A bipartisan group of senators is again attempting to restrict gun rights on the basis of inclusion in federal watchlists used to keep people suspected of terror ties from boarding planes.
"No fly, no buy" is back. In response to the school shooting in Parkland, Florida, Sens. Susan Collins (R-Maine) and Heidi Heitkamp (D-N.D.) announced a bipartisan push to resurrect the Terrorist Firearms Prevention Act to keep people from legally buying guns on the basis of being on a pair of federal watchlists.
"Our bipartisan bill is based on one simple principle: if you are considered to be too dangerous to fly on an airplane, you should not be able to buy a firearm," Collins justified in a statement earlier in the week.
Several other legislative sponsors, including Sen. Jeff Flake (R-Ariz.) included their own statements. Flake added, "Terrorists shouldn't have access to guns, and this legislation has the teeth to make sure they don't."
The statements by other senators are all in a similar vein: The government has already declared these people are too dangerous to be on planes, so they shouldn't have guns.
The problem with these comments is that we are expected to accept that the inclusion on a secret government list is an appropriate way to declare somebody to be a "terrorist" absent any actual conviction for criminal activity. These are people on government watchlists for suspicion of terrorist ties. But that suspicion is not always based on accurate assessments.
The federal government has been sued over these secretive no-fly lists. The suits have argued that people placed on these lists are deprived of due process. People who are on watchlists have trouble getting off of them even after demonstrating they have no ties to terrorism. In one notable case, a person ended up on the watchlist entirely because an official literally checked the wrong box, and it took a lawsuit to uncover.
So the problems that existed when legislators pitched this back in 2016 remain. This bill uses lists that often deprive people of due process and deny them their right to travel freely in order to further deprive people of due process and further deny them an additional right to self defense. And there's no evidence that this bill would actually stop any mass shootings.
The slightly good news is that there's an expedited appeal process in the bill that would allow a person denied permission to buy a gun under this bill to go to the courts to have the refusal overruled. But it also allows the attorney general to keep information secret for classified or national security purposes, and it gives federal authorities permission to use information gathered secretly via the Foreign Intelligence Surveillance Act (FISA) as justification. That matters because Congress and the president recently just renewed and expanded Section 702 of the FISA Amendments that authorizes the government to access data collected secretly domestically about Americans in connection with certain crimes.
Collins says that the two lists include fewer than 3,000 Americans. Respecting citizens' due process shouldn't be dependent on some arbitrary threshold of the number of people affected, but no doubt it makes it easier to sell to the "Do Something" crowd while at the same time reducing the number of people who have a personal stake in the outcome who would resist.
Yesterday, President Donald Trump said he thinks due process should be secondary to the goal of seizing guns from whoever the government or law enforcement officials deem bad. During the 2016 campaign he actually endorsed "Don't fly/don't buy" regulations, but later walked that position back. A spokesperson from the American Civil Liberties Union tells Reason the organization is still evaluating this current proposal, but in 2016 opposed an amendment by Collins to use the no fly list as a mechanism for denying gun purchases. They noted back then:
The government contends that it can place on the No Fly List American citizens who have never been charged let alone convicted of a crime, on the basis of a prediction that they nevertheless pose a threat (which is undefined) of future conduct that the government concedes "may or may not occur." The overly broad criteria result in a high risk of error, and it is imperative that the watchlisting system include due process safeguards—which it does not. In the context of the No Fly List, for example, the government refuses to provide even Americans who know they are on the list with the full reasons for the placement, the basis for those reasons, and a hearing before a neutral decision-maker. These are fundamentals of constitutionally-required due process.
Although these lists may have only 3,000 American citizens on them now, if the lists become used as a mechanism to deny people guns, that also serves as an incentive to attempt to add people to the list to keep them from purchasing guns on the basis of the government thinking they might be a threat.