Arbitrary 'no-fly' list may soon become a 'no-guns' list

May 18, 11:07 AMCivil Liberties ExaminerJ.D. Tuccille

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Rep. Carolyn McCarthy must know the no-fly list is
a due process nightmare. So why does she want to
use it to deny gun rights? (Official portrait)

The federal government's "no-fly" list of people forbidden to board commercial airliners has been the target of much-deserved criticism. Court documents reveal that the grounds for placing people on the list are "not hard and fast rules" but "necessarily subjective" judgments exercised by squabbling agencies. Getting off the list requires navigating an opaque and reluctantly implemented appeals process or a lawsuit. Even the size of the no-fly list is uncertain, with the Transportation Security Administration insisting that high estimates result from people being denied boarding because they've been confused with names on the list (a distinction without a difference). And now enrollment on that bureaucratic nightmare is poised to become grounds for denying Americans the ability to purchase firearms.

What could possibly go wrong with that scheme?

Would-be gun-owners may be introduced to the arbitrary justice of the no-fly list courtesy of H.R. 2401, the "No Fly, No Buy Act of 2009." Introduced last week by Rep. Carolyn McCarthy, the announced intention of the legislation is "[t]o increase public safety and reduce the threat to domestic security by including persons who may be prevented from boarding an aircraft in the National Instant Criminal Background Check System, and for other purposes."

As Rep. McCarthy puts it in a press release:

The No Fly, No Buy Act uses existing TSA data to update the NICS system with the names of known or suspected terrorists to disqualify them from passing the Brady Background Check.

Rep. McCarthy was elected to Congress on a wave of sympathy over the murder of her husband and injury of her son during a mass murder on the Long Island Railroad. She has dedicated her career to a seemingly obsessive effort to restrict legal access to firearms by civilians (but not by government officials). Her sponsorship of H.R. 2401 adds fuel to charges that McCarthy's hostility to private firearms ownership overrides any concerns she might have about due process or simple justice.

To illustrate just how arbitrary and dangerous inclusion on the no-fly list can be, it's worth looking at revelations from just last fall that Maryland state troopers monitored antiwar protesters and other political activists and included their names on terrorist watch lists. That means people exercising fundamental First Amendment rights were listed as potential terrorists and put in the position of being denied the right to travel by air, among other serious consequences.

With regards to the creation of the list, former FBI agent Jack Cloonan told 60 Minutes:

"I know in our particular case they basically did a massive data dump and said 'Ok anybody that’s got a nexus to terrorism, let’s make sure they get on the list. And once that train left the station, or once that bullet went down range. There was no calling it back. And that is where we are."

The poor quality of the no-fly list, the arbitrary nature of the inclusion of names on the list and its impact on innocent people is no secret, having been covered by mainstream media and litigated in the courts for the past half decade plus. Rep. Carolyn McCarthy and co-sponsor Rep. Steve Israel, both of New York, can't claim that they don't know that the no-fly list is a civil liberties nightmare that serves only to seriously inconvenience people, violate rights and generate headline-grabbing news stories.

So it's fair to conclude that Rep. McCarthy has no problem with the arbitrary denial of individual rights, so long as such denial furthers her crusade against gun ownership.

email J.D.: civilliberties (at) tuccille.com