Op-Ed: Guns and the no-fly list: Whatever happened to due process?

The Federal Bureau of Investigation added Omar Mateen to its terrorist watch list twice, in 2013 and 2014, then removed him after closing its investigations. Even if Mateen had remained on the list, he would still have been allowed to buy a handgun and a Sig Sauer MCX, which he used in last weekend’s mass shooting at the Pulse nightclub in Orlando, Fla.

Opinion asked two writers who follow the gun debate closely to consider whether watch lists, and the “no-fly” list in particular, should be used to deny Americans the right to purchase firearms. Below, Charles C.W. Cooke of National Review says the answer is “no.” Click here for an essay by Timothy Edgar of Brown University, who takes the other side.

In the United States Senate on Wednesday, the Democratic party took square aim at the 5th Amendment. Speaking in the wake of the abominable terror attack in Florida, Minority Leader Harry Reid told his colleagues that “there is no excuse for allowing suspected terrorists to buy guns.” It is time, Reid said, to close the “terror loophole.”

Superficially, such a measure sounds welcome. There is, after all, virtually nobody in America who hopes to make it easy for terrorists to obtain firearms. And yet, once one focuses in on the key term in Reid’s sentence, “suspected,” all sorts of alarm bells should start to go off in one’s mind.

In free countries such as the United States, we insist that the government distinguish between those who are “suspected” of lawbreaking and those who have been arrested, charged, convicted, or — at the very least — named in a time-limited warrant that has been signed by a judge. We also demand that any restriction on an individual’s liberty is subject to the due process of law.

It is for this reason that we are happy to detain those who have been accused of, or charged with, a crime, but do not allow our authorities to arbitrarily imprison those they merely believe are worth watching. It is for this reason that we are comfortable with locking up or imposing penalties upon those who have been found guilty in a court of law, but refrain from doing either of those things on the basis of mere rumor or mistrust. And it is for this reason that we are prepared to inflict permanent restrictions on those who have been convicted of serious crimes, but insist that the innocent must enjoy their full complement of rights. By so callously blurring the line between “suspect” and “criminal,” Reid and company are undermining these principles.

And make no mistake: They are blurring those lines. When Reid and his accomplices argue that nobody on the “terror watch list” should be permitted to buy a gun, they are saying in effect that the government should have the power to deprive you of your enumerated constitutional rights purely by entering your name into a database.

This is unacceptable. Even if the “terror watch list” were transparent and well-regulated, there would be serious philosophical problems with such an arrangement. But for the government to propose using a system that is as opaque, as messy, and as downright bloated as is this one . . . frankly, it beggars belief.

As of 2014, roughly 40% of the hundreds of thousands of people on the government’s terror watch list had “no recognized terrorist group affiliation.” Worse still, those who find themselves ensnared are able to do pretty much nothing about their predicaments. As the U.S. District Court for the District of Oregon has put it, the setup is “arbitrary and capricious,” and represents an insult not only to the United States Constitution but to the Administrative Procedure Act as well.

In any other circumstance, the leadership of the Democratic party would be waxing lyrical about America’s proud traditions. Were it, say, freedom of speech that was at stake, rather than the right to keep and bear arms, we would be seeing filibuster after filibuster in which the speaker praised the Fifth Amendment and lionized the rule of law. But, alas, the topic is guns, and the Democratic leadership dislikes guns, and so the delicate, hard-won principles on which this country was so eloquently founded are to be discarded in a fit of pique.

And how. As the New York Times reported on Wednesday, the Democrats’ preferred reform would not only bar anybody who is currently on the list from buying guns, but would also restrict “anyone who had been on the list in the preceding five years.” How is this even remotely acceptable? Put in plain English, advocates of the measure are attempting to usher in a legal regime within which the state cannot only pick and choose whom it wishes to punish without a trial, but within which those who have been falsely accused will continue to suffer for at least half a decade. Or, stated another way, to lose your 2nd Amendment rights you need not be suspected of anything, you need only to have been suspected of something at some point in the recent past.

Over the past six months or so, Americans have been bombarded with endless warnings about the Republican Party’s embarrassing nominee for president. If Donald Trump were to be elected, it has been said, the United States would be just one ugly terror attack away from the widespread destruction of rights, the undermining of the rule of law, and the establishment of secret, Muslim-laden lists that could be used at the whim of the executive. How peculiar it is that when the strike finally came, Trump’s critics lined up behind him.

Charles C.W. Cooke is editor of National Review Online.

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