“We have to do something.”
The favorite refrain of the person who doesn’t know what that something is, but is convinced we have to do it. It is the most oft repeated phrase you hear after some kind of big, important tragedy. We want to live in a world where nothing bad happens, so when something bad does occur, we tell ourselves that “something must change.”
The problem, of course, is that public policy is complicated, the world is a largely terrible place, and what we do to fix a problem we all agree upon oftentimes does nothing to solve it, while creating a whole host of horrendously bad side effects.
So, it was inevitable after the shooting in Orlando that the calls to “do something” would grow in number, and our dutiful leaders in Washington would strive to “do something” to make us all feel like “something was done.”
Which is exactly why we get meaningless, ultimately pointless policy solutions from lawmakers. Achieving a real substantive and meaningful change is far less important than convincing the voters that you “did something.”
It doesn’t have to be “something” that would have actually contributed to stopping the tragedy we just lived through, mind you. In fact, it almost never would have. All that matters is that it is “something.”
And so we now hear the Washingtonian rhetoric circulating around “keeping terrorists from buying guns” by banning the sale of weapons to people on the U.S. government’s no-fly list.
First, a primer. There are actually several lists that people confuse here. There is the “no fly” list, of course, which contains about 81,000 people and 1,000 Americans. Then there is the “selectee” list, which allows somebody to fly, but triggers an intense and incredibly high level of security screening.
That is the list that Mikey Hicks, an eight-year-old boy, has been on basically since he was born, and has still not been able to get off. Somebody named Michael Hicks, apparently, once made the Department of Homeland Security nervous, and as a result Mikey was subject to full-body pat downs when he was a two-year-old.
Democrats want to ban anyone on any of these lists from purchasing a firearm. Sen. Susan Collins, who has sponsored a compromise bill, has, to her credit, attempted to restrict the ban more tightly.
But any “list ban” remains a terrible idea, no matter how tightly it is restricted. If any such legislation passed, it would make no difference in gun violence in the United States.
It certainly would not have stopped the Orlando shooter, who was not on the no fly list, passed two separate background checks, and had a Florida license to carry a firearm. Nevermind having survived a deep FBI investigation.
Under those circumstances, why does anyone think “increased background checks” would do anything? If the FBI lets somebody like this off the hook after a full scale investigation, what exactly would a background check have done? But I digress.
The problem with legislation like this is far more than simply being a cosmetic solution that won’t fix the identified problem — in this case, mass shootings. It has a deeper flaw relating to due process that should send a chill up your spine.
Why? The legislation eliminates a constitutionally protected right without due process, then essentially forces a citizen to prove they are not a criminal and are entitled to that protected right.
The fact that the ACLU and the NRA are apparently both on the same side against the no-fly list being used as a means to remove your right to a firearm should be your first clue that this is a dangerous idea.
Earlier this week, ACLU National Security Project director Hina Shamsi blasted the idea, saying, “The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error.”
There is talk now of including a provision for speedy review if you are flagged. Don’t count me among the people who are optimistic about the government’s ability or interest in speed, however. People have erroneously been on the no fly and watch lists for years with no recourse.
But more fundamentally, it flips the standard American presumption of innocence and essentially puts the burden on a U.S. citizen to, in the words of Sen. Dianne Feinstein, “prove that they are innocent” in order to enjoy a constitutionally protected right.
The implications are frightening. And maybe you think those frightening implications are less frightening because you don’t like guns. Fine, but imagine this being your First Amendment right under debate, then ask yourself if it is a big deal.