The Use of Error-Prone and Unfair Watchlists Is Not the Way to Regulate Guns in America

UPDATE: On June 22nd, the ACLU sent this letter to the Senate opposing Sen. Collins’ (R-Maine) proposed legislation. We had hoped that the Collins Amendment would correct the problems with the earlier Cornyn and Feinstein amendments, but as we describe in the letter, the Collins Amendment would instead cause even more serious problems.  

In the wake of the attack on LGBTQ Americans in Orlando, gun control is again at the forefront of the national conversation.  It is also the subject of proposed legislation in Congress.  We at the ACLU, like many other Americans, are appalled by the Orlando tragedy.  We have deep concerns, however, about legislative efforts to regulate the use of guns by relying on our nation’s error-prone and unfair watchlisting system. 

That’s why we sent a letter today to the Senate, opposing legislation from Sen. Cornyn (R-Texas), which uses the watchlisting system as a predicate for gun regulation, and also opposing a proposal by Sen. Feinstein (D-Calif.), which does not rely on mere presence on watchlists, but nevertheless raises issues of fundamental fairness.

The letter explained to senators the ACLU’s position on gun control:

We believe that the right to own and use guns is not absolute or free from government regulation since firearms are inherently dangerous instrumentalities and their use, unlike other activities protected by the Bill of Rights, can inflict serious bodily injury or death.  Therefore, firearms are subject to reasonable regulation in the interests of public safety, crime prevention, maintaining the peace, environmental protection, and public health.  At the same time, regulation of firearms and individual gun ownership or use must be consistent with civil liberties principles, such as due process, equal protection, freedom from unlawful searches, and privacy.

And we explained why we oppose Sen. Cornyn’s legislation, which uses the watchlist system as a starting point for regulating guns. It may sound appealing to regulate firearms by using the government’s blacklisting system for what it calls “known or suspected terrorists,” but we have long experience analyzing the myriad problems with that system, and based on what we know, it needs major overhaul. As we told the senators:

Our nation’s watchlisting system is error-prone and unreliable because it uses vague and overbroad criteria and secret evidence to place individuals on blacklists without a meaningful process to correct government error and clear their names. 

That’s why we have argued that if the government chooses to blacklist people, the standards it uses must be appropriately narrow, the information it relies on must be accurate and credible, and its use of watchlists must be consistent with the presumption of innocence and the right to due process. This is not what the government is doing, though. Instead, as we explained to the Senate using the No Fly List as an example:

The government contends that it can place Americans on the No Fly List who have never been charged let alone convicted of a crime, on the basis of prediction that they nevertheless pose a threat (which is undefined) of conduct that the government concedes “may or may not occur.” Criteria like these guarantee a high risk of error and it is imperative that the watchlisting system include due process safeguards—which it does not. In the context of the No Fly List, for example, the government refuses to provide even Americans who know they are on the List with the full reasons for the placement, the basis for those reasons, and a hearing before a neutral decision-maker. 

It is unsurprising that a system like this is not just bloated, but applied in an arbitrary and discriminatory manner.

By relying on the broken watchlist system, Sen. Cornyn’s proposal would further entrench it. Sen. Feinstein’s gun control proposal, on the other hand, has moved away from a previous version that expressly relied on watchlisting standards. Her new proposal does not rely on the mere presence of an individual on a watchlist as a basis for denial of a firearm permit.  Still, her new proposal uses vague and overbroad criteria and does not contain necessary due process protections. It also includes a new notification requirement that could result in a “watchlist” that is even broader than any that currently exists — so broad that it would include even people long ago cleared of any wrongdoing by law enforcement.

You should read the full letter for yourself.  And then we ask you to call your senators to oppose these proposals. Congress can pass effective gun control laws without relying on unfair and discriminatory watchlists or failing to provide meaningful due process.  

View comments (113)
Read the Terms of Use

Anonymous

Except this will not stop mass shootings, you fucking shitheel. It will give the pathetic excuse for the left in this country to ignore mass shootings and just increase terror watch lists that do nothing but violate civil rights. It will also give these "moderate democrats" as well as authoritarian republicans excuses to invade and bomb more countries in the name of national security.

We absolutely could have comprehensive gun control without going through this nonsense but people like you insist that we cater to republican stupidity.

Anonymous

"The Use of Error-Prone and Unfair Watchlists Is Not the Way to Regulate Guns in America" -------but it's a way to regulate terrorists? You idiots never cease to amaze me. Don't discriminate against naturalized citizens who scream mass-murder capabilities- just those trying to save their lives from religious persecution, starvation, and above all death; from those who want to be productive members of society. Non Violent convicted felons of our country can not have guns, but it's ok for someone with one or more aggravated/domestic violent charges (misdemeanors) can? And those married to non violent felons can not have a weapon because of their past mistakes so the wife is being punished for a crime she didn't commit. Which means the household is unarmed and thus a target.

Anonymous

Letss remove civil rights to keep us safe. Seems legit...

I'm not against gun control, but within reason. People's actions lead to murder not the instruments.

Cars kill more people than guns. The can also arguably kill more people in any crowd.

Anonymous

Tired of individuals and organizations that offer no for an answer without providing a solution

Anonymous

So you would rather have "solutions" which remove rights instead? The best part, is you yourself in your post did the same thing! Where is your solution? You just said no to no solutions and then don't provide one lol!

Anonymous

Not every problem has an adequate solution. Life is imperfect and utopia is not possible in this world. You could probably prevent deaths on ski slopes by requiring that all trees be bubble-wrapped...but that's not realistic. I am unwilling to have 330 million Americans forego their rights in the hope that one incident somewhere, *might* be prevented.

Anonymous

"No" to a bad move is a positive step.

Geoff Sebesta

The ACLU is not in the business of offering solutions to your problems. They are in the business of protecting American civil liberties.

They're doing a very, very good job.

My advice is to try to come up with solutions that don't violate due process. Then you'll find the ACLU much less involved.

Khalil Spencer

As a longtime ACLU member, I already called my two Dem senators, Tom Udall and Martin Heinrich, and explicitly mentioned the ACLU criticisms. What do I get back? Crickets.....

Anonymous

Yea, New Mexico, land of manana.

Pages

Stay Informed