The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At last night's presidential debate Donald Trump and Hillary Clinton made all kinds of attacks on each other. But on one notable issue, they were in complete agreement: they both think people on the federal government's "no fly list" should be categorically denied their right to buy guns under the Second Amendment. Both candidates have repeatedly said so for months. Trump's stance on this issue should be deeply troubling to those who care about gun rights—and also to people concerned about constitutional rights generally, even if they don't care much about this one.
As both the ACLU and conservative commentators point out, the no fly list is notoriously inaccurate. It is also provides little or no due process protections. The process is secret, people are not told the reasons why they were placed on the list, and they are not given any advance opportunity to challenge the designation. And, once on the list, even a completely innocent person might find it difficult and time-consuming to get off it.
If Trump is committed to the idea that your Second Amendment rights can be stripped on such a flimsy basis, with so little due process, then virtually any other politically feasible limitation on gun rights is also acceptable. The sort of reasoning that would uphold this restriction on gun ownership would permit pretty much any other. That should give pause to people supporting Trump because they think he is going to protect Second Amendment rights. It is also yet another reason to doubt that he would appoint originalist judges committed to protecting important constitutional rights generally. Most such judges are unlikely to uphold these kinds of gun regulations (as well as many other items on his political agenda).
Trump's disdain for Second Amendment rights is not limited to the no fly list. At last night's debate, he also said he wants police to use "stop and frisk" searches to take away guns from "bad people." It's not entirely clear what he means by this remark (it could be interpreted as being limited to people the police believe to be "felons" or "gang members" whom he also mentioned in the same part of the debate). But, at the very least, it's another example of him advocating gun confiscation without due process. It also indicates a disturbing level of confidence that the government can identify "bad people" and take away their guns without victimizing the innocent.
Even people who do not care much about gun rights and the Second Amendment have reason to be concerned about Trump's position on this issue. As liberal legal commentator Mark Joseph Stern (who is no fan of gun rights), points out, if this constitutional right can be taken away with so little due process, others can be as well:
If the government can revoke your right to access firearms simply because it has decided to place you on a secret, notoriously inaccurate list, it could presumably restrict your other rights in a similar manner. You could be forbidden from advocating for causes you believe in, or associating with like-minded activists; your right against intrusive, unreasonable searches could be suspended. And you would have no recourse: The government could simply declare that, as a name on a covert list, you are owed no due process at all.
Stern believes that the Second Amendment should not be interpreted as protecting an individual right to bear arms. But so long as the Supreme Court continues to hold otherwise, revoking this right on the basis of a secret list with no due process sets a dangerous precedent for other constitutional rights.
In fairness to Trump, Hillary Clinton is no better than he is on the no fly issue. It is, as already noted, one of the few things they agreed on last night. While I believe that she is, on balance, a lesser evil than Trump, this is not one of the issues that makes her so. On other gun control issues, she almost certainly favors more extensive regulation than he does.
But there is this difference: Hillary Clinton—and many other liberals—make no bones about the fact that they believe either that the Second Amendment does not protect an individual right to bear arms at all, or that the right in question is an unimportant one that should be relegated to second-class status compared to what they see as more significant parts of the Bill of Rights. I think they're badly wrong about that. But their reasoning at least creates the possibility that they—and the judges they pick—could approve the no-fly list gun ban without creating too much of a dangerous precedent for other constitutional rights. Like Stern, I believe that many liberals seriously underrate the risk of dangerous slippery slope effects in this area. But at least they are making some effort to contain them.
By contrast, Trump repeatedly claims that he's a strong supporter of the Second Amendment. If he's nonetheless willing to undermine it so blatantly, that does not bode well for the many constitutional rights for which he has (even) less regard.
UPDATE: Commenters on Twitter point to Trump's seeming support of a GOP bill sponsored by Sen. John Cornyn that would allow the government to ban people on the "no fly list" from buying guns for only 72 hours, after which they would have to go to court to provide evidence of links to terrorism, in order to extend the ban. It's a fair point, and one I should have addressed in the original post. But I don't think it much changes the bottom line on the dangerous implications of Trump's position on this issue.
While it is entirely possibly that Trump would sign the Cornyn bill if it passes, he has never clearly stated that he supports it. Much more significantly he has never said that he will only support the "no fly, no buy" policy if it includes a right to a judicial hearing. And, in the debate last night, he suggested the contrary by emphasizing his essential agreement with Hillary Clinton on the issue. He even said he "quite strongly" agrees with her. This implies he would be just as happy to sign a bill with no such judicial safeguards (which is the approach Clinton advocates). Trump did indicate that there should be a legal way for people to get off the no fly list if they should not be there. But, of course, that is no different from the status quo. People can already—entirely legally—get off the no fly list by asking the federal government to remove them. It just often takes many months or even years to happen.
The important broader issue here is not whether Trump would sign the Cornyn bill. It is Trump's cavalier approach even towards those constitutional rights, such as the Second Amendment, that he claims to strongly support.