President Barack Obama is trying to put Republicans on defense in the U.S. debate over gun rights with a call to ban people on the government’s no-fly list from buying firearms. The trouble is his proposal may be unconstitutional.
The idea is an occasional subject of Democratic legislation that Obama gave new life after the Dec. 2 mass shooting in California that killed 14 people, which the FBI has labeled a terrorist attack. Neither of the attackers, Syed Rizwan Farook and his wife, Tashfeen Malik, were on the no-fly list.
“What could possibly be the argument for allowing a terror suspect to buy a semi-automatic weapon?” Obama asked in an Oval Office address on Dec. 6, responding to the California assault and an attack last month in Paris that have together set Americans on edge. Obama will visit with families of those killed in San Bernardino today, on his way to Christmas vacation in his native state of Hawaii.
The short answer is: the Bill of Rights. While there’s no constitutional right to board an airplane, the Supreme Court has said the Second Amendment provides an individual right to own firearms. Courts have held that the government can suspend that right in certain cases – for felons and people who are the subject of restraining orders, for example. But it is unclear whether thousands of people on the no-fly list – many of whom may not even know of the restriction – can be unilaterally stripped of their right to bear arms.
“It’s hard to see how a constitutional right could be limited based only on suspicion,” Eugene Volokh, a constitutional law professor at the University of California-Los Angeles, said in a phone interview.
Still, nothing is simple when it comes to gun law.
“No-Fly, No-Buy,” as White House press secretary Josh Earnest coined it, has emerged as a politically potent talking point, allowing Democrats to hammer Republicans as more concerned with catering to the National Rifle Association than national security. Just one Republican in the Senate voted for the measure after it was offered by Democrats on Dec. 3, a roll call certain to be revisited in 2016 campaign ads.
Connecticut’s governor, Dannel Malloy, wants to bar people on the federal no-fly list from buying guns in his state. New York’s governor, Andrew Cuomo, has gone further, proposing to ban gun purchases by anyone on the government’s broader terrorism watch list. Malloy is discussing the matter with the Obama administration, he said in a statement, and Cuomo has sought access to the watch list. Both lists are classified.
Earnest has repeatedly sidestepped questions about whether a No-Fly, No-Buy policy would be constitutional, saying two weeks ago, for example, that he is "not a constitutional lawyer in a position to debate this." The White House has instead depicted the proposal as common sense.
“If the government has determined that it is too dangerous for you to get on an airplane, it’s the view of the administration that you should not be able to legally purchase a firearm,” Earnest said Dec. 4.
The Supreme Court didn’t explicitly rule that the Second Amendment protects an individual right to own guns until 2008, barely predating the Obama administration, and "left a lot of questions unanswered," said Nelson Lund, a constitutional law professor at George Mason University. The no-fly list itself has been the subject of legal challenges, further complicating the matter.
Former president George W. Bush’s administration created the list following the Sept. 11, 2001, terrorist attacks, reasoning that some people must be barred from air travel even when the government didn’t have sufficient evidence to charge them with crimes.
About 6,400 American citizens and permanent residents were on the no-fly list as of September 2014, according to congressional testimony by an FBI official. The criteria for inclusion are broad, and the list has created travel headaches for scores of innocent Americans, including military service members. The government does not notify people before placing their names on the list.
In 2014, a federal court ruled that the redress process for people erroneously placed on the list was unconstitutional. The government revised that system, allowing people who discover they are on the list to challenge their status by petitioning the Department of Homeland Security. The American Civil Liberties Union has nonetheless brought another suit arguing the government still provides insufficient due process.
Due process is central to Republican opposition to Obama’s No-Fly, No-Buy proposal.
“We do have a Constitution, citizens have a due process right, and anyone can just be arbitrarily placed on the list," House Speaker Paul Ryan said in an interview with CBS News earlier this month.
Democrats have attempted to circumvent the issue by writing into the No Fly, No Buy legislation procedures that would allow people denied a gun greater opportunities to challenge the decision. The government would have to provide within five business days an explanation of the denial, and unlike people who are forbidden from buying guns for other reasons, such as a felony conviction, those on the No-Fly list could challenge the finding in court.
Those provisions “might make a big difference,” and lower courts “would probably be more inclined to allow the government to do this,” Lund said.
Still, civil libertarians would surely argue that the process is unfair. Citizens would have to shoulder the cost and burden of a legal challenge, likely without being able to review classified evidence gathered against them.
The constitutionality of No-Fly, No-Buy would hinge on “what the procedures are to get off the list, how onerous are the particular procedures, how lengthy are the particular procedures,” said Robert Cottrol, a law professor at George Washington University.
Courts might also be wary of a policy that could set a precedent for the government to deny other rights simply due to inclusion on the list, Vokhol said.
“It’s kind of the camel’s nose under the tent,” he said. “Then the future restrictions would be even easier – you have a ‘No-Fly, No-Buy’ list, so why not a ‘No-Something-Else’ list?”
Supporters of the proposal point to other precedents: Courts have repeatedly ruled that the right to gun ownership is not absolute, and that the government can impose some restrictions.
People under a restraining order, for example, can be forbidden from buying or possessing guns, even when they have not been charged or convicted of a crime. In some states, restraining orders can be enacted automatically as part of divorce proceedings. Constitutional challenges to those restrictions have not stood up to appeal, said Sandy Levinson, a law professor at the University of Texas.
“You are showing at least some element of probable cause that somebody is a danger and if you can be shown to be a danger to a spouse or to someone else, you could be a danger to someone else,” he said.
It’s easier to challenge a restraining order than placement on the no-fly list, however.
“At least with a restraining order, the person seeking a restraining order would have to go before a judge – and one knows which court and which judge has issued the restraining order,” Cottrol said.
Courts have also upheld prohibitions on gun sales to undocumented immigrants – who enjoy broad constitutional protections like the right to free speech even though they are in the country illegally – and to fugitives and people suspected of drug use.
In each case, the government restricts Second Amendment rights without a trial or presentation of evidence. And would-be purchasers are constrained in their ability to challenge the decision.
Those contradictions have constitutional scholars in agreement: If it’s ever enacted, Obama’s No Fly, No Buy plan will draw a complicated and unprecedented legal challenge.
“There’s no doubt if the proposal passed there would be litigation,” Levinson said.