So let’s alter the question a little bit: let’s say a person has a long history of schizophrenia which is fully detailed in medical records, but hasn’t been convicted of a crime. You think that person has a right to buy a gun?
That’s a bit different. If the person is informed in advance and is able to challenge the prohibition, then I don’t see a problem.
Let me alter the questions a bit for you: Do you think being on the “No Fly List” should allow the police to search that person’s house without a warrant? And just to be clear, let’s make sure we’re talking about any random person on the list, not someone who pops up on the radar as “May blow up a bomb at a shopping center within the next hour”.
That’s a shame, you could use basic human rights legislation.
Let’s keep in mind during this discussion that the bills the Democrats have been proposing are not limited to the No Fly List, but to the much larger “Terror Watch List”. The latter has almost 2M individuals on it (although some are not residents of the US). And it’s not just the NRA that has a problem with this legislation, but the ALCU does, as well.
Due process does not require a certain fixed procedure. Various USSC decisions have said so. It’s not a one line ‘fact’ from Wikipedia.
Specifically, it’s not an absolute requirement that the govt notify you in advance of actions against you. The police don’t have to tell you in advance they are going to tap your phone, if they have a warrant. Nor by the same token is a case specific warrant the only conceivable case where they don’t have to tell you.
Courts might find that a ‘no gun’ (or ‘no fly’*) list without prior notice is constitutional depending on oversight of the process by which somebody’s name is put there, and certainly and critically that the person has a means of challenging that finding when they discover it because their purchase is delayed as a result. Permanent prohibition based on administrative action with no redress: that would clearly be unconstitutional. Delay of purchase pending a person’s challenge in court to their name being on the list, but without prior notice of their name being on the list: possible. I don’t think internet commenter amateur lawyers are going to settle that.
*in the kind of performance art that 2nd amendment debates have become people might claim a huge priority for a person’s right to buy a gun v merely fly, but in practical fact in the modern world if you deny a person the right to fly you’ve effectively denied them the more basic right to come and go as one pleases, especially internationally, if there’s any degree of coordination among countries and it’s automatically ineffective if there isn’t. You can’t drive or take a train overseas, not that easy to do it by ship nowadays.
The trend that we see after every one of these episodes is criticizing agencies for not doing more to prevent a mass casualty attack. As a result, there is a greater push for more data collection. Yet, paradoxically, more data may in fact be part of the problem. By collecting anything and everything we possibly can, by identifying any and all possible threats, we might be making the job of law enforcement more difficult. We need ways to find quality data. Beyond that we have to accept the fact that no matter what we do, we can’t prevent all of these incidents.
You are ignoring the fact that I was responding to a specific scenario proposed by Ravenman, in which no warrant was given. So your protest depends on taking my post out of context.
Yes, the courts might find that a different procedure would be constitutional. Which is exactly what I said earlier in post #33. But we’ve been discussing the existing procedure, not some other hypothetical one.
Yes, and everyone on those lists should also be prevented from posting on the internet, writing letters, calling people and otherwise spreading their message of terrorist HATE and their plans to blow up yankee stadium!!!
:rolleyes:
Until you wanna fly somewhere and can’t, thus cancelling your plans at the very last minute, losing your airfare, etc. Due to the fact your name is similar to someone on the list. Or you posted a blog with opinions some Fed doesnt like. And then’s there’s the $10000 or so in legal fees.
And under the new plan, you would not be able to buy a gun even after you had a judge remove your name from the list as the law is five years retroactive.
The people on the list- at least those who are USA residents- have not been “deemed” to be terrorists.
Well, 90% of the list are foreigners. But the 10% who are American???
**There is no legal definition. No due process. **You can simply be a political activist. or sending emails to an American imam the FBI may have been monitoring. or " *priests, elderly nuns, Green Party campaign operatives, left-wing journalists, right-wing activists and people affiliated with Arab or Arab-American groups." *
*Notable cases[edit]
False positives and abuses that have been in the news include:
Numerous children (including many under the age of five, and some under the age of one) have generated false positives.[28][29][30]
Daniel Brown, a United States Marine returning from Iraq, was prevented from boarding a flight home in April 2006 because his name matched one on the No Fly List.[31]
David Fathi, an attorney for the ACLU of Iranian descent and a plaintiff in an ACLU lawsuit, has been arrested and detained because his name was on the No Fly List.[32]
Asif Iqbal, a management consultant and legal resident of the United States born in Pakistan, plans to sue the U.S. government because he is regularly detained when he tries to fly. He has the same name as a former Guantanamo detainee.[33][34] Iqbal’s work requires a lot of travel, and, even though the Guantanamo detainee has been released, his name remains on the No Fly List, and Iqbal the software consultant experiences frequent, unpredictable delays and missed flights.[35] He is pushing for a photo ID and birthdate matching system, in addition to the current system of checking names.[36]
Robert J. Johnson, a surgeon and a former lieutenant colonel in the U.S. Army, was told in 2006 that he was on the list, although he had had no problem in flying the month before. Johnson was running as a Democrat against U.S. Representative John McHugh, a Republican. Johnson wondered whether he was on the list because of his opposition to the Iraq War. He stated, “This could just be a government screw-up, but I don’t know, and they won’t tell me.”[37] Later, a 60 Minutes report brought together 12 men named Robert Johnson, all of whom had experienced problems in airports with being pulled aside and interrogated. The report suggested that the individual whose name was intended to be on the list was most likely the Robert Johnson who had been convicted of plotting to bomb a movie theater and a Hindu temple in Toronto.[6]
In August 2004, Senator Ted Kennedy (D-MA) told a Senate Judiciary Committee discussing the No Fly List that he had appeared on the list and had been repeatedly delayed at airports. He said it had taken him three weeks of appeals directly to Homeland Security Secretary Tom Ridge to have him removed from the list. Kennedy said he was eventually told that the name “T Kennedy” was added to the list because it was once used as an alias of a suspected terrorist. There are an estimated 7,000 American men whose legal names correspond to “T Kennedy”. (Senator Kennedy, whose first name was Edward and for whom “Ted” was only a nickname, would not have been one of them.) Recognizing that as a U.S. Senator he was in a privileged position of being able to contact Ridge, Kennedy said of “ordinary citizens”: “How are they going to be able to get to be treated fairly and not have their rights abused?”[38] Former mayor of New York City Rudy Giuliani pointed to this incident as an example for the necessity to “rethink aviation security” in an essay on homeland security published while he was seeking the Republican nomination for the 2008 presidential election.[39]
U.S. Representative, former Freedom Rider, and Chairman of SNCC John Lewis (politician) (D-GA) has been stopped many times.[40]
Canadian journalist Patrick Martin has been frequently interrogated while traveling, because of a suspicious individual, believed to be a former Provisional Irish Republican Army bomb-maker, with the same name.[41][42]
Walter F. Murphy, McCormick Professor of Jurisprudence at Princeton, reported that the following exchange took place at Newark on 1 March 2007, where he was denied a boarding pass “because I [Murphy] was on the Terrorist Watch list.” The airline employee asked, “Have you been in any peace marches? We ban a lot of people from flying because of that.” Replied Murphy, “I explained that I had not so marched but had, in September 2006, given a lecture at Princeton, televised and put on the web, highly critical of George Bush for his many violations of the constitution.” To which the airline employee responded, “That’ll do it.”[43]
David Nelson, the actor best known for his role on The Adventures of Ozzie and Harriet, is among various persons named David Nelson who have been stopped at airports because their name apparently appears on the list.[44][45]
Jesselyn Radack, a former United States Department of Justice ethics adviser who argued that John Walker Lindh was entitled to an attorney, was placed on the No Fly List as part of what she [46] believes to be a reprisal for her whistle-blowing.
In September 2004, former pop singer Cat Stevens (who converted to Islam and changed his name to “Yusuf Islam” in 1978) was denied entry into the U.S. after his name was found on the list.[47]
In February 2006, U.S. Senator Ted Stevens (R-AK) stated in a committee hearing that his wife Catherine had been subjected to questioning at an airport as to whether she was Cat Stevens due to the similarity of their names.[44][48]
U.S. Representative Don Young (R-AK), the third-most senior Republican in the House, was flagged in 2004 after he was mistaken for a “Donald Lee Young”.[49]
Some members of the Federal Air Marshal Service have been denied boarding on flights that they were assigned to protect because their names matched those of persons on the no-fly list.[50]
In August 2008, CNN reported that an airline captain and retired brigadier general for the United States Air Force has had numerous encounters with security officials when attempting to pilot his own plane.[51]
After frequent harassment at airport terminals, a Canadian businessman changed his name to avoid being delayed every time he took a flight.[52]
In October 2008, the Washington Post reported that Maryland State Police classified 53 nonviolent political activists as terrorists, and entered their names and personal information into state and federal databases, with labels indicating that they were terror suspects. The protest groups were also entered as terrorist organizations. During a hearing, it was revealed that these individuals and organizations had been placed in the databases because of a surveillance operation that targeted opponents of the death penalty and the Iraq war.[53]
In April 2009, TSA refused to allow an Air France flight from Paris to Mexico to cross U.S. airspace because it was carrying Colombian journalist Hernando Calvo Ospina. Air France did not send the passenger manifest to the US authorities; they did however send it to Mexico who forwarded it to the US.[54]
On 19 August 2009, flight Air-France AF 438 was not allowed to cross US airspace because of the presence on board of Paul-Emile Dupret, civil servant at the European Parliament for 18 years, who had written some articles criticizing that the EU policies toward Latin America because are to much aligned on the US ones.[55] On 20 March 2016, Air France in Charles-De-Gaulle Airport blocked the boarding card of Dupret and suggested him to speak with a US security agent in the Airport. AF 438 did not cross US airspace, but even so Paul-Emile Dupret was not allowed to fly to Montreal and to take part in an official delegation of the European Parliament to Ottawa and Montreal.
Bollywood actor Shah Rukh Khan was held for extensive questioning by US Immigration and Customs officials in August 2009, because as he reported, “his name came up on a computer alert list.” Customs officials claimed he “was questioned as part of a routine process that took 66 minutes.” Khan was visiting the United States to promote his film My Name Is Khan, which concerns racial profiling of Muslims in the United States.[56]
In June 2010, The New York Times reported Yahya Wehelie, a 26-year-old Muslim-American man was being prevented from returning to the United States, and trapped in Cairo. Despite Wehelie’s offer to FBI agents to allow them to accompany him in the plane, while shackled, he was not permitted to return. The ACLU has argued that this constitutes banishment.[57] In July 2010, Wehelie was permitted to fly to New York under a federal waiver.[58]
A U.S. citizen, stranded in Colombia after being placed on the no-fly list as a result of having studied in Yemen, sought to re-enter the U.S. through Mexico but was returned to Colombia by Mexican authorities.[57]
Michael Migliore, a 23-year-old Muslim convert and dual citizen of the United States and Italy, was detained in the United Kingdom after traveling there from the U.S. by train and then cruise ship because he was not permitted to fly. He said that he believes he was placed on the no-fly list because he refused to answer questions about a 2010 Portland car bomb plot without his lawyer present.[59] He was released eight or ten hours later, but authorities confiscated his electronic media items including a cell phone and media player.[60]
Abe Mashal, a 31-year-old Muslim and United States Marine Veteran, found himself on the No Fly List in April 2010 while attempting to board a plane out of Midway Airport. He was questioned by the TSA, FBI and Chicago Police at the airport and was told they had no clue why he was on the No Fly List. Once he arrived at home that day two other FBI agents came to his home and used a Do Not Fly question-and-answer sheet to question him. They informed him they had no idea why he was on the No Fly List. In June 2010 those same two FBI agents summoned Mashal to a local hotel and invited him to a private room. They told him that he was in no trouble and the reason he ended up on the No Fly List was because of possibly sending emails to an American imam they may have been monitoring. They then informed him that if he would go undercover at various local mosques, they could get him off the No Fly List immediately and he would be compensated for such actions. Mashal refused to answer any additional questions without a lawyer present and was told to leave the hotel. Mashal then contacted the ACLU and is now being represented in a class-action lawsuit filed against the TSA, FBI and DHS concerning the legality of the No Fly List and how people end up on it. Mashal feels as if he was blackmailed into becoming an informant by being placed on the No Fly List. Mashal has since appeared on ABC, NBC, PBS and Al Jazeera concerning his inclusion on the No Fly List. He has also written a book about his experience titled “No Spy No Fly.” [61]
In November 2002 Salon reported that the No-Fly program seemed “to be netting mostly priests, elderly nuns, Green Party campaign operatives, left-wing journalists, right-wing activists and people affiliated with Arab or Arab-American groups.” Art dealer Doug Stuber, who ran Ralph Nader’s Green Party presidential campaign in North Carolina in 2000, was prevented from flying to Europe on business in October 2002. He was repeatedly pulled out of line, held for questioning until his flight left, then told falsely he could take a later flight or depart from a different airport. Barbara Olshansky, then Assistant Legal Director for the Center for Constitutional Rights, noted that she and several of her colleagues received special attention on numerous occasions. On at least one occasion, she was ordered to pull her trousers down in view of other passengers.[62]*
Yes, maybe. After thousands of dollars in legal fees, and the Government refusing to even say why you are on the list. And even when they agree you shouldn’t have been on the list, the fact that you WERE on the list still means you still can’t buy a gun under the current Dem plan.
In addition to John Mace’s correct points, many such challenges have been scuttled by a combination of state secrets doctrine and inability to prove that you are on the list at the outset of the suit in order to show standing. Eventually, if you bring enough suits with sympathetic enough plaintiffs then some district court judge will hear the merits. But we don’t know yet what will happen at higher levels with these cases.
In the national security context, saying the courts can just sort it out is–most of the time–wrong. Our system relies very heavily on the executive choosing not to wantonly violate our rights in the name of national security.
If you want the court to protect rights, then the executive has to stop kicking out the cases on state secrets and standing.
I’m talking about a scenario in which this guy with schizophrenia just shows up at a gun store one day, and his background check shows a history of mental illness. (To be perfectly clear, I don’t know the details of how mental health records are absorbed into the databases used for background checks, so let’s make this an issue of principle rather than technicalities.) For the purposes of this scenario, the guy hasn’t been the subject of law enforcement interventions, but simply has a vast history of serious mental illness.
On principle, do you think that this guy should be able to buy a gun?
I would presume that the same information used to put this guy on the No-Fly list could be used to get a warrant, so no, I don’t see why that’s a good idea. I think the no-fly list and not letting those listed buy guns without some sort of much higher level adjudication are the so-called ounce of prevention. Searching his house goes beyond forestalling a potential danger.
Well, the ACLU doesn’t go as far as the OP in suggesting that the list be abandoned totally. And the NRA’s statement doesn’t say it has a problem with the overall concept, but they have a nuance on implementation that seems reasonable to me. And finally, Frank Luntz dos a survey a couple years ago that found that three-quarters of NRA members had no problem with denying gun sales to those on no-fly lists.
[Responses to other posts to come later]
I’m afraid I’m going to have to say “not enough data to decide”. The law needs to be clear, and what you call a “vast history of mental illness” might be completely treatable. We may also have to deal with the ADA and implication it would have. Point being, the law needs to be crafted carefully with specific, as-unambiguous-as-possible criteria. In theory, I think such a law could be crafted, but I wouldn’t bet my life on it.
OK, but I just want to note that there is a difference between “not letting those listed buy guns without some sort of much higher level adjudication” and “if you’re on the No Fly List, you should not be able to purchase a gun”.
The current law for being denied the ability to buy a gun is described broadly in the Form 4473. For mental health issues, the standard is adjudicated mentally defective. Currently the BATFE guidelines are here.
Here is an elaboration of that document:
More at the link.
Mere schizophrenia wouldn’t necessarily be sufficient to be disqualifying, and would not even be reported to NICS.
And I’m also fine with having an IRS. I await your next post that predicts that I will be opposed to the IRS if I ever have a bad audit. Or that I will propose the elimination of police if I ever get arrested. Or the elimination of the Constitution if it ever prevents me from doing what I want to do.
Come on, this is a question of general principle. Do you think John Doe, who has a long history of schizophrenia, ought to be able to walk into a gun shop and walk out with a gun the same day? I’m saying such a person should undergo some kind of heightened scrutiny. I understand you’re asking for more data, but if I asked you answer question of general principle – such as whether a starving person should go to jail for stealing bread – I don’t think “I need to think about what kind of bread it is, or else I need a precise definition of starving” is a responsive answer.
First of all, thank you for the information. But it cements in my mind that the gun laws in this country are a perversion of the maxim of justice that says its better for a thousand guilty people to go free than one innocent person be convicted. Instead in this case, I guess the law judges that its better that a thousand unsuitable people be able to buy guns than one suitable person be temporarily hindered in buying a gun.
I think the idea is that most people who suffer from mental illness aren’t a danger to themselves or others. Some are, but most aren’t. And when we’re talking about enumerated constitutional rights, the level of due process that is involved when denying that right should be higher than say, getting a driver’s license. I personally wouldn’t mind more some more strict screening processes, but I am weary these can be constructed in a way that respects due process and doesn’t infringe unreasonably. CA has tried to do more in this area and the way they’ve implemented is dumb.
I think suicide is probably the biggest cause of harm that people who suffer from mental illness inflict. That’s conjecture on my part. And while suicide is tragic in some cases, it’s not sufficient to motivate change in this area. A larger and easier opportunity to improve mental health screening would be mandatory reporting for those that meet the BATFE criteria above. State reporting is pretty poor so even just changing that area alone would be a significant improvement. We have a national database but it’s not used nationally.
I will eat my hat if the primary motivation to avoid stricter laws dealing with mental illness and guns is that we should take a more sophisticated view of mental illness. It is quite obviously, for the most part, that if there are increased barriers relating to the mentally ill, then we’ve entered the slippery slope upon which gun grabbers will soon be kicking down doors and stealing everyone’s guns.