Once again a terrible tragedy has occurred in our nation, and once again politicians are clamoring to make new laws restricting gun ownership in America. On Sunday, March 28, former white house chief of staff and former mayor of Chicago Rham Emmanuel appeared on ABC’s “This Week” and proposed several potential new gun control measures. The most concerning of these proposed measures was the No Fly, No Buy proposal.
I firmly believe such a law would violate every American’s constitutional right to due process of law. Under the proposed ban, any person whose name appears on the Federal No Fly List would not be allowed to purchase a gun. The No Fly List is a list of names created by the Terrorist Screening Center, a branch of the FBI. The original list was created shortly after the terrorist attacks of Sept. 11, 2001, and the list is so secret that the FBI and Transportation Security Administration (TSA) denied that the list even existed for the first two years of the program. The names on the list are still secret today, and there is no way to tell if your name appears on the list except by purchasing a ticket to fly on an airplane and attempting to board the plane.
Due to its secretive nature, and the simple reality that many people share the same name, the No Fly List has been very controversial. In George W. Bush’s presidency, it was revealed that Senator Edward Kennedy, congressman and former Civil Rights activist John Lewis, and prominent anti-war protesters such as Jan Adams and Rebecca Gordon were on the No Fly List. Numerous children, including many under the age of 5, have had their names on the No Fly List. Even members of our own military have found their names on the list, including U.S. Marine Daniel Brown, who was prohibited from returning home after serving his country in Iraq due to his name’s inclusion on the list.
At the end of George W. Bush’s presidency, approximately 47,000 people were on the No Fly List. At the end of the Obama administration, approximately 680,000 were on the list. By the middle of President Trump’s administration, the list had grown to include more than one million names, and this was the most recent data I could easily find. A 2014 leak from an intelligence analyst indicated that approximately 280,000 names on the list had no connection to any terrorist organization at all and were likely placed on the list for political or other unrelated reasons.
There is no formal process involved in placing a person’s name on the No Fly List. Nameless federal bureaucrats are in charge of the list, and you may not even know if your name is on it now. However, this has generally been allowed to go on because Americans do not have a constitutional right to fly on an airplane. Therefore, the government arbitrarily prohibiting some people from flying on planes has not created much public outcry.
In contrast, every American does have a constitutionally guaranteed right to own a gun. If Congress were to pass the proposed No Fly, No Buy legislation and prevent persons on the No Fly List from purchasing a gun, then far more attention would be paid. The same would be true if no one on the No Fly List could freely practice their religion, or if no one on the No Fly List were allowed to own property in the United States. The right to own a gun is protected by the Constitution, and it cannot be arbitrarily denied.
The constitution protects other rights as well. For instance, the Fifth Amendment to the Constitution states that no person shall, “be deprived of life, liberty, or property, without due process of law.” A constitutional right is a liberty. Therefore, the right to own a gun cannot be taken away without due process of law. At a minimum, this means that the government cannot forbid someone from owning a gun without first giving notice that it intends to do so, and then giving that person an opportunity to be heard on the issue.
Unfortunately, there is virtually no due process afforded to individuals placed on the No Fly List. Again, people placed on the list are not notified they are on the list. An individual can be placed on the No Fly List without being charged with a crime, and without an opportunity to defend themselves. The government refuses to provide Americans who know they are on the list with the full reasons for the placement, the basis for those reasons, or a hearing before a neutral decision-maker to determine if they should remain on the list. A process to seek to remove one’s name from the list does exist. It is complicated and very expensive, costing on average in excess of $30,000 per case. Thus, the process is mostly only available to the wealthy. It also is secret and according to the ACLU, error-prone.
Forbidding every person whose name appears on a very flawed secret government list from owning a gun is a terrible idea. It is also almost certainly an unconstitutional idea. I don’t want terrorists buying guns. I don’t want terrorists using guns. I can’t imagine anyone else wants that either. However, the No Fly List should not, and cannot be used as a basis to determine who may buy a gun.
Sadly, history shows clear evidence that individuals can be put on the list for reasons unrelated to whether they are dangerous or not. Furthermore, this proposal could result in purely innocent citizens being denied a basic constitutional right because they are unlucky enough to share a name with someone the FBI has a legitimate reason to be worried about.
At the end of the day, gun control is a complex issue. We need to be informed about it, and we cannot allow emotion to override logic. The proposed No Fly, No Buy law should not be considered, and I hope that our elected representatives will see what a bad idea it really is.
John Judkins is a Greenfield attorney.