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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Joe Blunt

You fail to see the forest for the trees.

Terror watchlist measures are not an effective means of gun control. Yet the debate to establish any true gun control is shut down because of existing balance of power.

This year's election offers some hope of changing that balance and opening the process, and Dems need an easy '3rd grade' argument that illustrates the entrenched GOP opposition to anything rational. Today ACLU inserts itself on the existing issues in the watchlist and thereby gives a strong argument for the GOP to justify why they could let those on the watchlist receive a firearm.

This letter gives ammunition to the GOP opposition in campaign debates. It gives them a rational excuse for opposing even though we all know they have no inclination to fix the existing watchlist system. (They would certainly be invested in fixing it if upstanding citizens were ensnared by it and wanted back their 2A rights)

You have effectively castrated an argument that grade schoolers could understand and so the round robin of no gun control will continue. You are idiots and ridiculous today with seemingly zero understanding of these politics. I will message you with derision again around the time of the next mass shooting. IDIOTS!

JB

Anonymous

Do you not understand due process? Are you ok with being put on a list that takes away your 1st Amendment right or any other Constitutional right without due process? How about when you go to vote in November you find out you've lost that Constitutional right without explanation or due process. Are you ok with that? I bet you aren't. You need to look in the mirror to see who the real IDIOT is!

Wobbly

Except that the specific bill dealing with the watch list was proposed by a and pushed by Republicans. The Dems used the no fly list. Both are bad and this doesn't play into the hands of the GOP but people, and their freedom from arbitrary and prejudicial treatment by the government

Bill Everman

Will you "message [the ACLU] with derision again" even when it turns out that none of the proposed measures would have stopped that next mass shooting that you're apparently looking forward to in hopes that it will prove your point?

Anonymous

"You have effectively castrated an argument that grade schoolers could understand"

My grade schooler is smart enough to understand the need for due process and to avoid giving government too much power.

Nick

Your complaint is that the ACLU is against legislation that would only make sense to someone with a third grade education?

Anonymousjeff

You are 100% wrong, Republicans know if they pass this bill they will be violating the Due Process Clause of the Constitution and this Bill would be tied up the Courts for generations, effectively stopping anymore Gun Bill that might actually work from being passed. You can not arbitrarily take away someones Civil Rights unless it's proven they are in violation by adjudication.

Bert Difig

Ok JB, I'm a bit confused.

Lets simplify this argument; as you demand.

Everybody on the no fly list is a terrorist basically; and cannot be trusted.
One of the top names in this proposal is Rep Lewis.
Rep Lewis was on the no fly list for over a year.

So we need our rights restricted by someone who is probably a terrorist and certainly cannot be trusted.
If that's your idea of an "easy 3rd grade argument" I think you still missed your target.

Maybe oversimplifying matters, conflating the watch list and no fly list; and assuming guilt of anyone on either list isn't going to work out even with the simple ones... Because what I typed wasn't complicated.
And I bet a 3rd grader can see why it seems stupid and wrong.

Jane Blunt

100% Agree. START. SOMEWHERE. You have to start by taking a stand where the Republicans have no choice but to agree:
Terrrrrrist = A guy who we shouldn't give guns to, or Terrrrrrists Win
No Fly List = List of Terrrrrists
If No Fly List = List of Terrrrrrists, then no guns.
Does that mean that the No Fly List is accurate? Hell no. So we'll work on that. But can we start at a place where even these gun nuts agree? PLEASE?
Fistbump to you, JB.

~Jane

Anonymous

NO gun control will stop hate, criminals, or the insane, this is what we actually WANT to control. But its fact that the places with the most 'gun control' have the most violent crime.
In a FREE society the most you can hope for is the freedom to try to protect your self & family.
And even when people have background checks, training, and fingerprinted, they still want laws to regulate these law abiding people that have jumped thru hoops to get a concealed carry license, and ban them in "No Gun Zones". And this slaughter is what we end up with.

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