Banning Gun Sales to People on No-Fly List May Not Be Constitutional, Experts Say

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Source: Time

Constitutional experts cite ongoing problems with no-fly list criteria

On Thursday, Connecticut Gov. Dannel Malloy announced plans to issue an executive order barring anyone listed on federal terrorist watch lists from purchasing a gun in the state. But while the idea of “no fly, no gun” has found growing support following the mass shooting in San Bernardino last week, including that of President Obama, experts say such a policy may be unconstitutional.

The problem lies with the terrorist watch lists themselves, which are both secret and routinely updated without the typical due process given to those who are accused of breaking the law, such as court proceedings. Without a trial, the government can add anyone to watch lists who it believes may be a threat to national security—and exactly how the government defines such a threat isn’t even public knowledge.

“The government doesn’t release its criteria,” says Elizabeth Goitein, co-director of the Liberty & National Security Program at New York University’s Brennan Center for Justice. “It’s really a black box.”

Such an ad-hoc approach to these lists raises fewer concerns when they are merely used to keep track of potential suspects, but becomes more legally problematic when their many members are denied certain rights or privileges. The no-fly list, which includes individuals deemed too dangerous to board a plane, is just one of several lists reportedly used by the government, but is often the one that gets the most attention. The Wall Street Journal has reported that there are 16,000 names on the list, with the larger Terrorist Screening Database including 420,000 names.

In 2014, a federal court found the no-fly list unconstitutional because it denied those listed due process in challenging their inclusion. Since then, the U.S. government has said it’s providing more information to those who are on the list, potentially allowing persons banned from air travel to appeal and get their names removed. The ACLU, however, is still challenging the list in court, arguing that the government isn’t handing over enough information about how it populates those names. The civil liberties organization is also against barring those included from being denied guns for similar reasons.

“We are opposed to the use of terror watch lists, as presently constituted, to screen gun purchases,” said ACLU National Security Project Director Hina Shamsi. “We believe the lists are deeply flawed.”

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