By Bryce Wachtell (PO ’21)
On February 14th, 2018, a 19-year-old entered Majory Stoneman Douglas High School in Parkland, Florida, where he had previously been a student before being expelled, to commit what is now the ninth most deadly mass shooting in U.S. history. Following the carnage, scores of students and teachers have spoken out and called on their representatives to take concrete action for firearm reform. In the days since the massacre, the gun control debate has picked up new and unprecedented steam.
Despite the circumstances of the shooting, a significant portion of the debate regards banning those on the terrorist watch list from being able to purchase firearms. The effectiveness of terrorist watch lists should be questioned, as in this instance, there would have been no way this 19-year-old to be on it. Rather, there should be calls for greater firearm controls to negate the loopholes of policy rooted in terrorist watch list regulations.
A common goal of gun-control advocates is legislation that bans those on terrorist watch lists, most specifically, the no-fly list, from purchasing firearms. Debate on the issue is heated, as it may potentially infringe on due process protections and the rights guaranteed by the second amendment.
The Counterterrorism Center is responsible for maintaining the Terrorist Identities Datamart Environment (TIDE), a running list of approximately one million people at any given point in time, which is added to by intelligence agencies. The much smaller and far more accurate no-fly list had about 47,000 names on it as of late 2014. A mere 800 of those on the no-fly list were U.S. citizens.
At face value, banning suspected terrorists from buying guns does not seem highly controversial. However, the Conservative pushback to these regulations emphasizes citizens’ rights to due process. The National Rifle Association’s official statement on the issue reads, “The NRA does not want terrorists or dangerous people to have firearms, any suggestion otherwise is offensive and wrong… The NRA’s only objective is to ensure that Americans who are wrongly on the list are afforded their constitutional right to due process.”
At its core, due process (established by the fifth and fourteenth amendments) serves as a protection against the arbitrary denial of rights. The NRA and those against no-fly gun control measures contend that the lists, controlled by unaccountable government officials and shrouded in secrecy, provide an indirect path to the arbitrary denial of citizens’ second amendment rights.
A redress process for those who wrongly find themselves on the list is in place, although the process is quite convoluted and lacks transparency. This may be intentional in part; an easily accessible terrorist watch list may erode its very effectiveness. In 2010, the ACLU, on behalf of thirteen plaintiffs, challenged the legitimacy of due process within the list’s redress program. Procedures for those seeking to inquire about or get off the list have been reformed, but not as far as the ACLU had hoped. Now, Latif, et al. v. Lynch, et al. is on appeal in the ninth circuit.
Any gun-control legislation addressing the issue of terrorist watch lists is bound to face several questions, on the hill and in the courts. For one, is erroneous placement on the terrorist watch list a violation of one’s right to due process? What standard must a constitutional redress program meet to grant citizens their right to due process? And would or could such a standard for redress harm the effectiveness of the list?
Four bills, two on both sides of the aisle, were introduced in the Senate following the Orlando shooting in 2016, in which Omar Mateen killed 49 people at Pulse Nightclub. At the time, it was the deadliest mass shooting in American history. These proposed bills tackled the issue via measures that varied slightly. All proposed bills were struck down due to fragmentation and disagreement. However, most congresspeople, despite surface-level disagreement, seem to take similar stands on the issue: ban those on the list from possessing weapons, but either improve the accuracy of the list or provide a better process to get off it.
For gun-control advocates, pushing for legislation that bans gun purchases for those on the no-fly list may just be a large red herring. Just 200 miles from Parkland, the Pulse shooting occurred. Mateen was on a terrorist watch list for a year, but was taken off in 2014 because of insubstantial evidence. In other words, had watch-list bans been in place in 2016, he still would not have been affected.
Indeed, a great number of those who commit mass shootings are seemingly unexceptional American citizens—the types who would not typically end up on such a list in the first place. Alternatively, they may be on the list for a short time, as in Mateen’s case, later being removed.
In the case of the recent Parkland shooting, Nikolas Cruz, despite a troubling online presence and numerous tips, was not on a list, either. In actuality, if politicians are serious about ending America’s unusual and tragic mass-shooting problem, an array of measures far more significant and controversial than watch-list bans should be discussed first.
