“People have due process rights in this country,” Speaker of the House, Paul Ryan, scolded the Democrats after they had provoked the Republicans, and their NRA partner, into seriously considering a No Fly, No Buy proposal. Ryan continued, asserting that “we can’t have some government official just arbitrarily put them on the list.” We can’t?
Ryan has never offered a justification for the utter lack of due process protections when individuals were peremptorily excluded from scheduled flights because they had been discovered to be on the No Fly list. The ACLU has objected for years to the lack of due process connected with excluding people from air flights, according to Joseph Greenlee in "No Fly, No Buy (and No Due Process)." So up until this moment people are added to the No Fly list based on the reasonable suspicion standard, the lowest level for justifying searches (frisks really) and detentions. This standard itself means only that there are articulable facts that warrant one to suspect that an individual will perform, or aid in performing, terrorists acts.
And that is the substantive standard that justifies the intrusion on individuals. Individuals are added to the No Fly list without any impartial consideration; no magistrate determines that there are adequate facts to warrant adding people to the list. The standard line is that those identified “as known or suspected terrorists” are “prohibited from flying to and from the United States and over U.S. airspace,” says the ALCU in "Know Your Rights: What To Do If you Think You’re on the No Fly List (2016)."
If you were added to the list, without any neutral person deciding this was justified, you may not even board a plane. And, as already noted, people are added to the list with no notice at all, and there has never been contemplated an opportunity to challenge the decision to place one on the list. The FBI tells us that they must keep the contents of the list a secret, lest increased transparency undermine their counterterrorism efforts, according to Philip Weismann in his article "FBI Flagged This Congressman as a Terrorist, Here’s Why He Opposed a New Gun Ban" published in the Daily Signal.
The ACLU has challenged the validity of the No Fly policy, and it observes that the only security offered is that persons denied the right to board a flight can submit a form to Homeland Security, and administrators of the program will then decide whether any action should be taken. Federal officials fighting terrorism do not view ordinary citizens as possessing any right even to challenge the basis for their inclusion on the No Fly list. If you asked an official of the Department of Homeland Security what procedure such persons are entitled to, they would all say “practically nothing.” We have no established legal right to challenge the decision to preclude you from boarding a plan. The government also refuses to provide any prior notice or subsequently to give a reason for inclusion on the No Fly List or a meaningful hearing at which you can clear your name.
But when the right to purchase a gun is at stake, conservative Republicans now see it as critical that would-be gun purchasers have advanced notice that government will challenge their right to purchase a gun—and an opportunity to contest that government determination. Hence the debate contests the “conservative” proposed standard, the one sponsored in the Senate by Senator Cornyn of Texas, which puts the burden on government to challenge a presumptive right to purchase a firearm, against a less protective proposal. Cornyn’s proposal requires that government object to an individual being able to purchase a firearm. If the individual rejects to the government’s proposed decision, the government has three days to carry its burden to show adequate grounds to preclude the suspected terrorist from purchasing the firearm.
By contrast, the “bipartisan” bill sponsored by Senator Collins would immediately bar gun sales to one on the No Fly list, but would allow citizens or green card holders to go to court and block their inclusion. In turn, that law would award attorney’s fees if the appeal were successful. The Cornyn proposal can be called a “front end” protection, as contrasted with the other simply opening the door to challenge the exclusion from the ordinary right to purchase.
The standard Republican justification for the extent of the due process rights offered to gun purchasers, in contrast to the virtually non-existent rights offered to mere flyers, is that due process rights are essential to protect the Second Amendment rights of American citizens. But consider this: the text of the Second Amendment nowhere states or implies that the apparently universal “right of the people to keep and bear arms” permitted government to disallow convicted felons to purchase firearms—yet they always have.
Historically, quite restrictive regulations designed to minimize the dangers posed to society by guns have been treated as presumptively acceptable. Thus the Court in the decision recognizing the Second Amendment as securing a personal right to arms still referred approvingly to time-honored prohibitions on carrying concealed weapons—laws that have been upheld numerous times. So while there is a “right” to “keep and bear” firearms, it is clear enough that government might forbid people to purchase firearms if they are reasonably thought to pose a danger to society.
We also should not overstate the difference between barring people from airplanes and forbidding them to purchase firearms. Courts have long found basic common law rights often amount to implied fundamental rights, that cannot be unreasonably denied to citizens. There is a common law right to travel, and it seems especially clear that individuals are entitled to use reasonable means to arrive at their scheduled destinations.
Consider the plight of state senator, Tom McClintock, who wanted to fly from Sacramento to his home in Santa Barbara. He discovered that he was forbidden to fly because he was on the federal no-fly list—a classic case of mistaken identity. For most of us, like Mr. McClintock, discovering ourselves as forbidden to fly would have more devastating consequences than being barred from purchasing a gun. Now it may well be true that individual terrorists can produce great harm, a fact that disposes us to recognize some flexibility in government’s right to bar suspects from flying; but the possibility of a repeat performance of the Orlando massacre suggests that much is at stake for society in the gun purchase context as well.
The ACLU observed that the no-fly list could prevent an American citizen the opportunity to fly home from a foreign nation. It observed that U.S. citizens have a right (recognized by the Supreme Court) under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad. Lawful permanent residents (also known as "green-card holders") have a similar right to return to U.S. territory under the Immigration and Nationality Act. Therefore, when a U.S. citizen or green-card holder is denied boarding in a foreign country due to apparent inclusion on the U.S. No Fly List, the U.S. government has at least a theoretical legal duty to help them secure approval to return to the United States via a commercial flight. The civil liberties group thus advises citizens and permanent residents on what to do if they are not permitted to access a ride home. Knowing how well-established the right to return home is, the organization has a set of strategies that includes contacting U.S officials in foreign nations. The no fly lists have been used for years, with some government accommodations. But note that the perceived importance of the war on terror has overwhelmed other considerations until now.
In the meantime, candidate Donald Trump managed first to invoke the necessity of using the no fly list to inform limiting gun purchase rights, but then invoked the due process concern to reject the no fly, no buy proposal. Note, however, that the Republicans as a lot have ignored due process where it is most urgently needed while using the Second Amendment to forestall reasonable government action. They have thus sought no middle ground to reconcile the right to travel and to “keep and bear” firearms with government’s duty to provide fair procedure. There is a middle ground, recognizing our interest in avoiding, if possible, terrorists acting to blow our planes from the sky and committing mass murder in crowded locales, even as we supply a means to challenge such restrictions. We could accomplish this if the conservatives would treat the Second Amendment as a right rather than as a fetish.