Close the “no-fly list loophole”. It’s a no-brainer. Loopholes should be closed. The trouble is the phrase is deeply misleading. It would be a loophole if the no-fly list had been developed to stop people buying guns but someone had forgotten to include a provision on guns in the legislation. It is not a “loophole” that the no-fly list doesn’t prevent people from buying guns. It was designed to – prepare yourself for a shock, here – prevent people from flying. It simply doesn’t – by design and intent – cover the buying of guns, driving cars at excessive speed, or the selling of drugs. Those issues are addressed in separate legislation.
The legislation that Senator Dianne Feinsten proposed to stop people on the Consolidate Terrorist Watch list – a wider list than the no-fly list – from buying guns didn’t actually mention the no-fly list, though everyone on the watch list is also on the no-fly list. The FBI is notified if someone on the watch list buys a gun. The San Bernardino killers, by the way, were not on this list.
There is a real question as to whether the no-fly list is constitutional. It was struck down by a federal judge in Oregon last year, but the debate rages on. The ACLU is against it. So was the New York Times. The paper described it as: “a violation of basic rights” and declared it unsuitable for a “democratic society premised on due process.” This was when the no-fly list was being used for the purpose for which it was designed, to stop people flying.
Critics have a point. Senator Ted Kennedy was prevented from boarding a plane because there was someone on the list who used the alias “T Kennedy”. It took three weeks to sort out the error. It took Rahinah Ibrahim, a professor of architecture from Malaysia, ten years of litigation.
It seems odd, then, that the Times should endorse the use of the wider watch list, of which the no-fly list is a subset, to deny people their right to buy guns. How can a list which the paper considers is not fit for the purpose for which it was designed be somehow, presumably by complete coincidence, be fit for some other purpose?
And if the list violates the “basic right” of being able to fly – something not mentioned in the Constitution – how can it somehow pass muster when being applied to an enumerated constitutional right? Let’s be clear: it is no part of this columnist’s case that there is no right to fly. Freedom to travel is a basic right and is surely among the unenumerated rights in the Ninth Amendment. An arbitrary restriction that prevents people who are suspected of being involved with crime from flying based on secret evidence which they cannot challenge is almost certainly a breach of due process. But if this is so with an implied and unenumerated right then it must also be so with a right expressly mentioned in the Constitution. If people were banned from blogging on the basis that someone in the Justice Department suspected them of terrorist sympathies there seems no doubt that the New York Times would be outraged. Free speech is guaranteed by the Constitution, but so is the right to keep and bear arms.
Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com
Filed under: U.S. Politics
