In response to the San Bernardino shooting, President Obama urged Congress to restrict the purchase of assault weapons and called for a system where “no one on a no-fly list is able to buy a gun.” The Sandy Hook shooting demonstrated that substantial gun violence will not create enough political inertia to meaningfully limit assault weapons and high-capacity magazines. The administration seems to be taking a new angle in the wake of a terrorist incident, working to limit the gun rights of any terrorist suspect that is not allowed to fly in or out of the United States.
This is described as common sense by President Obama and Hillary Clinton:
*Bernie Sanders also supports this measure, as he continued to ramp up his social media campaign with this enthusiastic tweet:
The no fly list was created after the September 11 attacks in 2001 and is operated by the Terrorist Screening Center. (The process used is private and very complicated, but this ACLU graphic does a great job breaking it down.)The Intercept reported the list contained 47,000 people in 2013, and a House committee testimony in 2014 put the number at 64,000. This marked a ten-fold increase during the Obama administration, surpassing George W. Bush’s previous numbers.
The no fly narrows down suspects from the federal government’s Terrorist Screening Database, a watchlist of 680,000 “known or suspected terrorists” shared with law enforcement agencies and foreign governments. The largest category of 280,000 people has “no recognized terrorist group affiliation.”
Don’t get too caught up in these numbers – it is estimated that only about 6,400 U.S. citizens were on the no fly list in 2014. This was reported in August, 2014, and the government supposedly adds 900 records each day. The CIA actually uses a program called Hydra to covertly access foreign databases to add to the watchlist. It sounds like something straight out of the Marvel Universe.
The American Civil Liberties Union actually appears to be at odds with the Democratic Party, running a headline last week stating “Until the No Fly List Is Fixed, It Shouldn’t Be Used to Restrict People’s Freedoms.” The ACLU is currently involved in a lawsuit (Latif, et al. v. Holder, et al.) over the constitutionality of the no fly list. While the federal government recently agreed to tell citizens whether or not they were even on the list, they still did not give definitive reasons and the matter is yet to be settled.
The strength of the due process arguments is only enhanced when talking about the second amendment. Flying is a not a constitutional right while owning a gun is explicitly protected in the Bill of Rights. While the ACLU challenge argues that the right to travel is a constitutionally protected right, little argument remains about the right to bear arms. The privacy and fluidity of the list create a scary potential where any citizen deemed a terrorist threat could no longer purchase guns even though they had not committed any crimes.
While constitutional rights may be taken away, that can only happen with due process. Categorical bans, universal and transparent background checks, and mandated waiting periods have withstood legal challenges. Noah Feldman, a law professor at Harvard explains how broader gun control measures can avoid these problems:
The right to own a gun isn’t absolute. The Brady background check performed by the federal government denies ownership to nine categories of people. But all or almost all of these involve the prior satisfaction of due process.
Now we have an interesting dynamic at hand. Democrats are proposing questionably legal counter-terror initiatives and are being challenged by the ACLU and Republicans. Obama heavily criticized the Bush administration for its expansion of governmental secrecy and use of the state secrets privilege while running for office in 2008. Now, the administration has asserted that same privilege as a legal defense of the no fly list. Even if prospects brightened in Congress, the bill (as well as others like it in Connecticut and New York) would certainly face a strong legal challenge in court.
Is the no fly list even an effective tool? To start, no one in the intelligence community has suggested that this would have prevented the San Bernardino shooting, done by a married couple that were not clearly identified as a public risk (although many point to signs that they should have been). The list is based entirely on speculation and predictive assessments, not hard evidence. While this novel approach may have been seen as a more incremental step to Democrats, there is no reason to believe this will stop any of the mass shootings or gun violence in the United States.
Consider two things. First, the FBI’s history of terrorist entrapment, using predictive methods to find innocent (often poor and even mentally ill) Muslim suspects and offer payment to implement their own terrorist plots. The no fly list has already been used by the FBI to coerce Muslim informants, and there should be a healthy skepticism surrounding entirely covert counter-terror activities. Second, the United States’ discriminatory history of gun control, which has worked in the past century to limit the self-defense of African-Americans, immigrants, and poor people living in public housing. This is no different – the no fly list as a separate gun control initiative is only gaining traction because of how we arbitrarily define terrorism and distinguish the San Bernardino attack from other hateful and ideological attacks because of its association with Islam.
The United States has a list of people that are not dangerous enough to arrest but are effectively being treated like terrorists. They are already not able to board commercial airlines, and that same growing secret list is now being proposed to restrict their ability to purchase guns. Conservative ideals on gun rights are often too absolute, but many Republicans are right to criticize the dubious legal status of these initiatives. Stricter gun control can and should be accomplished with due process, and trying to create support for universal background checks, closing gun show loopholes, and banning assault weapons should take priority.
Robert Galerstein 