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No-fly list ruling has implications for current and proposed gun denials

Will current gun denials and "no guns terror watch list" proposals be modified to reflect court-mandated "no fly list" streamlining?
Will current gun denials and "no guns terror watch list" proposals be modified to reflect court-mandated "no fly list" streamlining?
Photo by Alex Wong/Getty Images

Travelers on the government’s no-fly list will better be able to appeal and have their names cleared, the Associated Press reported Tuesday, after the Obama administration pledged to implement process changes following a U.S. District Court ruling in Oregon.

Finding for the plaintiffs in a lawsuit filed by the American Civil Liberties Union on behalf of 13 Muslims, Judge Anna Brown declared the no-fly list “violates their constitutional rights because it gives them no meaningful way to contest that decision.”

"The court concludes international travel is not a mere convenience or luxury in this modern world,” Brown ruled. “Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society."

Another recognized liberty, also deemed sacred by gun rights advocates, is the right to keep and bear arms, and while there is an appeal process guided by National Instant Check System regulations and the Brady Act, the government takes its time processing delays.

“A delayed transaction will be purged from the NICS within 88 days from creation,” the Federral Bureau of investigation advises in its NICS Appeal Brochure. "The NICS Section requires that you wait 30 days from the date initiating the check prior to filing an appeal on a delay to give the NICS Section’s staff time to complete the initial transaction. If your original background check is completed, the Federal Firearm Licensee will be notified with a final status.”

Much can happen in that time, and as Martin Luther king observed in his Letter from a Birmingham Jail, "[J]ustice too long delayed is justice denied."

“The government's policy is never to confirm or deny that a person actually is on the no-fly list, citing national security concerns,” the AP report informs, corroborating another concern raised in response to citizen disarmament advocates like billionaire Michael Bloomberg demanding “congressional efforts to close a ‘terror gap; in the nation's gun laws, which currently allow persons on a federal terrorist watch list to buy guns and explosives legally in the United States.”

"Due to the secret nature of the watch lists, the Attorney General may determine that simply tipping off the person that they are on a terror watch list may compromise national security, thus rendering the notice clause illusory,” Aaron Titus, Privacy Director of the Liberty Coalition noted in testimony before the Senate Committee on Homeland Security and Government Affairs. Aside from giving suspects a good indication they’ve been “made” by law enforcement, those unfairly caught in the net and finding their rights denied without due process can find themselves in a dilemma they can’t resolve.

"The citizen may ask why he or she was denied, but the Attorney General is not required to answer or correct erroneous information within the system,” Titus explained. “Consequently, the citizen will be unable mount a meaningful appeal to the Attorney General's decision.

"A citizen will lose his appeal if the Attorney General can prove, by a preponderance of the evidence, not that the individual poses a risk, or that the person is a terrorist, or even that the person is under investigation; rather, the Attorney General must only demonstrate that the person has been placed on a terror watch list,” Titus continued.

“Once that has been proven, a process which affords the citizen no due process, no right to appeal, nor guarantees any reasonable notice or information to the actual fact that the citizen is on a terror watch list, the appeal is over and the citizen loses his Second Amendment Right to Bear Arms," Titus elaborated. "The individual will not have a chance to introduce evidence of mistaken identity, abuse of Executive discretion or mount any other meaningful defense."

It is unclear at this writing if demands for a no-guns list will be modified to provide the same streamlined appeals process the administration has promised prospective air travelers, and if that will have any effect on the current gun delay appeal process or on organized efforts opposing the enactment of new “terror”-based laws.

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