THE BLOG
06/15/2016 08:23 pm ET Updated Dec 06, 2017

Guns, Terrorists, And The Constitution

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As I write this, there is a filibuster currently going on in the Senate. Senator Chris Murphy and other Democrats launched this filibuster to draw attention to the fact that suspected terrorists in America can still legally buy guns. Murphy represents Connecticut, where the Newtown massacre happened, and thus he feels very strongly about the issue of gun control.

Republicans, at least as of this writing, seem more willing to compromise on the issue than they've ever been before. Bills with a similar objective have been rejected by a (mostly) party-line vote in the very recent past, in fact. But the outrage over what happened in Orlando is tangible, and the GOP seems to actually realize it this time. Even Donald Trump says he's about to meet with the National Rifle Association in an effort to convince them to support banning suspected terrorists from legally buying guns. This is a significant shift from the party that has been refusing to do just that for the past few years.

But I have to say, while all this seems laudable at first glance, the underlying (and bipartisan) disdain for the United States Constitution is extremely worrisome. Just to be clear, I'm not talking about the Second Amendment here, but rather the Fifth and Fourteenth Amendments. Here are the relevant clauses: "No person shall... be deprived of life, liberty, or property, without due process of law...." (Fifth Amendment); and "...nor shall any State deprive any person of life, liberty, or property, without due process of law...." (Fourteenth Amendment).

It's always a little tricky to oppose such popular legislation, and that is even more true when the idea comes from your side of the political spectrum. But I have to say I am with the American Civil Liberties Union on this one. From an article written just this past December, the A.C.L.U.'s director of their National Security Project wrote:

Last night, in response to last week's tragic attack in San Bernardino, California, President Obama urged Congress to ensure that people on the No Fly List be prohibited from purchasing guns. Last week, Republicans in Congress defeated a proposal that would have done just that. "I think it's very important to remember people have due process rights in this country, and we can't have some government official just arbitrarily put them on a list," House Speaker Paul Ryan said.

There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform.

I'd go one step further, personally. If we're going to have a No-Fly List and a Terrorist Watch List to provide security for American citizens, then we need to codify such programs by passing a constitutional amendment which clearly spells out the limits and scope of such programs. To me, there is simply no other constitutional way to achieve this goal.

Now, don't get me wrong. I'm not arguing that such pre-emptive security measures are inherently a bad thing. And I'm certainly not arguing that suspected terrorists should be able to easily acquire high-powered weapons. I'm not "pro-terrorist" in any way, shape, or form. Just to be clear.

But I am arguing that what we've got now is blatantly unconstitutional. And it appears nobody else is even willing to make such an argument, at the moment. Republican Senator Pat Toomey, who is trying to forge a compromise between the two parties on the issue, stated his concerns today:

What we need is a process that would block terrorists from being able to purchase a firearm and at the same time, make sure there's a mechanism whereby someone who gets wrongly put on a list has a chance to clear their name and you know, get their Second Amendment right.

He falls short of questioning the constitutionality of such lists in the first place, but rightly points out that the due process to get taken off the lists is currently woefully inadequate. Even the National Rifle Association seems to now be singing the same tune:

The N.R.A.'s position on this issue has not changed. The N.R.A. believes that terrorists should not be allowed to purchase or possess firearms, period. Anyone on a terror watchlist who tries to buy a gun should be thoroughly investigated by the F.B.I. and the sale delayed while the investigation is ongoing.... At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watchlist to be removed.

Both of these statements fail to make the truly constitutional argument about the concept of the lists themselves. Which is a shame, because it's almost impossible to argue for their constitutionality.

There are many of these blacklists that the government now keeps. The two most often referenced in the debate are the No-Fly List and the Terrorist Watch List. Both are incredibly secretive in nature, making even knowing how many people are on the lists almost impossible to determine. The most recent numbers I could find showed that there were 47,000 people on the No-Fly List as of 2013, and 800,000 people on the Terrorist Watch List as of 2014. But it's really anyone's guess how extensive either list is, due to the secrecy surrounding who is on these lists.

The criteria for inclusion on the lists is also secret. Few people have any idea they're on the list until they attempt to fly on a plane, for the most part. Mistakes abound. Just on the smaller No-Fly List, the number of prominent people who have been mistakenly listed is a long one, and includes members of the U.S. Congress itself (the most famous being Edward Kennedy, who was apparently matched up with the vague "T. Kennedy" even though his legal name was not Ted or Teddy). And that's only the shorter of the two blacklists.

The A.C.L.U. is challenging the No-Fly List in court. From the same article:

Separately, the government made two basic arguments in its defense of the No Fly List, both of which the court rejected. First, it argued that U.S. persons had no constitutionally protected right to fly. In August 2013, the court disagreed, holding that constitutional rights are at stake when the government stigmatizes Americans as suspected terrorists and bans them from international travel.

Second, the government asserted that national security concerns meant the government couldn't confirm or deny whether people were on the No Fly List, and it couldn't give them reasons or a hearing before a neutral decision-maker. This is absurd as a practical matter and violates due process as a constitutional matter. Practically speaking, people know they are on the No Fly List when they are banned from flying and surrounded -- and stigmatized -- by security officials publicly at airports. Some of our clients were told they would be taken off the list if they agreed to become government informants. Again, the court agreed with us and held that the government's refusal to provide any notice or a hearing violates the Constitution. As a result, the government announced in April that it would tell U.S. citizens and lawful permanent residents whether they are on the No Fly List, and possibly offer reasons.

Unfortunately, the government's new redress process still falls far short of constitutional requirements. In our case, it refuses to provide meaningful notice of the reasons our clients are blacklisted, the basis for those reasons, and a hearing before a neutral decision-maker. Much as before, our clients are left to guess at the government's case and can't clear their names. That's unconstitutional.

Now, the Founding Fathers didn't explicitly list the right to fly anywhere in the Constitution. Airplanes wouldn't exist for over a century, when the document was written. But the right to freely travel on public conveyances is definitely covered by the word "liberty" in the due process clause. Banning a citizen from flying is restricting their liberty. Period. And that is only supposed to happen after due process of law has been followed.

The No-Fly List and the Terrorist Watch List turn the legal concept of "innocent until proven guilty" on its head. The government -- without any legal due process whatsoever -- puts people on the lists merely because it suspects them of wrongdoing or evil intent, and then it is up to them to try convincing the government to remove their names. That is constitutionally topsy-turvy, which is why it's disappointing that even conservative Republicans and the N.R.A. refuse to make this case (where are all the Libertarians when you need one?).

Blacklisting people from flying is one thing, but blacklisting people from buying a gun is another, because of the Second Amendment. The courts have declared that individuals have the constitutional right to own and purchase guns. So taking that right away becomes even more problematic, legally speaking. There are several classes of people who are banned from owning or purchasing guns already, but each has some form of legal process that has to happen before such a ban takes place. Violent felons are restricted from owning guns, but they are already felons -- in other words, they were previously convicted of a felony in a court of law. The gun ban is part of their punishment. People with mental problems usually have some sort of competency hearing in court, or at least their lawyers can press for one if they are involuntarily deemed a risk by a doctor. Dangerous threats (such as stalkers or domestic abusers) are dealt with by restraining orders -- issued by a judge.

But no one included on the blacklists has had any such legal proceeding. The government makes a determination that you are too dangerous to fly, and bingo, you're on the list. You are not even informed of this decision by the government, and they certainly don't have to present evidence for why you should be blacklisted to any judge (much less give you the opportunity to rebut their evidence). Until the government was challenged in court (and embarrassed by Teddy Kennedy in public), there wasn't even a process for being able to prove you were mistakenly included at all. And currently, this process is completely inadequate (which is why the A.C.L.U. is still fighting it in court).

The entire concept of governmental blacklists is completely unconstitutional. But, as people back to Abraham Lincoln have pointed out, the Constitution is not a suicide pact. This feeling is often invoked in a time of war, when the government sees fit to curtail certain rights. But we are currently in what can only be called a generations-long conflict. The other side does not wear uniforms or follow the Geneva Conventions. Therefore the government might need to take measures in the name of national security. Rational people would all agree, most likely.

Such measures have already curtailed the freedom of movement for some citizens, who are not allowed to board a commercial airline. What is now being discussed (with a filibuster to draw the nation's attention) goes even further and would deny citizens one of the rights explicitly spelled out in the Bill of Rights itself. This all might be a necessary and commonsense reaction to the very real threat of terrorists having access to military-style weapons.

Fortunately for us all, there is a remedy to reconcile the passion some are now feeling on the issue with our founding document. It's spelled out in the Constitution itself, in fact. What is absolutely necessary for the continuation of such blacklists as the No-Fly List and the Terrorist Watch List -- and for any expansion of them to ban gun sales -- is that a constitutional amendment be drafted to grant the government what would otherwise be an unconstitutional power. The usual argument against a constitutional amendment probably wouldn't apply, because due to public outrage it would probably be pretty easy to get both Congress and the state legislatures to quickly ratify such an amendment. Due process would be included to get folks like the N.R.A. (and the A.C.L.U.) on board. It would achieve the Democratic goal of stopping terrorists from easy access to weapons. Constitutional amendments are -- by design -- hard to pass, and we haven't seen one succeed in two decades. But "it's too hard" or "we just don't do that anymore" are not valid excuses for attempting to pass some legislative shortcut that will eventually (almost inevitably) be declared unconstitutional by the Supreme Court.

If America does have a consensus that we're all basically OK with the concept of governmental blacklists, and that we further approve of curtailing constitutional rights for people on such lists, then it should be relatively easy to get the necessary votes in Congress and the statehouses. And then, once enshrined in the Constitution itself, there would be no further questions of the legality of such blacklists. If it's in the text of the Constitution (as an amendment) then it is, by definition, constitutional.

 

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