, hat tip Greg R.).
After events like this we want the government to do something. And (whether you believe for good reason or not) gun rights are currently less popular than some other rights. Other rights fall out of favor at other times. Same sex marriage was unpopular until very recently. Speech has been unpopular at times. Using unreviewable, secret and often arbitrary pre-crime profiling as a basis for denying any kind of right is a huge departure for our system of justice and should be well understood before it’s undertaken.
Being on the no fly or terror watch list shouldn’t be used to forbid working in a mosque. It shouldn’t be used to limit one’s right to a jury trial. Finding oneself on the No Fly List ought not let the government quarter soldiers in your home. Or to take away any other right.