The American system of justice relies on core principles based on a fundamental understanding of natural law. First, the Constitution exists to restrain government from encroaching on the rights of its sovereign citizens. Second, each citizen retains those civil rights unless a jury of their peers convicts them of violating the law. Third, each citizen is entitled to due process and a presumption of innocence from the government until conviction.
In the wake of the Orlando shooting, the familiar rush to use the no-fly and terror watch lists as a bar to owning a firearm violates every single one of these principles.
The danger to constitutional republics from sudden crises comes from the very human impulse to restore order by any means necessary. In almost every instance, it results in the erosion of the balance between government power and personal liberty. In some instances, the intent becomes specific and limited for a period of time, such as Abraham Lincoln's suspension of habeas corpus during the Civil War. Most often, it comes as a result of a knee-jerk response to a tragedy or atrocity for which politicians feel they must offer sweeping action — even if the action bears little connection to the actual event.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Such is the case with the ISIS-inspired attack on an LGBTQ nightclub in Orlando and the deaths of 49 Americans, and the rerun of a gun-control proposal that flopped the first time because of its inherently dangerous qualities.
Hillary Clinton tried reviving this proposal on Monday, ironically after insisting at a rally in Ohio that "today is not a day for politics." The presumptive Democratic nominee then launched into a lengthy argument for gun control, which is one of the most charged discussions in politics. Clinton tried breathing new life into last year's Democratic proposals to keep people listed on the federal government's watch lists from purchasing firearms.
"If you're too dangerous to get on a plane," Clinton insisted, "you're too dangerous to buy a gun in America." Later, she also argued that a pending FBI investigation should deprive Americans of a constitutional right. "If the FBI is watching you for suspected terrorist links, you shouldn't be able to just go buy a gun with no questions asked," Clinton stated — and felt strongly enough about that point for her team to immortalize it in a tweet.
It's worth pointing out that Hillary Clinton herself is under investigation by the FBI. The federal law enforcement agency has been investigating her use of a secret and unauthorized email server and the transmission of highly classified information through it ever since last summer. If Clinton were held to the same public standard she demands, just a suspicion and an investigation would disqualify her from the office she now seeks. That, of course, would be unjust. She is entitled to a presumption of innocence. The same is true for all Americans.
The no-fly list doesn't even equate to an investigative status. Nor does it actually bar people from exercising a civil right; there is no constitutional right to fly on commercial airplanes. Most of the estimated 40,000 or so people on that list have no way of knowing of their status, and those who do have few if any ways to adjudicate their way off of it. They have no due-process mechanism to challenge the government's accusation and no presumption of innocence, points that led the ACLU to oppose the proposal the first time around.
The terror watch list makes the situation exponentially worse. It lists over a million people, once again without any effective mechanism to challenge that status. And Clinton wants to make that situation even worse. "If there had been a broader list that would have triggered the comprehensive background check required under Brady," she argued, "that might have put a big red flag in the way of [the Orlando gunman] purchasing the assault weapon plus the ammunition." And since it turns out that Mateen had been removed from watch lists in 2014, none of this would have prevented what happened in Orlando anyway.
In this proposal, Clinton and her allies call for an end to due process before denying citizens their constitutional right to bear arms. This is a far more fundamental issue than debating over which firearms to bar from private ownership; it strikes at the fundamental relationship between citizens and the government that exists to serve their liberty interests. Once those principles have been discarded for political expediency on the mere basis of official suspicion, no rights — whether natural or declared — will ever be safe again.
Even with all of that, one could see a need to make a temporary allowance in order to pursue victory over a common enemy. When Lincoln suspended habeas corpus, he did so in the narrow and limited timetable of a war he needed to win. America rationed goods, services, wages, and even liberty (through the draft) in World War II. The re-emergence of Clinton's gun-control proposal turns that precedent on its head.
A lack of will on the part of the U.S. allowed al Qaeda in Iraq to blossom once again as ISIS, and a lack of will keeps us from using all of our power to fulfill the mission President Barack Obama laid out nearly two years ago — to "degrade and ultimately destroy" the group. Its continued existence provides inspiration for radicalization within the West, including the U.S. As long as we allow ISIS to continue its existence, we will keep finding traitors amongst us to commit terrorist attacks.
The proper response to this terrorist attack is to destroy the terrorists where they live. Subjugating citizens to the whim of bureaucrats won't stop these attacks, but it will eventually destroy the fabric of American liberty.
Create an account with the same email registered to your subscription to unlock access.