Last Thursday, December 3rd, the US Senate rejected a proposal to authorize the Attorney General to deny firearms licenses or permits to anyone the Attorney General suspects to “be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism.”

Just three days later, President Obama made a somewhat similar proposal, but based on the no-fly list and thus — under the latest revisions to no-fly listing procedures — on the discretion of the Secretary of Homeland Security rather than the discretion of the Attorney General:

“Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” (Address to the Nation by the President, December 6, 2015)

Since the President asks, we’ll try to answer.

The President’s proposal is actually considerably worse than the one voted down by the Senate last week.

Substantively, the Senate proposal was vague and overbroad. It would have authorized denial of a gun permit to anyone suspected of engaging in “conduct … related to terrorism”. We write, speak, and engage in other conduct — protected by the the First Amendment — that is unquestionably “related to” terrorism. Does that mean that we can or should be denied the right to bear arms? What about the President, who undoubtedly engages in conduct “related to terrorism” every day?

But at least the Senate proposal had some procedural safeguards that the no-fly list lacks. People denied a firearms permit or license would have been given notice of the adverse decision and the basis (although not necessarily the evidence) on which it was purportedly based. Most importantly, anyone denied a permit or license would have been able to challenge the denial, and the government would then have the burden of proof:

In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States…. The court shall sustain the Attorney General’s determination upon a showing by the United States by a preponderance of evidence that the Attorney General’s determination satisfied the requirements of section 922A or 922B, as the case may be.

That’s very different from the complete lack of due process for no-fly decisions, none of which have yet been reviewed on their merits by any court.

The President’s proposal to use the no-fly list as the basis for other decisions is emblematic of the risks of “mission creep” involved in this sort of blacklisting. Secret, standardless administrative decisions not subject to judicial review shouldn’t be used as the basis for denial of the right to travel. Nor should they be used as the basis for the denial of any other right.

The fallacy of assuming that restrictions on the exercise of one right should automatically be extended to restrictions on other, unrelated rights becomes clear if one considers what would happen if the same thing were being proposed in reverse.

Far more people are barred from owning or possessing guns, without the slightest predicate in any conduct even arguably related to guns, than are on the no-fly list. All felons, without exception — millions of US citizens, most of them convicted of nonviolent drug offenses — are prohibited for life from ever possessing any firearm, even after they complete their sentence and any probation or parole. Being a felon in possession of a firearm is itself a Federal felony.

Would anyone seriously suggest that being a felon in possession of a passport, or a felon in possession of an airline boarding pass, should also be a crime? Or that felons should be prohibited from leaving or returning to the US? Any such law would be obviously unconstitutional, and a blatant violation of US obligations under Article 12 of the International Covenant on Civil and Political Rights.

We should neither impose additional restrictions on the rights of people on the no-fly list, nor add people to that list solely because their rights are already being restricted in other ways.

Many politicians’ and advocacy organizations’ responses to the President’s proposal appear to be driven by partisan gamesmanship rather than principles. Republicans who have never before lifted a finger to rein in “watchlists” (blacklists) have suddenly developed a concern for false positives in pre-crime predictions —  when Second Amendment rights, rather than First Amendment rights, are at stake. Others expressed concern for due process and prior restraint, and proposed that if the no-fly list is also to be used as a no-gun list, people whose names are placed on the list should be given notice of the evidence against them and a court hearing, something nobody on the no-fly list has yet been able to obtain despite years of litigation.

The ACLU says that, “There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform…. Until the No Fly List is fixed, it shouldn’t be used to restrict people’s freedoms..” We disagree. The no-fly list cannot be “reformed” or “fixed” by anything short of expungement. We can conceive of no circumstance in which a no-fly list of people not subject to arrest warrants or court injunctions restricting their rights could serve as a lawful basis for the restriction of any Constitutional rights, whether those be rights under the First Amendment, the Second Amendment, or any other.

On what has usually been the other side of the aisle from the ACLU, President Obama’s proposal has turned the National Rifle Association into an opponent of the no-fly list (and terrorist “watchlists” in general). Citing a litany of reports on wrongful watchlisting, the NRA says, “The NRA’s only objective is to ensure that Americans who are wrongly on the list are afforded their constitutional right to due process.” We hope the NRA maintains this concern and remains equally willing to criticize watchlisting regardless of whether it is being promoted by Democrats, Republicans, or both.

By linking gun control to the “war on terror” and the “prevention of terrorist travel”, the President has found a “wedge issue” with which to embarrass and divide his opponents. But he’s also embarrassed himself as a former professor of Constitutional law.

The no-fly list is unconstitutional because it restricts the right of freedom of movement. It’s unconstitutional because it restricts freedom of assembly. It’s unconstitutional because it restricts the right to assemble and limits anonymous association. It’s unconstitutional as a prior restraint on First Amendment protected activity. It’s unconstitutional because it’s secret law. It’s unconstitutional because it restricts these rights without due process of law. It is yet another form of mass surveillance of the movements and associations of every person who travels to the US, and of many who travel outside of the US.

Airline requests/demands for passengers to show government-issued ID originated not with any law enacted by Congress, but with a spur-of-the-moment suggestion by a White House aide in 1996. (See Richard A. Clarke, Against All Enemies, pp. 122-124). The no-fly list was similarly created by executive fiat. Despite having no basis in any law enacted by Congress, the list has been in use for more than 15 years and has expanded from less than 20 names to many tens of thousands, and expanded to be a “no-train” and a “no-ship” list as well.

Rather than using the no-fly list as the basis for additional extra-judicial sanctions, the President could, and should, exercise his authority to eliminate the no-fly list the same way it was created: by executive fiat. If he doesn’t, the public should demand that Congress step up to its responsibility to the Constitution, and eliminate the no-fly list and other terrorist “watchlists”.