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.  

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Anonymous

What is the issue with the Cornryn amendment? The government has to defend their decision to watchlist the person in open court or the denial is overturned.

Anonymous

Because you are stripped of the right before and during this process. Imagine going to vote, but you can't because you are on a watchlist, but it is ok with you because 2-3 years later after this plays out in court, you can get your right back...Only to be readded to the list during the next voting cycle.

Objectivist71

Maybe this will wake you up to the truth: Gun control is not about guns, it is about control. Why do you think that Dianne Feinstein, Hillary Clinton and others mislead everyone about how many people will be affected? It is because the bloated nature of the terror watch list is a feature, not a bug. The victims of the Orlando Pulse massacre were exercising their First Amendment right to assembly, and only exercising their Second Amendment rights would have reduced the body count.

Wake up and support the whole Bill of Rights, or I will never support you.

Voluntaryist

Agreed!

Anonymous

Yes! And at the very least, it would have been good had the security in the room been using their Second Amendment rights!!

Anonymous

Who puts people on the no fly list and what is the criteria? Is it a judgment, feeling or hunch? If it is okay to restrict gun rights, can you now refuse to let that person write a letter to the editor or worship as they see fit? Could they be prohibited for running for political office or sit on a government advisory board? Can the government be trusted to quickly mitigate their mistake or error? Is their data to support government competence in adjudicating wrongful determinations of...what would you call it, guilt, suspicion, bad feeling? Could someone comment?

Anonymous

RIGHT ON!!!

Wobbly

I am not in full support of banning certain types of rifles or assault weapons, but you can't logically say that smaller capacities would have resulted in fewer deaths. Even if he had lots of bullets, every time a shooter reloads is time for someone else to stop him.

That's why mass shooters often go for such large magazine guns

Khal Spencer

ACLU looks at the narrow issue of whether the use of the terror watch list is acceptable as gun control given that the TWL has long lacked any semblance of due process. The ACLU is spot on in its criticism. As we (I am a member and Shamsi and Anders certainly speak for me on this topic) say here and in last december's post, these lists should NOT be used for law enforcement or lawmaking functions until the law that defines how they are set up and used passes constitutional muster.

Joe Blunt says that results in the ACLU carrying water for the GOP? I disagree. Its not the job of the ACLU to carry water for Dems, the GOP, or gun control. its the ACLU's job to safeguard our civil liberties. That is especially true when government reacts in a knee jerk fashion to a crisis and introduces bad law. PATRIOT is one of the worst examples. No-fly is not far behind.

Joe in N Calif

"Its not the job of the ACLU to carry water for Dems, the GOP, or gun control. its the ACLU's job to safeguard our civil liberties. That is especially true when government reacts in a knee jerk fashion to a crisis and introduces bad law. "

Unfortunately, the ACLU for decades now has been in lock step with the gun banners. I've been in ACLU offices that had all 9 articles of the Bill of Rights on the wall. You got it, the 2nd was missing. I don't recall the ACLU taking a pro-civil rights stance on the 2nd, taking up any cases to defend a individual when his 2nd amendment civil rights were taken from or denied to him. Now, to their defense, it might not have made the national news if it ever happened,but they are not shown as supporting Heller, McDonald, Peruta, Silveira, Nordyke, etc.

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