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No Fly, No Buy (And No Due Process)

Joseph Greenlee February 17, 2016
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If you have been following the Democratic primaries or keeping up with President Obama’s recent gun control push, you have likely heard the phrase, “no fly, no buy.” It refers to the argument that people on the federal government’s No-Fly List should be prohibited from passing a background check to purchase a firearm.

President Obama called the current system “insane.”  “Right now, people on the No-Fly List can walk into a store and buy a gun.That is insane. If you’re too dangerous to board a plane, you’re too dangerous, by definition, to buy a gun.”

Hillary Clinton has similarly voiced her displeasure: “If you are too dangerous to fly in America, you are too dangerous to buy a gun in America.”

Opponents of the ban, like the National Rifle Association, have been maliciously accused of wanting to arm terrorists.  But it is the Constitution that prevents persons on the No-Fly List from being automatically prohibited from purchasing firearms—at least, the way that the No-Fly List is currently administered. 

The No-Fly List is a subset of the Terrorist Watchlist developed by the Terrorist Screening Center (TSC), which is administered by the Federal Bureau of Investigation. (Notably, some previous efforts, like the Denying Firearms and Explosives to Dangerous Terrorists Act of 2015, have disingenuously been presented as No-Fly List bans while actually applying to the entire Terrorist Watchlist.)

Individuals are added to the No-Fly List based on “reasonable suspicion.” The director of the TSC explained that “[r]easonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual ‘is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities.’” 

“The reasonable-suspicion standard is not a particularly high threshold to reach. ‘Although ... a mere hunch is insufficient…[it] need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.’” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002) (citations and internal quotation marks omitted from original)).

In addition to the low “reasonable-suspicion” standard, the government provides no official notification to those on the No-Fly List. In Latif v. Holder, 28 F. Supp. 3d 1134, 1161 (D. Or. 2014), in which the court held the government’s process for challenging inclusion on the No-Fly List unconstitutional, the federal district court explained:

[The government’s] failure to provide any notice of the reasons for Plaintiffs' placement on the No–Fly List is especially important in light of the low evidentiary standard required to place an individual in the [Terrorist Watchlist] in the first place. When only an ex parte showing of reasonable suspicion supported by “articulable facts ... taken together with rational inferences” is necessary to place an individual in the [Terrorist Watchlist], it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.  Thus, without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No–Fly List.

The unconstitutionality of the process by which individuals are added to the No-Fly List – as it relates to the list then being used to deny constitutional rights – is exacerbated by the near impossibility of getting removed from the list. The redress process was held unconstitutional in Latif, and subsequently modified in April of 2015, but many of the problems that resulted in its unconstitutionality persist. Once challenged, the government will now at least inform the party whether or not they are on the No-Fly List, but it still refuses to sufficiently reveal its reasons for including somebody on the list. So simple clerical and factual errors are still difficult to correct and frequently go unnoticed, and challengers are still left guessing what they must dispute in order to clear their names. The revised redress process is again being challenged by the ACLU.

Put simply, the procedures for getting both on and off the No-Fly List are insufficient to deprive Second Amendment rights under the Constitution’s Due Process Clause. Due Process prevents the government from depriving “any person” of “life, liberty, or property” without minimal safeguards, such as notice and a hearing. 

The deprivation of a fundamental right is a deprivation of liberty. And the right to keep and bear arms is a fundamental right.   McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). Therefore, the right to keep and bear arms cannot be deprived without due process. 

The core of due process is fundamental fairness, which requires that an individual be provided with notice of any proceedings against him and an opportunity to be heard at those proceedings. Mathews v. Eldridge, 424 U.S. 319 (1976).  The No-Fly List provides neither.         

“For-cause” public employees are entitled to pre-termination notice and an opportunity to be heard, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), as are recipients of disability benefits, Mathews v. Eldridge, 424 U.S. 319 (1976).  And an evidentiary hearing must be held before welfare benefits are terminated. Goldberg v. Kelly, 397 U.S. 254 (1970). Certainly then, due process must require notice and an opportunity to be heard before Second Amendment rights can be terminated.

The First Circuit held the same in United States v. Rehlander, 666 F.3d 45, 48 (1st Cir. 2012). In ruling that a statute prohibiting the possession of firearms by persons committed to a mental institution could not apply to temporary involuntary emergency hospitalizations based only on ex parte procedures, the court explained that after the Supreme Court’s decision in D.C. v. Heller, 554 U.S. 570 (2008):

[T]he right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required.

The No-Fly List firearms prohibition would undermine many principles fundamental to our nation’s scheme of ordered liberty, including the right to keep and bear arms, the presumption of innocence, and the right to due process.  Regardless of the result of the ongoing political dispute over the ban, it is in conflict with the protections set out in the Constitution.  

That is not to say that any restriction on the Second Amendment rights of individuals on the No-Fly List is necessarily unconstitutional.  Indeed, many prior restraints have been widely accepted in the Second Amendment context, some of which could likely be tailored to achieve the government’s interest in preventing suspected terrorists from possessing firearms without violating the Constitution. But to deprive Americans of a fundamental right because of their inclusion on a secret government list that is compiled on the basis of secret criteria and virtually impossible to challenge is fundamentally unconstitutional and should offend every American’s sense of fairness. 

Questions? Reactions? Email blog@fedsoc.org with your response to continue the conversation. Select comments may be published on the blog.

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