Mimesis Law
27 June 2017

No-Fly No-Gun Is Such A Bad Idea It May Actually Be Good

September, 29, 2016 (Fault Lines) – During Monday’s debate, while ostensibly answering a question about healing racial tensions, Secretary Clinton meandered into a discussion about the terrorist watch list and its cousin, the no-fly list. Of course, it wasn’t to say how racist and offensive the very idea of the watch list should be, it was to offer this insight:

And we finally need to pass a prohibition on anyone who’s on the terrorist watch list from being able to buy a gun in our country. If you’re too dangerous to fly, you are too dangerous to buy a gun.

Despite having no hesitancy to interject grunts, panting and insults throughout the rest of the debate, Mr. Trump did not freak out about this particular remark. Instead he said,

First of all, I agree, and a lot of people even within my own party want to give certain rights to people on watch lists and no- fly lists. I agree with you. When a person is on a watch list or a no-fly list, and I have the endorsement of the NRA, which I’m very proud of. These are very, very good people, and they’re protecting the Second Amendment.

But I think we have to look very strongly at no-fly lists and watch lists. And when people are on there, even if they shouldn’t be on there, we’ll help them, we’ll help them legally, we’ll help them get off. But I tend to agree with that quite strongly.

Civil libertarians have been loudly criticizing the terrorist watch list and the no-fly list, since our government acknowledged their existence. This is for good reason. The lists are full of inaccuracies, populated with totally innocent people with foreign-sounding names, premised on the flimsiest whiff of suspicion, etc. And while an enlightened society should not tolerate this nonsense, advocacy groups, led by the ACLU, have been largely unsuccessful in shutting the list down, or even reforming it.

But maybe we have been thinking about this all wrong. Perhaps the best we can hope for is an even more robust watch list that carries weighty restrictions of all sorts of constitutional liberties.

The ACLU has been fighting the watch list and the no-fly list for more than six years in a case called Latif, et al v. Lynch, et al. In that case, 10 U.S. Citizens, including U.S. military veterans, who were put on both lists despite having no criminal record and no ties to any terrorist organizations, sued to either shut down the lists or at least force the government to justify its actions. At present, the efforts have been largely unsuccessful and the case is still ongoing.

One of the problems the plaintiffs have is that they can’t assert a very strong constitutional interest in not being on the lists in the first place. It sucks to be put on a terror watch list just because you have a foreign-sounding name. It is horrible to be completely unable to fly for the same reason. But there is no constitutional right to not be on a secret government watch list. And the nebulous constitutional right to international air travel is not exactly one that gets a lot of protection.

Even if placement on a list implicates a constitutional right, the test to determine if that right can be restricted requires the court to weigh the importance of the right against the government’s purported interest in systematically taking away that right for no good god-damned reason. Because the watch-list implicates no constitutional rights, you have no redress at all for being included. Concerning the no-fly list, even assuming you have a constitutional right to international air travel at all, it isn’t exactly the sexiest one.

This means that, in a challenge to the no-fly list, the court has to weigh the importance of the maybe non-existent right to international air travel against the need to keep our children and mommies and puppies safe from terrorism. Who do you think is ultimately going to win that fight?

If, however, inclusion on the watch list or no-fly list results in deprivation of Second Amendment rights, then a lawsuit might actually get somewhere. I doubt any other constitutional right gets the equivalent bumper-sticker respect from the populace. The federal courts have also been falling all over themselves recently to extend Second Amendment rights in ways that people never thought possible a few years. It is hot right now. If, the no-fly no-gun list became a reality and the NRA were to file a constitutional challenge, the list may very well be finally taken down.

So, is the no-fly no-gun list a good idea? Hell no.

However, if one actually becomes a reality, at least the government would be provoking the right adversary to get it shut down.

3 Comments on this post.

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  • Keith
    29 September 2016 at 10:05 am - Reply

    Be careful what you ask for, you just might get it.

  • DaveL
    29 September 2016 at 12:21 pm - Reply

    Kind of like how a Trump presidency might finally convince Congress and the courts to rein in the expansion of Executive power?

  • Ernie Menard
    29 September 2016 at 9:30 pm - Reply

    When I first heard of the ‘no fly – no gun’ idea my first thoughts were that rule would be a means for people to challenge their inclusion on the no-fly list. The government should be able to be compelled to articulate why a particular person is on the list and consequently lose their 2nd Amendment rights. So, actually it’s a wonderful idea [well, at least for those that can afford a lawyer.]