By Harold Pease, Ph. D
“No one on the government’s no-fly list should be able to purchase a firearm,” was the immediate response from both Hillary Clinton and President Barack Obama to the massacre in an LGBT nightclub in Orlando, Florida by radical Muslim extremist Omar Mateen. Perhaps even Donald Trump, the presumptive Republic nominee for president, who plans to meet with the NRA to talk about the no-fly list, could be vacillating on this issue. Moreover, nine senators, led by Republican Susan Collins, want the no-fly list to apply to purchasing firearms as well. They all need to be reminded that there exist serious Bill of Rights concerns in doing so.
The President refers to those on the list he creates as “terrorist suspects” but terrorist is only loosely defined. Both Vice President Joe Biden and former House Speaker Nancy Pelosi have used the word in reference to the Tea Party Movement. How many are listed varies with respect to who one cites but it is many thousands. Everything is so clouded in government secrecy that virtually no one knows how they got on or get off the list. Should you inquire as to your status with respect to the list the typical answer is, “as a national security issue the government can neither confirm nor deny your listing.”
George W. Bush created the no-fly list after 9/11 which today forbids perhaps as many as 80,000 from flying in or out of the country. Whether maintained by Bush or Obama a secret no-fly list for U.S. citizens is a restriction on someone because of a perceived belief, practice or action (a punishment if you will) applied without any evidence of unlawful behavior—he may not fly. If there had been unlawful behavior the person would be incarcerated and the issue of a no-fly list would be irrelevant. A second punishment is applied if he is also denied the right of a firearm. This turns upside down the judicial standard, “innocent until proven guilty.”
Remember U.S. Senator Ted Kennedy was once on the government’s no-fly list as was a six-year-old boy, a number of persons over 80 years of age, and an 18-month old toddler Reianna (last name not given in the CNN report to protect family identity). The accused rarely is informed of the government’s intention to punish him until he attempts to fly and is forbidden doing so.
No-fly restrictions violate Amendment 5 as the accused is denied “liberty” (he cannot fly as do others) “without due process of law”—a way to challenge the punishment. The Amendment guarantees the person the right to be accused before punishment, but no accusation was made nor was evidence presented to anyone outside the government to evaluate, such as to a jury. States too, in Amendment 14, are forbidden the same in similar wordage, “…nor shall any State deprive any person of life, liberty, or property, without due process of law….”
It also violates Amendment 6, which guarantees the accused of his right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” None of this happens for the no-fly list people as the government has already effectively convicted and rendered punishment, sometimes indefinitely.
Should Congress adhere to the Obama/Clinton, and perhaps Trump, request to “make sure no one on a no-fly list is able to buy a gun” they will amplify the already existing constitutional infractions of Amendments 5, 6 and 14 and keep thousands of lawful Americans from protecting themselves with arms. Amendment 2 guarantees “the right of the people to keep and bear Arms,” and certifies that this right “shall not be infringed.” This too would be violated for 80,000 persons without any real evidence of wrongdoing.
Moreover, even if such a law were passed it is well to remember that—a mere law—cannot trump a constitutional amendment—most especially four amendments, as using a no-fly list to prohibit purchase of a firearm would do. The only constitutional way that Obama, Clinton, or possibly Trump can change these amendments is with a new constitutional amendment, which a president cannot constitutionally initiate (see Article V).
Remember too, a government secret list of “bad guys,” has already been used by the Obama administration to punish his political enemies. The IRS used such a list to punish perhaps 200 Tea Party Organizations. Louis Lerner, one of those most responsible for doing so, pled the Fifth Amendment to avoid perjuring herself.
Hillary Clinton, the least trusted presidential candidate in U.S. History, used every government organization at her disposal to punish or vilify the women who had affairs with her husband while he served as governor of Arkansas and president of the U.S. With her personal integrity ratings so low it would be expected that she would use a no-fly law against her political enemies.
Hopefully, presidential candidate Trump will not take too long to see the damage to the Bill of Rights by the proposed no-fly legislation and use his influence to defeat it.