No fly list gun ban not cleared for takeoff

Airport security lines at San Francisco International Airport in San Francisco, Tuesday, Nov. 24, 2009 (AP Photo/Paul Sakuma)

Today the Washington Post' editorial board chortled that New York City Mayor Michael Bloomberg's idea that banning "any one on the country's 'no fly' list from being allowed to purchase a gun . . . is a no-brainer."   The Post confidently added that "[t]he law currently bars convicted felons and immigrants who are in this country illegally, among others, from purchasing guns, but no mention is made of a suspected terrorist."  

The no-fly list

The way the so called "no-fly" list operates is of course a state secret - but basically it operates like this:  Government bureaucrats put names onto this ever growing list, and if your name is on the list, or if your name sounds like it is on the list, then you are delayed at airports for additional screening, but not necessarily denied boarding.  "Not one terrorist" has ever been caught by the no fly list, writes international security expert Bruce Schneier. 

Ironically, frequent flier and former Senator Ted Kennedy (D - Mass.), the father of airline de-regulation, was often delayed by operation of the no fly list, and had trouble getting his name cleared.  Even commercial airline pilots' names can show up on this list.  The American Civil Liberties Union

"believes that the entire system of watch lists is unconstitutional, because it treats people as guilty without a trial, and deprives them of their freedoms without due process. The system will not make us safer, because it is an inherently inaccurate and ineffective security method."

Revoking the right to bear arms

Despite the questionable constitutionality of the no fly list's interference with the un-enumerated constitutional right to travel, the Post's editors seem eager to double down on the idea to restrict the enumerated right to keep and bear arms. Subsequent to the Supreme Court's 2008 decision in District of Columbia v. Heller, declaring the right to keep and bear arms a fundamental individual right, federal courts in New York and Washington have held that denying the right to bear arms based only upon mere arrest is unconstitutional. 

At issue in those cases was the constitutionality of the 2006 Adam Walsh Child Protection and Safety Act which prohibited persons arrested for child pornography from possessing guns.  A federal judge in New York said that it is unconstitutional for an

"accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community." 

United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008).  Echoed another federal judge, this time in Washington: 

"the Supreme Court held that the Second Amendment created an individual right to possess firearms. If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but because a person was merely charged."

United States v. Kennedy, 593 F. Supp. 2d 1221 (W.D. Wash. 2008).

Not cleared for takeoff

Mayor Bloomberg's "future-crime" vision of American gun control is one where a United States citizen might walk into a gun store to buy a new gun through a background check, and merely because her name, or some close variant of her name, was added by a federal bureaucrat to the no-fly list, the background check would come back as if she were a convicted felon and barred from owning guns.  It is also at least foreseeable that under this scheme, well meaning TSA agents might confiscate guns from the checked baggage of airport travelers flagged for additional scrutiny by the no-fly list.

This vision for America is not cleared for take off at any speed say gun rights organizers who contend that gun control laws in practice do not prevent criminals from obtaining guns via black markets.   Last month the UK Daily Mail reported on the sharply rising gun use by criminals on the island of Great Britain which has draconian gun laws even by European standards and essentially banned private handgun ownership over a decade ago. Alan Gottlieb, founder of the Second Amendment Foundation, labels Bloomberg's no fly list gun ban as

"just another attempt to disenfranchise at least a million Americans who are obviously not terrorists from exercising their constitutional rights.  No one knows how you get on the no fly list and no one knows how to get off it."