When the U.S. Supreme Court held in Heller (2008) that the second amendment means exactly what it says, namely that the people have a constitutional right to bear arms, it provoked a howl of outrage from progressive quarters. The intensity of that howl was possibly superseded only by the 2010 Citizens United decision, in which the Court held that the first amendment means exactly what it says, namely that “Congress shall make no law… abridging the freedom of speech”. Those expressions of progressive angst however stand in stark contrast to the cheers following Griswold v. Connecticut (1965) and later the Court’s discovery of a fundamental liberty right to abortion embedded in the 14th amendment under Planned Parenthood v. Casey (1992).
Such is their commitment to democracy and free expression, Democratic Members of the House decided to stage a sit-in on the floor of the House in order to grind business to a halt and, not coincidentally, shout down anyone in the majority who dared to offer a different opinion. They have threatened to keep it up until they get their way and get a vote scheduled on legislation to deny 2nd amendment rights to purchase a gun to anyone on a “no fly list” or other similar law enforcement list. Keep in mind that similar proposals (2 versions by Republicans and 2 by Democrats) were offered in the Senate. All four failed to pass.
For the time being let’s put aside the juvenile antics and examine the merits of the case, bearing in mind that the Court found in Heller (see above) that the 2nd amendment to the Constitution guarantees individual citizens the right to bear arms. Note that the Constitution does not grant these rights—the Constitution secures a pre-existing right.
So how big are these no-fly / suspected terrorist lists anyway?
According to the ACLU, the no-fly list is a list of people the U.S. has designated as known or suspected terrorists. Designated, not adjudicated. It is a subset of a much larger list called the Terrorist Screening Data Base (TSDB) operated by the FBI Terrorist Screening Center. The TSDB is the central terrorist watch list that consolidates the files of at least 11 different government agencies and departments. As of June 2016 the list is estimated to contain about 2.5 million records consisting of about 1.9 million individuals.
According to the ACLU, extreme secrecy surrounds the No Fly List. People only find out they are on it when they are denied boarding privileges (often very publicly). Moreover the ACLU argues that the process the government has established to challenge this blacklisting “… is grossly insufficient and violates the U.S. Constitution’s due process guarantee”.
All this falls under the Department of Homeland Security, a cabinet department of the federal government, with over 240,000 employees and a budget of $41.2 billion (net of receipts) in FY 2016.
So progressives want to deny a basic constitutional right (to bear arms) to citizens who are placed on a secret list by an anonymous bureaucrat where the existing appeals process is described by the ACLU as grossly insufficient and unconstitutional. And not to put too fine a point on it, the underlying assumption advocates presumably make is that the people on the list ought to be there.
The obvious question is: How would they know? What are the criteria for inclusion on the list, especially if it’s secret? If the people themselves don’t know they are on the list how are they to challenge it? And how well are the TSA and various agencies managed anyway?
The Department of Homeland Security has been a management nightmare from the beginning. As early as 2008 Congress found that the department oversaw at least $15 billion in failed contracts for projects ranging from airport baggage screening to Hurricane Katrina relief efforts. That amounted to about 1/3 of the department’s spending at the time. See for instance, this article in the Washington Post back in 2008.
Then there are DHS “fusion centers”, which are supposed to be terrorism prevention and response centers, many created jointly by DHS and the Department of Justice (DOJ). These centers gather information from government sources and partners in the private sector. The fusion centers arbitrarily hoover up vast quantities of information and virtually anyone can wind up on a list of suspicious people because someone decided to fill in a tip sheet.
To get how asinine all this is, it is only necessary to reflect on how a DHS fusion center put an ACLU communication on its terrorism map. Yes, you read that correctly. It turns out that the Tennessee ACLU sent out a letter warning public schools not to celebrate Christmas as a religious holiday. In his report “We are All Terrorists Now”, David Rittgers of the CATO Institute recounts how as result, the ACLU earned a place on the Tennessee fusion center’s map of “terrorism events and other suspicious activity”. And this is not an isolated example of bureaucratic idiocy. (Please note that this discussion only scratches the surface. There is a wide range of legal issues that comes to the fore over this type of information collection and policing, some of which are discussed in a forum sponsored by the CATO Institute which can be seen at this link.)
Which brings us to where we are today. A group of progressive legislators took over the floor grinding business to a halt for the express purpose of seeking a vote on legislation they knew would fail, and which had already failed in the Senate on four separate votes. The halt continued for a couple of days until the Speaker adjourned the House. The proposed legislation would secretly strip citizens of fundamental rights with little hope of successful appeal. Moreover the legislation would empower the DHS bureaucracy—widely understood to be a case study in incompetence—to eviscerate those rights through the back door by simply putting a name on a list. In secrecy no less.
So perhaps progressives who are so enamored of the privacy rights found in the penumbras and emanations discovered in Griswold v. Connecticut will re-consider their attempt to eviscerate express fundamental rights and act like a caucus instead of a mob. But don’t count on it.