The No-Fly List and the 2nd Amendment

(Mods, if this feels more like a GD topic feel free to move it there)

There has been discussion recently, that persons on the no-fly list should not be able to purchase guns. There has been push-back on that, to the effect that this would mean removing constitutionally-guaranteed 2nd amendment rights without due process.

Which causes me to wonder: isn’t the no-fly list in itself an infringement on rights without due process?

Which causes me to wonder a follow-up wonder: is there such a thing as a right to fly on an airplane?

I’ll just note that it’s not always clear whether proposals of this type are limited to the no-fly list or also include the terror watch list (which is much larger but mostly people overseas, I think).

There is a constitutional right to travel, but it has never been specifically expressed as a right to travel by airplane.

The no-fly list has been criticized in the past for its infringement on the rights of people who have never been found guilty of anything, although the politics have flipped somewhat lately. With exceptions on both sides, of course, many people who are gun rights advocates have been uncritical of the no-fly list until the proposal to tie it to gun sales, and many people who have been critical of the no-fly list up to now have been willing to embrace it as regards access to guns.

Really, it is. It’s purely a bureaucratic decision who gets put on the list, and there have been numerous “false positives” where people have been detained because they have a similar name to some bad guy.

Nope, because

…you don’t have a constitutional right to fly on an airplane.

The Justice Department’s Office of Inspector General has criticized the list for frequent errors and slow response to complaints. An Office of Inspector General audit found that 38% of a 105 record sample contained inaccuracies.

friedo is (probably) incorrect. Each court to have considered the issue has found that due process protections apply to the government’s decision to take away your ability to fly because of the constitutional right to travel and because of reputational damage. I say probably incorrect only because the issue has not reached the Supreme Court.

The no-fly list is unconstitutional as currently operated because it is unconstitutionally vague in what is required to lose one’s flight privileges and because there is no realistic redress for anyone incorrectly placed on it. Making it apply to guns would only make it worse (though if you fixed the problem of vague standards and no redress, then it might be constitutional applied to guns as with flights).

Due process isn’t just a nice privilege to keep people happy. It also ensures good results because the government can’t just half-ass it’s job when it actually has to meet some burdens. There are some people who deserve to be on the no-fly list, but they would likely be on it even if there were proper procedures for both putting people on and taking them off. There are lots of people who don’t deserve to be on it. We shouldn’t be making their lives harder.

District Judge Anna J. Brown ruled in favor of the plaintiffs saying that air travel is a “sacred” liberty protected by the U.S. Constitution

*Oregon federal judge ruled Tuesday that international air travel is a “sacred” liberty protected by the U.S. Constitution and ordered the government to amend its rules governing the so-called no-fly list, which seeks to prevent suspected terrorists from boarding airlines.

In the first such ruling of its kind, U.S. District Judge Anna J. Brown in Portland said that “international travel is not a mere convenience or luxury in this modern world. Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society.”

Therefore, she said, the government must change its procedures to allow U.S. citizens who find themselves on the no-fly list to challenge the designation.

She ordered the government to come up with new procedures that protect citizens’ due-process rights without jeopardizing national security. Passengers must be given notice of their inclusion on the list and a rationale for the designation and be allowed to submit evidence to challenge it, Brown said.*

Really, you can’t fault the gun rights advocates for being suspicous of these proposals. Last I heard, neither of the San Bernardino shooters were on anybody’s watch list, and in any case they didn’t buy the rifles themselves (an accomplice of non-Middle Eastern heritage bought them). So, no aspect of these laws would have helped.

I think the issue came up because one (or more) of the Paris shooters was on some sort of French watch list.

You are not allowed to publically threaten the President. You cant say out loud “I hope this airplane gets bombed out of the sky” while on a commercial airliner. Is the government infringing on your Constitutional right to free speech in those cases?

I’m not going to defend any inefficiencies or errors in the no-fly list – the government is under the obligation to do its job correctly, and if someone believes they are being wronged by being put on this list, they should have the ability to have a court take a look at the matter. But as a fundamental issue, I think it is reasonable to stop certain people from flying on U.S. airplanes if there is good evidence that they are connected to terrorism. In fact, I think it is negligent for the government to believe that someone is connected to terrorism and do nothing about it.

By the same measure, if there’s credible information that someone is associated with a terrorist group, why on earth would someone conclude that they ought to buy weapons when there’s a background check process already in place that could stop it? I’m not clear on why someone would think that, say, Anwar al-Awlaki was enough of a threat to kept off of airplanes, but we shouldn’t dare deny him access to firearms!

Oliver Wendell Holmes and the Supremes pretty much decided that in 1919. Fire in a crowded theater, etc.

“if there is good evidence that they are connected to terrorism”- that’s the point. No one knows what evidence there is, or how good it is. There may be no evidence at all, just a coincidental match.

If there was a hearing where the evidence was presented to a judge- sure, maybe. But there is no such hearing. There* may* be good evidence or there *may be no evidence at all. *

The government itself found out there was a 38% error rate.

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People can be denied access to firearms. There are existing checks in place. However, the attempt to use an obviously faulty no-fly list to ban a constitutionally-protected, individual, right is ludicrous.

It does make an entertaining talking parrot for Democrats and uninformed foreign nationals.

Is your proposal to eliminate the No Fly list? Because I’m saying it should be improved in the ways I mentioned.

Like how a person who arrives in the United States through the visa waiver program is allowed to buy firearms, but someone who arrives in the country on an embassy-issued visa is not allowed to? That’s the kind of existing checks you’re speaking of?

No. But you have the right to due process, and whatever liberty interest you have in air travel certainly outweighs the nonexistent “process” that exists for no-fly additions.

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The no-fly list needs to be GREATLY improved as a no-fly list before it should ever be considered for use to regulate a constitutionally-protected, individual right. Regardless of what the gun-banner and leading Democrat propaganda has to say on the issue.

You’ll have to provide specific cases as to who was denied and why. Has one of them been convicted of a felony?

The news article references a judge’s decision from June, 2014. The wheels of justice turn very slowly here.

And we’ve already seen that the right to fly has been declared such an individual right by some courts so the comparison is valid.

Comparison? Yes. Should the faulty no-fly list be used for any other purpose? No.

Obama (the bestest firearms salesman ever) could add your name to the no-fly list on a whim. You could never prove it (Executive Privilege), and based on someone’s decision to use the faulty no-fly list to deny firearm purchases, you wouldn’t be able to buy that Ruger single-six that you’ve had your eye on.