Secrecy, the No-Fly List, and Concealed Weapons

Even if you don't care about personal liberties, these systems are programmed to malfunction.

George OrwellOrwell / Wikimedia CommonsIt's a classic Orwellian nightmare: The government decides to deny you a right it extends to other people, but it won't tell you why and it won't tell you what you can do about it. You're stuck in purgatory, effectively convicted without being tried—or even being told the charge against you.

This system is in use by both the federal government and the state of Illinois. But George Orwell is deadand the Constitution is not. So citizens put on double-secret probation by law enforcement agencies may turn to the courts to escape, and they may win.

They have already registered a victory against the "no-fly list" compiled by the FBI and enforced by the Transportation Security Administration. Last month, a federal court in Oregon ruled the system unconstitutional because it denies those on the list the right to travel without due process of law. If the government wants to keep you off a plane, the court concluded, it has to tell you why and let you respond.

That battle is not over, though, and a parallel one is just beginning in Illinois. When a federal appeals court said that the state had to create a system to allow the carrying of concealed weapons, the state Legislature did so, wailing and weeping all the while. But unlike states that provide licenses to anyone who meets certain conditions, Illinois added an extra one.

It authorizes local law enforcement officials to object to anyone they regard as "a danger to himself or herself, or a threat to public safety." If a state review board agrees, it will deny the application.

Those rejected, however, are not informed of the specific objections. They are not allowed to contest the claims. They are not told why they are deemed unfit. They are guilty, of what they know not, subject to a penalty of indefinite duration.

This policy likewise may fall in court. It's the target of lawsuits filed by the National Rifle Association on behalf of citizens who were refused concealed-carry licenses. They got the required training, paid the mandatory fee and hadn't been convicted of any disqualifying offenses, but none of that mattered.

Even if you don't care about personal liberties, these systems are programmed to malfunction. Courts try to reach sound verdicts through an adversarial process where the evidence is known to all and subject to actual dispute. A process that allows the accuser to speak, while the accused has to wear a blindfold and earplugs, has slightly less chance of revealing the truth.

But those personal liberties shouldn't be consigned to the category of First World Problems. As Judge Anna J. Brown explained, being barred from getting on a plane is not a minor inconvenience. "Placement on the No-Fly List renders most international travel very difficult or impossible," she wrote, noting that "for many international travel is a necessary aspect of liberties sacred to members of a free society."

The right to keep and bear arms may be even more important. The Second Amendment, according to the Supreme Court, recognizes the right to use a firearm for self-protection, and that right occasionally comes in handy beyond your front door.

In striking down Illinois' concealed-carry ban, Judge Richard Posner wrote: "A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress."

Some women and men shouldn't be trusted with a loaded gun in public, and some shouldn't be allowed to board a plane. But the only reliable way to separate the worthy from the unworthy is in a public forum where people can learn why they're excluded and offer rebuttals.

Providing this opportunity is crucial for individuals who otherwise might suffer unwarranted deprivation of rights that are available to others. But it's also important for the rest of us, if only to reveal whether policies adopted by our elected officials are being carried out with even a minimum level of fairness and competence.

The alternative is to expect people given power to use it wisely in the absence of public accountability. It assumes what Orwell's Ministry of Truth proclaimed: Ignorance is strength.

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  • Rich||

    It authorizes local law enforcement officials to object to anyone they regard as "a danger to himself or herself"

    Nice try, Illinois, but this is obviously unconstitutional due to gender limitation!

  • Rich||

    If the government wants to keep you off a plane, the court concluded, it has to tell you why and let you respond.

    "Thank you for your response, which will be carefully considered, according to established policies and procedures, in the order in which it was received."

  • Aresen||

    The alternative is to expect people given power to use it wisely in the absence of public accountability

    "We just need the right people in charge!"

    (Excuse me while I puke.)

  • Cdr Lytton||

    But the only reliable way to separate the worthy from the unworthy is in a public forum where people can learn why they're excluded and offer rebuttals.

    Uhm, no. Conviction before trial and guilty until proven innocent is not the way it's supposed to work, Chapman. It's up to the government to prove its case and do so before the rights are restricted.

  • Jordan||

    I hope that's what he was getting at, but it is Chapman...

  • Fatwa Arbuckle||

    I didn't know that my birth state of Illinois' constitution also contained a "Fuck You, That's Why" clause.

    The more you know...

    Sure glad to be living in GA. (Now if they'd only legalize weed here.)

  • LarryA||

    It authorizes local law enforcement officials to object to anyone they regard as "a danger to himself or herself, or a threat to public safety." If a state review board agrees, it will deny the application.

    At least Illinois is opt-out. There are eight "discretionary" license states where the sheriff or another official must decide you "need" a CHL before you get one. But that may change as well. California's system was struck down by the 9th Circuit, which also affects Hawaii (where government has decided no one needs to carry) and Guam (which recently passed shall-issue.)

    OTOH the 3rd Circuit upheld New Jersey's restrictive provision, and SCOTUS refused the appeal. So we'll see.

    Had a couple in a Texas CHL class several years ago who had both qualified for licenses in the discretionary state they had moved from. The county board issued the husband one, but denied the wife's on the bases she didn't "need" it because he could protect her. (That state is now shall-issue.)

  • Daily Beatings||

    Minnesota has the same system with concealed carrier, but the difference being there's a mechanism for appealing the decision. Illinois just keeps playing stupid games over and over.

    The NRA is going to get there legal fees paid for courtesy of the taxpayers. So far it's 1.6 million total for the last two cases. Illinois, the gift that keeps on giving.

  • California Right To Carry||

    The 7th Circuit Court of Appeals did not say that Illinois had to create a system to allow the carrying of concealed weapons. In fact it said that Illinois could prohibit the carrying of concealed weapons because the US Supreme Court said that Open Carry is the right guaranteed by the Constitution and furthermore said that concealed carry can be prohibited.

    Judge Posner, who wrote the decision, did not require Illinois to enact any legislation. He gave Illinois seven months to write new legislation if it wished before his injunction went into effect. If Illinois had passed the new legislation then it would have been legal to carry a firearm openly or concealed without a permit.

    The NRA, which had the votes to block any new legislation, opposes open carry and believes that one should only be allowed to carry a handgun concealed with a government issued permission slip. A permission slip which requires training of course because NRA certified instructors are a core constituent of the NRA.

    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

  • California Right To Carry||

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

    "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court (2010) at 3050.

    "[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282

  • BDub||

    "But the only reliable way to separate the worthy from the unworthy is in a public forum where people can learn why they're excluded and offer rebuttals."

    This doesn't go far enough. Due process should be served before you are ever put on the list. Where is the presumption of innocence? We do not pass sentence on the accused and then conduct a trial to see if the sentence is justly deserved.

  • Intn'l House of Badass||

    The fact that someone is willing to live in a hell-hole like Illinois is all the grounds anyone needs to deny them a conceal-carry permit. Obviously, such persons are a danger to themselves.

  • Eric T||

    How many are aware that the U.S., in full cooperation with Interpol, now cynically provides all criminal background information (at least on those convicted of "sex offenses" [but who knows?]) about its citizens to virtually all other countries so that they will be effectively BARRED from all international travel? This is REGARDLESS of whether or not the International Megan's Law (passed by House, now in Senate) is enacted. It has been the practice for at least the past year. The U.S. is claiming, disingenuously, that IT is not preventing those who have a criminal record, regardless of how many years may have since elapsed, from travelling but merely "passing on" the information. The result, obviously, is that Americans are being refused entry to foreign countries at historically unprecedented levels. See this for more information: http://www.tinyurl.com/luzsdnd

  • Michael Price||

    "It's a classic Orwellian nightmare: The government decides to deny you a right it extends to other people, but it won't tell you why and it won't tell you what you can do about it. You're stuck in purgatory, effectively convicted without being tried—or even being told the charge against you."
    Sounds more Kafka.

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