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

Can't we walk and chew gum at the same time? Cross checking this list would be a place to start I think. I say that as a citizen that owns several firearms and supports the 2nd amendment. I say that as a citizen who is willing to risk some minuscule chance of being falsely placed on this list in order to hopefully keep firearms out of the hands of known individuals that are a risk to the general public. Why can't the ACLU advocate for addressing the flaws of this list within this possible legislation? This seems to be an irresponsible position on this issue in my humble opinion.

I also think that as gun owners we need to face the fact that vigorously pursuing responsible safety measures will go a long way toward absolving from this argument the vast majority of responsible gun owning citizens. That is the means by which we can end this debate once and for all.

Greg De Marco

Ban assault weapons. We need to end the fascist capitalism that allows us to favor profits for gun makers over public safety.

Anonymous

FYI any weapon can be used for assualt.

Mr. T. Kennedy ...

I came to your site to renew my membership, but I am not going to now, after I read your article about guns. I thought maybe I had accidentally gone to NRA web site. Shame on you, ACLU. Shame on you. I won't renew again.

Anonymous

You won't be missed, you drunken mistress-drowning degenerate. I'd say "Go to hell" but you're still on the no-fly list, aren't you?

R

Thank you for being on the side of the people ACLU!

Anonymous

Senator Ted Kennedy had problems with the "No Fly List." An alias "T Kennedy" was on the list. Over several weeks Kennedy was denied boarding. Each time, his fame and credentials got him onto the plane.
"A Kennedy aide said the senator nearly missed a couple of flights because of the delays. After the first few incidents, his staff called the Transportation Security Administration, which maintains the no-fly list. But even after those discussions about getting his name removed, the senator was stopped again, according to Kennedy spokesman David Smith. Homeland Security Secretary Tom Ridge finally called to apologize about the mix-up, and the delays stopped in early April, Smith said."
Ask yourself, if you or I were in this situation, would you have a spokesman or get Homeland Security to apologize?

Rosaleee

So we need to limit the sale of AR-15s to military only. That way no ethnic or racial group is singled out, and the watch list becomes irrelevant to the sale of these monster guns.

On they REAL civil rights issue re the terrorist watch list, we need to make it easier for people who are erroneously on it to correct the record, thus solving the problems people end up facing in far more important situations -- such as getting stalled at airports.

That would affect far more people and reduce civil rights violations caused by what is now a list impossible to correct.

Anonymous

The military doesn't buy AR15s, Rosalee. Millions of American citizens do. Maybe you should have some of your civil liberties confiscated, on the chance that someone else might do something harmful with theirs. Let's start with a simple ban on your possession of any means of high-speed internet access. After all, it's not mentioned anywhere in the Bill of Rights, and you don't NEED to go online. If it saves just one child from being exploited by online predators or bullies...

Anonymous

Having read your letter to the Senate in opposition to both proposed amendments, I have to first correct the ACLU that the amendments are about the purchase of firearms not a "firearms permit."

Secondly, it is blatantly clear the ACLU is biased in their analysis of the proposed amendments, as one can clearly see by the ordination of presenting their opposition to the amendments. It was the Democratic demands to bring the amendments to a vote, not the GOP; the failure to mention that the GOP amendment had a 72 hour limitation imposed on the Government or the firearm purchase may proceed; the Democratic amendment, by any reasonable analysis, placed an unreasonable due process burden on the firearm purchaser to assert their constitutional rights rather than on the Government in trying to take away constitutional rights.

Finally, until the ACLU can acknowledge "the right of the people to keep and bear arms, shall not be infringed" as stated in the 2nd amendment to the United States Constitution, is a fundamental right of every American citizen and is an unalienable right, I have nothing but contempt for their organization.

Thank you.

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