Gun Control

'No Fly, No Buy' Proposal Takes Away Gun Rights First, Asks Questions Later (Maybe)

Susan Collins' Terrorist Firearms Prevention Act still flouts due process, but for fewer people.

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Office of Susan Collins

Yesterday Sen. Susan Collins (R-Maine) supposedly unveiled her compromise bill aimed at stopping suspected terrorists from buying guns. I say "supposedly" because as I write the text of her Terrorist Firearms Prevention Act is not available on her website yet, and the summary she is offering adds little to what we knew before her press conference. In particular, it does not say what the government must do to permanently deprive someone of his Second Amendment rights, which is the central issue raised by legislation of this kind.

Instead of covering anyone the attorney general deems "a threat to public safety" based on a "reasonable suspicion" of involvement in terrorism, as an amendment introduced by Sen. Dianne Feinstein (D-Calif.) and rejected by the Senate on Monday did, Collins' bill focuses on two subsets of the FBI's Terrorism Screening Database (TSDB, a.k.a. the Terrorist Watchlist): the "no fly" list, which includes people barred from air travel within the United States, and the "selectee" list, which includes people who must undergo additional screening before flying. Collins' office says the two smaller lists cover about 109,000 people, including 2,700 or so Americans, compared to 1 million or so people in the TSDB. "Essentially," Collins said yesterday, "we believe that if you are too dangerous to fly on an airplane, you are too dangerous to buy a gun." There are a couple of obvious problems with that reasoning: People on the no-fly list are too dangerous to fly on an airplane according to the FBI, and people on the selectee list are not too dangerous to fly on an airplane even according to the FBI.

What happens when the FBI wrongly suspects someone of ties to terrorism? "Individuals on the narrower No Fly and Selectee lists would not be allowed to purchase guns," says Collins' summary of her bill, "but Americans and green card holders would have due process rights to appeal in the Court of Appeals following a proscribed procedure." I think she means "a prescribed procedure," which would be the procedure laid out in her bill, as opposed to "a proscribed procedure," which would be a procedure forbidden by her bill. In any case, she offers no details about what this mandated or prohibited procedure would entail.

Feinstein's bill also ostensibly gave people stripped of their constitutional right to keep and bear arms an opportunity to challenge that deprivation, but apparently only if they could show that it resulted from "erroneous system information," as opposed to unsubstantiated suspicions. A bill proposed by Sen. John Cornyn (R-Texas), also defeated on Monday, would have allowed the Justice Department to delay a gun purchase by "a known or suspected terrorist" for up to three days, during which time it would have to persuade a judge that there was probable cause to believe the would-be buyer was in fact involved in terrorism (the same standard that must be met for a criminal charge). Collins' summary is silent on the crucial question of what standard would apply when a suspected terrorist argues that government's suspicions are wrong.

Collins does say the attorney general "would have the burden of proof." But burdens can be heavy or light, and it makes a big difference whether the standard is proof beyond a reasonable doubt, clear and convincing evidence, a preponderance of the evidence, probable cause, reasonable suspicion, or something even weaker. An earlier version of Feinstein's bill, for instance, required the government to show by a preponderance of the evidence that the attorney general's suspicion was reasonable, which essentially means taking whatever probability qualifies as reasonable suspicion and cutting it in half. 

There is also the issue of who has to bring the matter to court, because without a case the burden of proof is irrelevant. Unlike Cornyn's bill, which would have allowed a gun sale to go through after a three-day delay unless the government met its burden of proof, Collins' bill makes the deprivation of Second Amendment rights permanent unless the would-be buyer appeals and prevails. Feinstein's bill took the same approach.

Even Cornyn's proposal (which has the NRA's support) is problematic, since it allows a prior restraint on someone's constitutional rights (for up to three days) before any evidence at all has been produced. Once the three-day period ends, the restraint continues based on probable cause, which is similar to the federal law that bans gun purchases by people facing felony charges. But with other felonies, that deprivation continues only if the suspect is convicted. Under Cornyn's bill, it sounds like a one-time probable cause showing is enough to indefinitely take away someone's Second Amendment rights.

The American Civil Liberties Union opposed Cornyn's bill as well as Feinstein's, since both relied on a secretive and mistake-riddled system for identifying suspected terrorists. "Our nation's watchlisting system is error-prone and unreliable because it uses vague and overbroad criteria and secret evidence to place individuals on blacklists without a meaningful process to correct government error and clear their names," the ACLU said. "The government contends that it can place Americans on the No Fly List who have never been charged let alone convicted of a crime, on the basis of prediction that they nevertheless pose a threat (which is undefined) of conduct that the government concedes 'may or may not occur.' Criteria like these guarantee a high risk of error, and it is imperative that the watchlisting system include due process safeguards—which it does not."

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  1. Just a shot in the dark here, but maybe the guy who was been under FBI investigation several times should raise a red flag when he tries to buy a gun. Just throwing that one out there.

    1. Obviously we need to maintain a list of people who were once investigated by the FBI but were considered too innocent to prosecute, and deny anyone on that list a constitutional right because feelz.

      1. Sure glad we didn’t maintain that list, because 49 killed and 50 more wounded is oh so much better.

        Life is full of trade offs. Get over it.

        1. Except there was a list. Mateen wasn’t on it.

        2. It’s a shame no-one reported Mateen’s suspicious behavior so the FBI could investigate it, right?

        3. Constitutional RIGHTS are not part of any “trade-off”. if you don’t like that,move to another country.

    2. 1. A red flag – maybe. Still shouldn’t, on its own, slow down the purchase process on iota.

      2. Seriously? The *FBI*? The organization that tried to blackmail MLK into killing himself? The organization that was headed by Hoover? The organization with a barely functional crime ‘lab’ that works harder to bolster cases than to provide actual evidence?

      What is it about the FBI that makes you think they have any credibility when it comes to who may or may not be a danger?

      1. The sad fact is that they’re the government agency that handles background checks on guns. OK, fair enough it is too much to expect basic competency from them, but a man can dream.

        1. So, people who you admit are “sad” and incompetent get to take away our rights?

          Seriously? Do you listen to yourself?

          1. I recognize that my opinions amount to a wet fart. You are always welcome to lead the charge to reform the FBI.

            1. If you have a problem with my arguments, please point out the hill I should die on.

              1. It’s more of a grassy knoll.

              2. For the good of the world any hill would do.

      2. ” A red flag – maybe. Still shouldn’t, on its own, slow down the purchase process on iota.”

        ^^^ this. i don’t think anyone would complain, if the FBI got an alert (from itself….) when someone on “the list” buys a gun.

        1. some folks just don’t see how CREEPY and “Big Brother-ish” that “being on a list,and losing your right to…” is.
          I see what Comrade Obama and Lois Lerner got away with with their IRS funny business,and that was just for forming a non-profit political organization. What they would do with the ability (power) to prevent citizens from buying firearms scares the crap out of me,and it should every rational person.
          But that’s the problem,too many people are just not rational.

    3. should raise a red flag

      … and then what?

      You’re might be making a throwing motion, but your hand is empty.

      1. +1 tuck rule

        1. Stop triggering the Raiders fans. They already have to deal with a terrible PD.

  2. It should be noted that the ACLU opposed these laws because they’re arbitrary and discriminatory, not because they oppose gun control. The statement linked flat out says they’d be very happy with broad gun control laws that applied to everyone and they shouldn’t be held up as some kind of paragon of virtue here.

    1. Nobody is holding them up as that, and Reason readers likely know that the ACLU does not believe in the Second Amendment.

      What is remarkable is that the ACLU is being more principled about due process concerning a right that they do not even believe exists than the Senate, Obama, various pundits, American public, and even to some degree the NRA are over a right they claim to support.

  3. Tangentially interesting. Look at all the unemployed lawyers. It’s a thing.

    Which makes no sense on it’s face. A glut of lawyers in the market ought to be good news. Unless Americans have suddenly stopped suing the shit out of everything that moves, there doesn’t appear to be any obstacles to full employment for such a highly marketable skill.

    So they aren’t making $250 an hour plus expenses. Make $75 an hour instead. Did we make that illegal too?

    1. Most of the services that lawyers could provide are now automated. You can go to legalzoom and get a basic will for free.

      Talking to some of my lawyer friends and family, you can still make a decent living if you’re willing to specialize. Patent lawyers make money hand over fist. But you need a STEM degree, and there aren’t that many people studying engineering and then going for a law degree.

      1. It’s also not that easy to find work, but once you do…

    2. The same thing is happening with Ph.D.s. Young professionals flock to graduate programs when they can’t get a job in the hopes of riding out an economic downturn, and our economic downturn has lasted for nearly a decade now in non-STEM fields. Good luck to anyone who wants to be an English lit professor for the next generation; it was a buyer’s market before the bottom fell out in 2008, and it’s only going to get worse when the asset bubble collapses.

    3. So this. It’s like the “waahhh, my partner and I bot graduated fro Penn and walked into a big Philly firm for 120k to start and we can’t afford a luxury penthouse, two Benzes AND our student loans” story I saw in some business paper around the time I was graduating law school and was just glad I could make my own job and take $50/hr ct. appointments.

      A lot of those folks come from very wealthy backgrounds, though. I think they just expect the supply of lawyers to never impact them, like it never impacted the 4 generations of lawyers preceding them.

      1. I keep hearing secondhand about stories where people claim to be unable to live on rates of compensation that would be the envy of much of the country, but I’ve never seen such a screed firsthand.

    4. Last I heard more than half of the people who get law degrees work a couple of years and then change professions.

      1. Probably when they realize just how much work it really is.

  4. Wouldn’t it be nice if there was some sort of checksnbalances thing in place where the President could, i dunno, reject, blatantly unconstitutional legislation. The would probably require him to be some sort of Constitutional Scholar or some such.

    I wonder if anyone anywhere has ever tried such a system of governance.

    1. That would work were the president chosen on merit instead of by popularity contest or out of a fear of being called racist.

    2. Our current constitutional scholar in the White House thinks it’s “cowardly” to not deprive people of their constitutional rights based on mere suspicion and accusation.

    3. Thankfully we never have to worry about such a problem in the era of the Living Constitution where everything is Constitutional because the document doesn’t actually mean anything.

      1. Every Constitutional right is subject to reasonable regulation. It says so right there in Hillary Clinton’s copy of the Constitution.

  5. Going for a last bureau before your eventual retirement, huh Susan? You suck, bitch.

  6. The Selectee list? WTF? I think I’m on that list because I get sent to secondary screening about half the times I fly.
    I also have a current Top Secret clearance, which I have held for more than half of my life.

    1. Clearly because of your clearance you’re trying to smuggle secrets.

      1. UCS- and the only way to stop me is to take me in a little room for additional questioning, searches of my bags, and swabbing of my hands. They said that was to look for traces of explosive, but I guess they can tell if I’ve handled a compromising thumb drive?

        1. Well naturally, the kabuki theatre will scare the wrongthink out of you and you won’t go through with it.

          It’s logic! Magic!

    2. You would know you are on the list because you would find four big black S’s on your boarding pass (which you cannot print out ahead of time–you have to get it at the check-in desk). And you would also have to be rescreened AT THE GATE. I know this because I was on that list about ten years ago, for six months.

      My guess is it was because I had to cut a business trip short and made a quick change to a flight because of a family emergency. I wrote a formal letter to the TSA and they wrote back a few months later and denied I was on any list. But several different airlines over a six month period seemed to think I was.

      You can only imagine what I think of this BS.

      1. We can only speculate as to why.

        For all you know, the TSA put you on the list because your metadata was attached to someone’s phone they were watching. It may have been a business associate’s business associate, or maybe the guy that owns the place where you get your dry cleaning done.

        Someday, maybe we’ll get to find this stuff out–like we found out what was in the FBI file on John Lennon.

        I understand the FBI didn’t think much of his wife’s singing.

        1. the way cellphone numbers are swapped around these days means lots of people can be on those lists for NO valid reason. I bought my first smartphone over a year ago,and I still get calls form bill collectors looking for the guy who had that number before me. What if he’s on the no-fly list? Now that I have that phone number,it means I am too.

  7. I think she means “a prescribed procedure” … as opposed to “a proscribed procedure”

    Ahem. Who is the *United States Senator* here, Jacob?

    1. There are even fewer requirements to become a senator than a journalist (I mean, Bernie made it after all, and that bum can’t hold down a normal job) and the requirements to become a journalist are pretty darn loose.

      1. There are no requirements to become a journalist at all. Today being able to write a coherent sentence isn’t even a requirement.

        1. I believe you’ve made my point.

    2. Yeah, she’s not a sixth grader!

    3. Somebody needs to re-read their Catch 22 if they think the prescribed procedure can’t be a proscribed procedure.

  8. “Our nation’s watchlisting system is error-prone and unreliable because it uses vague and overbroad criteria and secret evidence to place individuals on blacklists without a meaningful process to correct government error and clear their names,” the ACLU said. “The government contends that it can place Americans on the No Fly List who have never been charged let alone convicted of a crime, on the basis of prediction that they nevertheless pose a threat (which is undefined) of conduct that the government concedes ‘may or may not occur.’

    So, thoughtcrimes are Collin’s basis for depriving people of rights? Fuck you, Collins.

    Props to the ACLU for finally being on the right side of the Second A.

    1. They’re on the side of the right to fly on airplanes – if they could separate guns and planes they’d do so and abandon the Second Amendment.

    2. They aren’t. They said the list shouldn’t be used as the basis for depriving people of the right to buy a gun because it was arbitrary and discriminatory. They were right about that.

      The statement that was linked to also makes clear that they’d be happy with an overarching gun control scheme that applied equally to everyone. The author should have pointed this out.

  9. “Essentially,” Collins said yesterday, “we believe that if you are too dangerous to fly on an airplane, you are too dangerous to buy a gun.”

    “We believe that if you are too dangerous to fly on an airplane, you are too dangerous to ride on a bus.”

    “We believe that if you are too dangerous to fly on an airplane, you are too dangerous to vote.”

    “We believe that if you are too dangerous to fly on an airplane, you are too dangerous to purchase cough syrup.”

    ….

    1. Ha ha, don’t be paranoid, they won’t tease out the logical implications of their position until we end up with comprehensive apartheid-style banning orders for people the government doesn’t like, why did you even bring it up?

      1. Nah, they’ll never take it that far.

        After being turned down, say, buying a newspaper the subject might begin to suspect he’s on the watch list.

        1. Buying a newspaper is in of itself a suspect activity.

          1. Yeah, I realized that after I hit “submit”. Poor example.

            1. You’re running an underground Finch farm and need cage liners!

              1. “Yeah ….. *That’s* the ticket!”

    2. Or drive a car, or live near a school, or etc. You make a good point.

      1. “Oh, it’s *hell* being on that damn list, let me tell you!”

        1. It’s simpler to demonstrate.

          *Adds the Grinch to the list, flags Rich for heightened scrutiny*

          1. I see you’ve grasped the concept of “See something, say something”.

        2. I wish this was a joke. I was on that list ten years ago–see above. THAT’S NOT FUNNY!!!! 🙂

      2. continue breathing, etc

  10. What’s with this nitpicking about which arbitrary list you would have to be on before they act to disarm you?

    If Collins says it can only be one of the airplane-related lists, but that membership on this list is a basis for disarming you, then the FBI will simply add the people it wants to disarm to its airplane-related lists.

    The only reason is matters is because of the demagogic “no fly no buy” talking point – I doubt it would have any practical significance.

    1. Exactly. Cornyn’s bill that the Democrats voted against had a 72 hour time limit for the FBI to do something or else the gun sale goes through.

      The Collins bill just gives the FBI the power arbitrarily strip anyone of a Constitutional right.

      1. Since Cornyn’s bill proposed to take away a suspect’s right to a jury trial, and to abolish the reasonable doubt standard and replace it with a probable cause standard for lifetime disarmament, then I’m not willing to give him a lot of credit.

      2. Even Cornyn’s bill seems sketchy. Is 72 hours a firm limit on the delay, or can the FBI ask for extensions while it ‘compiles the information it needs’ or whatever, and allow those extensions to just last indefinitely?

        1. I thought they had to convince a Judge that some sort of charges would be coming.

          1. The version I read (from last year) said a probable cause finding would in itself be enough to disarm the defendant.

            1. no need for follow-up charges.

    2. Nothing is stopping the FBI from letting local law enforcement know that some dude on their list just bought an MPX.

      1. except competence

    3. How arbitrary must the additional screening list be?

      How arbitrary must the criteria to get on that list be!

  11. Never let a crisis go to waste, but for some reason the expiration date on gun control comes and goes really fast.

    They don’t want to be seen using dead bodies as a soap box, but then it goes from “too soon” to “too late” in about five minutes.

    One way to interpret that is the American people don’t want to pay the price for what you’re selling, but then what’s the point of being a politician if you can’t shove something down the American people’s throat every once in a while?

    1. See Obama care

  12. I have been told by a reliable source that one of the many abuses of the no fly list is to add people the FBI wants to keep tabs on. The victim tries to fly, the FBI is contacted to determine status as required, the FBI makes a note and says the victim is ok to fly (this time). The hassle and delay the victim has to go through every time they fly is just a side benefit.

  13. “Collins’ bill focuses on two subsets of the FBI’s Terrorism Screening Database (TSDB, a.k.a. the Terrorist Watchlist): the “no fly” list, which includes people barred from air travel within the United States, and the “selectee” list, which includes people who must undergo additional screening before flying.”

    The “selectee list” is especially troubling.

    If I start going to a mosque because my fiance is a Muslim, and I suddenly star getting pulled out of line for additional screening three times or more on the way through airport security, does that mean I’m on the selectee list?

    If Preet Bahara decides he doesn’t like my comments on Hit & Run, can he put me on the selectee list?

    How does one get on the selectee list? How does one find out if he or she is on the list? How does one challenge being on the list?

    If the answer to any or all of these questions is “screw you, that’s why”, then being on that list is an insufficient justification for denying someone their constitutional rights.

    1. See my comment above for the answer to your question–there seems to be no basis in it at all. At least I never found out why I was on it. Just an ordinary university professor at a mid-level university. I did post on H&R back then, and even donated to the Reason Foundation. But who knows–our gubmint works in mysterious ways.

      1. I was thinking about marrying a Muslim girl–highly educated, smart as a whip, beautiful like a mountain meadow in bloom.

        Started going to a mosque to learn about the religion and bam! Suddenly I need to be puled out of line three or four times on the way to the plane and take my socks off–again?!

        It stopped happening a while back. I guess they realized I’m a threat to marry a hot Persian chick more than I’ll ever be a threat to anyone else.

  14. Looks like Congress is going to have to let the pressure off by passing some measure of this kind, preferably whichever option is least intrusive. Then if some time later it’s struck down, you know, not their fault.

    The pressure does seem substantial. Like for instance a few days ago I was petitioning to get candidates on the ballot in the Conservative Party, getting signatures from the enrollees in that party. I go to one guy who’s got pro-gun stickers on his apt. door, tells me he owns several guns himself, but thinks people don’t need to be able to own magazines that hold 30 rounds. Seems even those most interested want to throw under the bus people who want guns slightly different from what they want. Maybe “throw under the bus” isn’t the right metaphor, because it’s a matter of being afraid of incidents like the Orlando massacre, thinking they can somehow pick out as targets of restrictions just particular bad guys like that.

  15. The so-called “Terrorist No Fly List” needs to be addressed before we start building laws on it.

    Republicans have a good case in that there exists no transparency, no due process, and no accountability for people on the list.

    If you ask me, there should be no “No Fly List” at all.

    We shouldn’t just throw out the due process of law for this. Law enforcement needs to get a warrant for whom they want to investigate and act accordingly.

  16. The Collins bill, in the long term, will not even have the supposed quantitative merit of denying due process to fewer people. Can there be any doubt that the two “narrower” lists would see a remarkable absorption of names from the “wider” lists in the coming years? There is utterly nothing preventing the Executive Branch from doing so.

    Lindsay Graham’s assurance that “there are no Bubbas on these lists” (in addition to having more than a whiff of the kind of communitarian dog-whistling that Graham, however otherwise awful he is, has stood admirably against) is demonstrably false, even as things stand now. One can only wonder how false it would be six months after implementation. It is remarkable that even a source like Reason has not been holding him fully accountable for this.

  17. “but Americans and green card holders would have due process rights to appeal in the Court of Appeals following a proscribed procedure.” I think she means “a prescribed procedure,” which would be the procedure laid out in her bill, as opposed to “a proscribed procedure,” which would be a procedure forbidden by her bill.

    You never know, maybe she meant exactly what she said. “You can appeal, but the process for doing so is forbidden. Because FYTW.”

  18. Collins’ office says the two smaller lists cover about 109,000 people, including 2,700 or so Americans, compared to 1 million or so people in the TSDB.

    0.000849056% of US population on this list. Not great, but people getting massacred aint great either.

    1. Yep. And it can grow to whatever percent just as soon as the Executive Branch sees fit. This is why we do not willfully deny anyone his rights, on this matter and in general. This is why we draw bright lines.

    2. Not great, but people getting massacred aint great either.

      It would be helpful to your argument if the one thing had something to do with the other.

  19. They are also ignoring the fact that giving the executive branch the ability to direct who gets placed on this list. Just using the Dems talking points from yesterday that “The GOP wants to sell guns to ISIS” its not hard to logically conclude that anyone who wants to sell guns to ISIS is supporting terrorism. People who support terrorism should not be able to fly and thus not be allowed to purchase weapons. It is a bit of a slippery slope but as we have seen with the IRS I do no think that its a stretch to conclude this bill would be used to punish political enemy’s. Though that might be the very thing they are all salivating over the chance to do.

  20. Exactly how many mass shooters have been on the “no fly” list Mr. Shitstain senator from Connecticut and assorted dwarves……(crickets)

    1. I believe the number is ZERO.

      The police state that would need to be established to scan for weapons, video monitoring, etc. would turn this place into something that would make Nazi Germany look nice.

      Even if you established a NAZI army that would go door-to-door, take guns, and kill whomever didn’t cooperate, once this is complete, people will still be able to manufacture guns.

      Taking guns away is an unreasonable approach.
      The “Don’t use guns here” sign doesn’t seem to work either.

      But on the other hand, machine guns, automatic weapons, and body armor seems to be difficult to get thanks to gun control laws banning these things. Can someone manufacture a machine gun with a 3d printer or old-fashion hardware, of course.

      And the loop goes on

  21. It would seem that if a person is dangerous enough to deprive them of their constitutional rights then they shouldn’t be out walking the streets, our safety shouldn’t be compromised like this if they are REALLY such a threat.

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