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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Dan

'..its the ACLU's job to safeguard our civil liberties." I agree. That's what they do.

Anonymous

"Confrontation" is the key - those blacklisted must be confronted to clarify or contradict the evidence or lack thereof. It also places a healthy risk of perjury on the accusers testifying under oath or in a police report, etc.

Many, if not most, of the abuses may NOT be confrontational (ex: being turned down for buying a gun), but the illegal searches of one's home, computer or illegal cell phone tracking might be done without confronting the blacklistee.

Non-confrontational blacklisting devolves into defamation, employment tampering (ex: CoinTelPro) and police harassment - without charge, without trial and without a guilty verdict. This type of government corruption also robs innocent citizens of "legal standing" in court to challenge the illegal government program and tactics.

This non-confrontational version also creates a very profitable "blacklisting industry" for police departments, state Fusion Centers and private contractors - making it harder to reform since everyone is riding this "gravy train" that violates their oath of office. This type of blacklisting harm is almost impossible to repair - blacklisting victims never receive an apology to repair the employment tampering and defamation. The government officials involved frankly don't seem to understand the harm they do and have no integrity to fix the situation they created from non-confrontational blacklisting.

Blacklisting is very harmful to those on these lists, so their accusers and defamers should have some legal risk also. It is the most evil program conducted by federal, state and local officials - worse than false imprisonent.

Anonymous

Agree .. does anyone remember the "Joe McCarthy" era .. seems as if Hollywood has conveniently forgotten .. Patriot Act has brought it back in spades and it is being compounded by these "lists" .. eerily familiar

Joe in N Calif

My GAWD! The ACLU actually being in favor of due process where firearms are concerned!

Is this really the same ACLU that says the 2nd Amendment isn't about the rights of the people but the power of the State?

Satan must be selling ice skates if the ACLU is against any gun control bill.

Anonymous

It's possible, if not probable, that the vast majority on those on so-called terror watchlists are MORE law-abiding than the government officials blacklisting them. The number is probably about a 90% error rate based on publicly available news reporting and civil liberties organizations.

So should the officials themselves be placed on lists?

Anonymous

With all this spying , hacking and hurting of humans by other humans I am losing hope. The human condition is just as its ways been .

Anonymous

Seems it's considered better to have 9 instances of mass murders (let's say 10 plus each time so 90 people killed thus having all their rights removed) than to have one person wrongly denied their legal right to own a gun that can fire 60 bullets in a minute (after all anybody [who was blind and totally uncoordinated] could need that many shots to get a pig they were hunting)

Anonymous

If that's the price of freedom then so be it or take steps to protect yourself. Are we not a country that would rather have a guilty man go free than an innocent man imprisoned. We take our rights for granted everyday but there will never be a way to guarantee our rights 100% and our safety 100%. Ben Franklin said it best those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety".

nk-ick

I agree that the watchlist is an iffy way to approach gun control. However, unless you and I and the rest of us in America decide individually and collectively and culturally that the death of children (by children), the death of churchgoers by young adults, the death of men and women by their peers at work or school, and other shooting events, is an appropriate cost for the current gun freedom, we need something else.

I, for one, do not think that's an acceptable trade, all this gun freedom for all this death. I think we can find a better balance between this constitutional right and this unacceptable death. I think we can find limits and safety barriers that work.

You (ACLU) say
" 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."

SO... What policy WOULD you, the ACLU, support? Where is this on your website? Your letter does not address this. Step up your game, ACLU. YOU can do more.

Anonymous

Yes!

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