Posted by Kristin McCarthy on June 16, 2016 in Blog

There are multiple pieces of gun control legislation that have been pieced together in response to the horrific mass shooting at a gay nightclub in Orlando. All four Senate proposals (and the potential compromise bill) are seeking to “keep guns out of the hands of terrorists,” which is hardly a disagreeable goal; terrorists should not have guns, terrorists should be in jail. The Senate is expected to vote on them this Monday.

However agreeable the goal of these bills are, the legal method by which the bills will deny constitutionally protected rights to a certain category of people before they commit any criminal act, let alone a violent one, are rightly being put through the ringer by civil liberties advocates. You see, there is a gaping lack of due process at the heart of post-Orlando gun control proposals that must be addressed.

One proposal would flag any person who has been “investigated” on suspicion of “terrorism” during the background check process, and the sale of a gun to that person would require the approval of the Attorney General. The concern here is multi-fold: First, neither of the key terms – “investigated” or “terrorism” – are defined, nor capable of being defined in a way that would be narrow enough to avoid blatant profiling, nor broad enough to catch the real threats. For instance, does it count as having been “investigated” if, say hypothetically, a Nobel Prize winning economist U.S. citizen is reported as suspicious on an airline, and then interviewed by the FBI? On the other hand, members of a violent white supremacist movement being actively investigated would not be flagged because the prevailing definition and intent of the word “terrorism” doesn’t encompass this type of pre-crime threat. If you don’t want to believe the myopic approach to preventing the sale of guns to would-be mass shooters in America, take a look at the title of one such proposal: “Secure our Homeland from radical Islamists by Enhancing Law enforcement Detection” (SHIELD).

It’s speculated that bills proposing a fix along these lines will likely fail along with others, but the compromise version warrants even more consternation. This proposal harkens back to a bill that was killed by the Senate a mere six months ago, with minor modifications and new grandiose promises of due process. The proposal wants to use two “terror watch lists” – this time it is the “No Fly List” and the “Selectee List” whereas last year a larger list was in play - to create a no-gun-sale list. Legislators who have gone down this road before are trying to get out in front of civil liberties concerns about mistakes on the lists by promising a robust redress process that they say will surely address any concerns about due process prior to banning all gun sales based on these lists. However, this show of respect for due process and the ever growing problem of government watch listing is hollow at best.

It is dishonest of legislators to pay mind to due process when 2nd Amendment rights are broadly at stake, when many were silent when these “terror watch lists” were initially created without due process at all. To be clear, there is a valid and necessary national security need to have watch lists, but the process by which American citizens are added to such a list should abide by due process protections. But due process has never been a concern of watch-listing practicesEven a cursory search for stories about people mistakenly on a watch list suggest that there is no systematic and judicious consideration of the reasons why individuals are added to the list. A sitting U.S. Senator and a 4-year-old make that point pretty clear. Making the redress process additionally problematic, valid national security concerns dictate that people are not told that they’ve been placed on the list; most watch-listed Americans find out when they’re subjected to additional security screenings and/or denied boarding at an airport.

So, while the conversation about due process is greatly appreciated when considering the use of terrorist watch lists for further deprivation of constitutionally protected rights, those who really concern themselves with due process should have raised these concerns much, much earlier. And as for the promises of a healthy redress process, there are plenty of reasons to be entirely skeptical. Look at the 5-year, hard fought court case of thirteen people who sued the government to earn the right to challenge their placement on the No Fly List. At the end, all they won was a chance to clear their names after a court found the redress process to be constitutionally inadequate and “wholly ineffective.” During and after the case, the government has fought tooth and nail to prevent the redress process from being subjected to any due process demands.

Gun control – an important debate given the United States has the highest frequency of mass shootings and gun violence in the world – should not be predicated on a flawed, discriminatory system. Associating gun control efforts with any watch list must either be rejected wholesale or come with an overhaul of how watch listing fundamentally works.