Coauthored with Nathan Leamer of the R Street Institute. This op-ed was Independent Journal Review on June 27, 2016.
Having watched their Senate counterparts try and fail to get the requisite 60 votes for any of four separate gun-control measures last Monday night, House Democrats took the worst idea of the bunch and made it their last stand.
Conducting an unprecedented sit-in, the chamber’s Democrats occupied the House floor to demand a vote on legislation that would ban Americans from exercising their Second Amendment rights if their names happened to appear on a secret and error-prone government watch list.
On first blush, this “no fly, no buy” concept might seem reasonable. But, as with most bumper sticker slogans, it makes for a profoundly bad public policy. To allow government agents to strip Americans of their freedom to travel, much less their constitutionally protected right to bear arms, based on nothing more than their presence on a secret blacklist, is nothing short of modern-day McCarthyism.
Indeed, the “no fly, no buy” policy is a slippery slope at whose terminus is government authority to rob individuals of their rights without any semblance of Due Process. Why stop with the purchase of guns? If the government thinks a person is a danger to national security, why not bar them from making “unpatriotic” films, using social media or owning a car? Given this precedent, any and all of these actions could be taken at any time, against anyone, without so much as the opportunity to stand and contest formal charges in a court of law.
There is little available information about how the government’s watch lists are created or maintained. What we do know is that all the FBI needs to include a person on the No Fly List is “reasonable suspicion” that an individual is a threat or connected to terrorism. While this could potentially include real “bad guys,” it could just as easily include innocent Americans who merely have taken to social media to criticize the government, or who have traveled abroad, or who have used an encrypted phone. Membership on the list disproportionately affects religious minorities and removal from the list is notoriously difficult.
Republicans have rightly opposed the proposal to bar Americans on the “No Fly List” from buying firearms because the idea undermines the sacred American right to Due Process. Rep. Tom Cole (R-Okla.) summarized this position on Morning Joe, saying, “[N]obody knows how you get on the [no-fly] list. Once you are on it, it’s very hard to get off of it. It’s an incredible invasion of privacy and rights as an individual.”
Concerns with the list’s numerous errors and lack of accountability are echoed by an unlikely bedfellow, the ACLU. They recently wrote that “the standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error.”
While it’s encouraging to see Republicans oppose the ill-conceived proposal to expand the No Fly List and other watch lists, they must take the next step: ending the secret lists altogether. As GOP Speaker Paul Ryan (R-Wis.) has previously stated, “A mid-level bureaucrat can put anybody on a no-fly list with no due process rights.”
Ryan is in a prime position to end this abuse. Luckily for him, a bill to do so already exists. Rep. Justin Amash (R-Mich.) recently introduced H.R. 5179, the No Fly for Terrorists Act, which would ban the Department of Homeland Security (DHS) from prohibiting an “individual who is a citizen or permanent resident of the United States from boarding as a passenger on a flight” based on inclusion on a No Fly List or other terrorist watch list unless the person has actually been convicted of a federal crime of terrorism.
Should Republicans pass H.R. 5179, perhaps it would be a portent of their taking Due Process more seriously across the board. For example, the subject is central to concerns about America’s broken civil-asset-forfeiture system. In recent years, there has been growing interest, on both sides of the aisle, to curb law enforcement’s ability to “seize money and property without evidence that a crime has been committed.”
Everyone from John Oliver to the Washington Post have analyzed and critiqued the myriad ways federal and state law-enforcement agencies have abused forfeiture laws, which in some cases amount to “legalized theft.” In fact, the House Judiciary Committee has already passed H.R. 5283, the Due Process Act introduced by Rep. Jim Sensenbrenner (R-Wis.) which would establish desperately needed safeguards to our civil-asset forfeiture system.
Without Due Process, Americans will continue to have ample reason to fear being added to secret lists, or other abuses by their government. Republicans would be smart to build off of these first steps from Amash and Sensenbrenner and end “modern-day McCarthyism” once and for all.