No Fly No Buy? Why?
By John D. Turner
10 Dec 2015

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. – Benjamin Franklin, 11 Nov 1755

After every “mass shooting” (a term that is never defined), the clamor begins anew on the left, from the president on down, for “common sense” gun laws that will “prevent this from happening again.” This despite the fact that the laws proposed typically would not have even stopped the attack just perpetrated, much less any future attacks that may occur.

The latest attempt is to enact a law that would prohibit anyone appearing on the official government “no-fly” list from possessing a weapon. As Hillary Clinton puts it, “if you are too dangerous to fly in America, you are too dangerous to buy a gun in America.” Actually, Hillary has been touting this ever since the recent Paris terrorist attack.

On the surface, this seems a perfectly logical argument, and it is certainly a great 15-second sound bite on the campaign trail. And it is a demonstrably great tool for Democrats to use to bash Republicans, who do not support such legislation, over the head with, particularly in an election year. “If you don’t support this legislation,” they bleat, “then you must support the terrorists!”

However, it begs the question, is everyone on the list truly “too dangerous” to fly in America? And it’s corollary; are there people on the list who should not be on the list, and, if so, is it OK for the government to swoop down on such people and confiscate their weapons?

What is the “no-fly list” and how does one end up on it in the first place?

Back in September, Fox News posted an article on the 8 ways you can end up on the no-fly list. Even if you think that Fox News is “Faux News”, it makes an interesting read. As of August 2013, presumably the most recent data to which the reporter had access, there were 47,000 people on the list, including 800 American citizens. Most people who are on it have no idea they are, unless they attempt to board an aircraft.

Obviously, the government doesn’t send out official notices; if someone on the list actually was a threat, why would you want to tip them off that they were being investigated? Then again, if you discover that you are on the list and don’t know why, wouldn’t it be nice if someone told you why they put you there?

Here are the ways you can “make the list.”

  1. Be suspected of direct terrorist activity. This one seems a no-brainer.
  2. Travel to certain countries. Usually this involves “frequent travel,” not a one-time event. But not necessarily.
  3. Something you said in the past. To someone, on social media, etc, etc.
  4. Have a similar name to someone on the no-fly list. This doesn’t necessarily put you on the list, but it can result in you being denied a flight. Under this legislation it could also prevent you from purchasing a firearm, or have your existing firearms confiscated. Good luck getting them back if that happens!
  5. Not becoming an informant. So – you aren’t going to spy for us? Watch this!
  6. Clerical error. Gee, go figure! According to the article, “a Stanford University doctoral student was placed on the list in 2004. After seven years of federal lawsuits, it was deemed that she was unjustly put on the list because an FBI agent had checked the wrong box on a form.” Is this a justifiable reason to lose your guns and gun rights? Do you have the resources (and stomach) for seven years of federal lawsuits, as she had to endure, to get them restored?
  7. Law enforcement issues. This is because the no-fly list has “morphed beyond an air security tool into an all-out law enforcement tactic.”
  8. Controversial Tweets. The article states that this isn’t likely to land you on the no-fly list now, but it may in the future. The tweets are certainly being monitored.
Add to these, according to an article in the Daily Mail, drug use and criminal activity by someone with access to the databases. Or perhaps, someone related to you is in the database, or a friend, or an acquaintance, or the friend of a friend – that too might be enough to have your name added. Being charged with a crime, even if you are acquitted of all charges, can be enough to get you on the list.

And to add even more nebulosity to the equation, the government has admitted, in court, that it uses so-called “predictive assessment about potential threats” to put people on the list. No hard evidence, no follow-up investigation to make sure that the prediction is warranted. Best, I guess, to just keep them on the list “just in case.” More or less a bureaucratic CYA move; after all, what if you took them off and it turned out they were a terrorist?

Remember back in 2009 when it came out that the Department of Homeland Security sent a report to state law enforcement officials containing an “intelligence assessment” which included military personnel returning from Iraq and Afghanistan as “potential terrorists?” Should their names have been added to the list? There are provisions for adding entire categories of people at the stroke of a pen.

In the final analysis, the government puts people on the no-fly list by using an arcane determination of “reasonable suspicion (whatever that means),” via opaque methods it won’t disclose because doing so would “damage national security.” While this might be acceptable when it comes to allowing people to fly on an aircraft (after all, alternative transportation is available in most cases), it seems totally arbitrary and unsuitable when it comes to denying a person basic rights guaranteed under the Constitution.

In fact, one could make the parallel argument that if a person is deemed unsafe to fly on an aircraft, are they also unsafe to take a train or a bus? Are they unsafe to drive a car on the nation's highways? Are we safe if they are allowed to roam free? Are they unsafe to be around at all? Perhaps all such people should be locked up “for the good of society.”

What happened to “innocent until proven guilty;” the basis for our entire system of laws, rooted in English common law? In the case of the “no-fly” list, the burden of proof is on you to prove that you should not be on the list, not on the government to prove that you should; guilty until proven innocent - Napoleonic law, not English common law. Is innocent until proven guilty "a luxury we can no longer afford?" Do we really want to live in such a society?

Additionally, once something is in a database somewhere, it is usually assumed that it is factual and has been correctly entered by someone. Typically, mistakes or downright fraudulent entries are discovered only by accident, when the entry actually impacts someone or when an investigation of some sort brings it to light.

In 2011, a British immigration officer, who wanted to “get rid of his wife,” added her name to a list of terror suspects, which resulted in her not being able to fly back to Britain after visiting relatives in Pakistan. His gambit wasn’t discovered for three years; not until the immigration officer was selected for promotion and his wife’s name was found on the list while vetting him for the new position. Had that not occurred, the abuse of his position would have gone unnoticed and she would have faced permanent exile.

Reviewing the list, several things stand out. I can be put on the list for something I said in the past, having a similar name to someone else on the list, for saying something on Twitter (or presumably Facebook or my email, since those are also being monitored by the government), as a “law-enforcement” issue, or simply through “clerical error.” I could also end up on the list fraudulently, added deliberately by someone with an ax to grind. By linking the no-fly list to the ability to possess a firearm, anyone in the country could be instantly disarmed by anyone with the access to add a name to the list.

Judging from the difficulty encountered in fixing a simple clerical error, is anyone out there with firearms willing to take the chance on that one? How simple to deprive someone of their constitutional right to keep and bear arms! All it would take is some folks with the ability to effect the change; who don’t like conservatives, who don’t like Tea Party members, who don’t like Republicans, or who just don’t like guns in general, to disarm whomever they like with a simple check on a box.

Of course, no one in the government would ever do that, right? Lois Learner and the IRS immediately spring to mind as one glaring counter-example…

Then again, it is a Constitutional issue. Surely, such legislation, even if passed and signed into law, would be overturned by the Supreme Court. After all, the language is very clear; “the right of the people to keep and bear arms shall not be infringed.” Nothing in there about “except in cases of national emergency,” or “except if the person is on the terrorist watch list,” or “except if the government deems it necessary,” or even “except if the person is bat shit crazy.”

Then again, do you want to rely on nine men and women in black robes to determine your ability to possess a firearm? What is your opinion of their opinions on these recent issues? Campaign Finance Reform? Obamacare? Marriage? Care to risk it?

It could be argued “the people’s right to keep and bear arms” is not being infringed; it is merely your ability to do so that is being denied. The people, being the body of folks living in America who are not on the "no-fly" list, can as a group, still keep and bear arms; no one is infringing their right. It is you, singular, who, as a matter of public safety, can no longer “keep and bear.”

We already exclude some people from being able to possess firearms; those convicted of a felony spring to mind. We have ruled in the past that the first amendment right of free speech is not inviolate; you cannot yell fire in a crowded theater unless there is, in fact, a fire. It could be argued that this law follows in a similar vein.

Such a law could be catastrophic for gun owners.

Do you live in a state or county where you already have to go through “the chief law enforcement officer” to get a permit for a concealed carry weapon? Do you live in a state or county where, because of that person’s stance on firearms, it is almost impossible to obtain such a permit? What if he or she could completely disarm you at the stroke of a pen? Illegal? Maybe yes, maybe no, depending on how the law is written (and interpreted) - but easy to do; reference back to the case noted above with the British immigration officer trying to rid himself of his wife.

If you think the no-fly list is bad, what about the terrorism watch list, of which the no-fly list is a subset? According to Wikapedia, there are over 1 million people on that list. An article, published in The Guardian in July stated that 468,794 people were “nominated” to the list (few are rejected) in 2013 alone, and that “the standards for inclusion are far lower than probable cause” while “the ability for someone caught in the datasets to challenge their placement do not exist.”

Granted, the vast majority are not American citizens – at least not yet. But who knows in the future? If we enact a federal statute, applicable in all states and territories, where someone’s gun rights can be stripped in a process that doesn’t even require probable cause, who knows what will happen? Particularly in gun-control crazed states where people are just looking for an excuse to confiscate weapons.

What fun! Hey, if being on the no-fly list is a good reason to deny a person a gun then shouldn’t being on the “terrorist watchlist” be even better? Expect that to be the next leftist proposal.

As an interesting side note, the Guardian article mentions an individual who flew to Saudi Arabia to make the religiously encouraged pilgrimage to Mecca, and who subsequently got stranded in Bahrain after being placed on the terrorism watchlist for apparently traveling to “a locus of terrorism activity.” As an illustration of the arbitrariness of both the list and its application note that, according to published accounts here in the US, Syed Rizwan Farook, the San Bernardino “shooter” also made the same pilgrimage. In fact, he and his wife (the other shooter) were married in Mecca. Yet apparently neither is on either list; she passed a background check by the FBI and DHS and was granted entry to the US and a conditional green card last summer.

Then there is the question, if we passed this legislation, with all its flaws, in an attempt to feel good about “actually doing something” about the “problem”, would it actually accomplish anything other than to provide an easy method of stripping second amendment rights arbitrarily from anyone the government wants?

Not really. Federal law already bans people who are not U.S. citizens, lawful permanent residents, or holders of valid visas from buying guns in the U.S.; since the vast majority of the people on the no-fly list, and the terrorist watch list are not U.S. citizens, they already cannot legally purchase a firearm. Adding this law to the mix does nothing to further restrict them, but does give the government the ability to nullify the constitutional rights of vast swaths of the American public. This should set alarm bells ringing in the minds of anyone who values liberty, whether they favor gun ownership or not.

The no-fly list is a flawed tool that serves a specific purpose. It is a trip-wire that identifies certain individuals for increased scrutiny based, in the final analysis on someone’s opinion and not necessarily on hard, verifiable fact. It was not designed for, nor is it appropriate to use it for law enforcement purposes, or for purposes of stripping one of one’s rights under the constitution.

To so is, in fact, reminiscent of a recent movie, Minority Report, where “psychic technology” is used to arrest and convict “murderers” before the crime is actually committed, and demonstrates a level of faith in secret government processes and personnel that is entirely unwarranted and dangerous in the extreme to the personal liberties of every American on the right and on the left.

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