Thursday, December 10, 2015

The intersection of Gun Control, the Second Amendment, and Due Process

Someone is too dangerous to fly, they’re too dangerous to own a gun.  It seems simple enough right?  Well, the discussion is a little more nuanced than that.  The “no fly list” existed before 9/11, but it was merely an infant compared to the goliath it has become.  Before 9/11 there were 16 (that’s right, 16) people the government deemed “no transport” because of specific or suspected threats to aviation.  So the governmentally-imposed restriction on commercial air travel was minimal, in a country of 285 million people.

Immediately after 9/11, the list grew to several hundred.  More than a decade later, it is estimated that there are more than 47,000 names on the “no fly list.”  

And how did those names get there? 

The answer is – nobody knows for sure.  Since the Supreme Court has not recognized a Constitutionally guaranteed right to travel by commercial airline, there is no requirement that the government afford any individual “due process” before adding him/her to the list.  And so, over the years, there have been several publicized instances of folks being informed they are on the “no fly list” (by accident, or otherwise) for the first time at the airport terminal.  But since there’s no constitutional right at stake, it’s not so offensive, right?  Just a pain in the butt for a very small portion of the population (which, since 9/11 has increased to ~320 million).

But this is where the conversation gets tricky.  The Constitution does recognize the right to bear arms.  And a citizen cannot be deprived of a constitutional right without due process.  Get the rub?

Assuming the government can add you to the no fly list without due process (which is the subject of extensive litigation around the country), the justification is "we're not infringing anything in the Bill of Rights."  But the recent push to also disqualify those same folks of the right to purchase arms crosses a Constitutional line.

If the proposed legislation passes the Congress, it will quickly pass to the President’s desk for signature.  Thereafter, it will pass quickly to the U.S. District Courts for challenge.

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