Civil Liberties

Secrecy, the No-Fly List, and Concealed Weapons

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


George Orwell
Orwell / Wikimedia Commons

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.

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.