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Gun Rights and Due Process Took a Beating Last Night

From Cato Insti­tute — Despite a ran­corous cam­paign sea­son, there is at least one belief that Don­ald Trump and Hillary Clin­ton share: Amer­i­cans have far too much lib­er­ty when it comes to firearms and due process.

Between Sec. Clinton’s res­ur­rec­tion of the failed pro­pos­al to ban peo­ple on ter­ror watch­lists from buy­ing guns and Mr. Trump’s advo­ca­cy for a nation­wide “stop and frisk” anti-gun cam­paign, gun rights and due process took a beat­ing last night.

No Fly, No Buy

Hillary Clin­ton:

[W]e final­ly need to pass a pro­hi­bi­tion on any­one who’s on the ter­ror­ist watch list from being able to buy a gun in our coun­try. If you’re too dan­ger­ous to fly, you are too dan­ger­ous to buy a gun.

Don­ald Trump:

First of all, I agree, and a lot of peo­ple even with­in my own par­ty want to give cer­tain rights to peo­ple on watch lists and no- fly lists. I agree with you. When a per­son is on a watch list or a no-fly list, and I have the endorse­ment of the NRA, which I’m very proud of.

Pre­vent­ing peo­ple on the ter­ror watch­lists from buy­ing guns has some intu­itive appeal, and “our oppo­nents want ter­ror­ists to buy guns” is a whop­per of a sound bite. But any cur­so­ry exam­i­na­tion of the watch­list­ing process reveals the defi­cien­cy in this pro­pos­al.

First and fore­most, there is a vast chasm between “ter­ror­ist” and “per­son on a ter­ror watch­list,” and due process exists pre­cise­ly to pre­vent that chasm from swal­low­ing our lib­er­ty whole.

Peo­ple, pre­dom­i­nant­ly mem­bers of our Arab, South Asian, and Mus­lim com­mu­ni­ties, are added to the ter­ror watch­lists with­out so much as a notice. They aren’t enti­tled to a hear­ing, they aren’t allowed to see the evi­dence against them, they aren’t allowed to chal­lenge wit­ness­es or ques­tion the gov­ern­ment agent respon­si­ble for nom­i­nat­ing them to the list. Even if a watch­list­ed indi­vid­ual man­ages to clear his/her name, it can still take years to be removed from the list. The process is so rife with errors that peo­ple such as the late Sen­a­tor Ted Kennedy and sit­ting Con­gress­man John Lewis (D-GA) have end­ed up on the list. I’ve pre­vi­ous­ly writ­ten about this issue here and here.

In the eyes of No Fly, No Buy advo­cates, the lack of process pro­tec­tions is a fea­ture, not a bug. “Due process is what’s killing us,” lament­ed Sen­a­tor Joe Manchin (D-WV) while advo­cat­ing for the pol­i­cy. Sen­a­tor Chuck Schumer (D-NY) insist­ed that requir­ing prob­a­ble cause before peo­ple lost their gun rights would defeat the entire pur­pose, as “if the FBI had [enough] evi­dence [to estab­lish prob­a­ble cause] they would have arrest­ed the per­son to begin with.”

In oth­er words, the process is inten­tion­al­ly over­broad, and designed to sweep up peo­ple the gov­ern­ment knows it can­not act against.

Iron­i­cal­ly, it was Sec. Clin­ton her­self who last night lament­ed that Amer­i­cans are per­haps too quick to “jump to con­clu­sions about peo­ple.” Jump­ing to con­clu­sions about peo­ple with­out so much as a charge or tri­al is exact­ly what “No Fly, No Buy” requires.

The pro­pos­al is so defi­cient that even orga­ni­za­tions such as the ACLU, not known for its zeal­ous defense of gun rights, have got­ten involved. Just last week I spoke on Capi­tol Hill about the dan­gers of No Fly, No Buy, along­side Chris Anders of the ACLU and Con­gress­woman Deb­bie Din­gell (D-MI) at an event host­ed by the Arab Amer­i­can Insti­tute.

As the broad coali­tion of oppo­nents empha­sizes, No Fly, No Buy is a fun­da­men­tal­ly defi­cient, dis­crim­i­na­to­ry, and uncon­stiu­tion­al pol­i­cy. That it still enjoys the sup­port of Sec. Clin­ton and Mr. Trump is cause for con­cern.

Nation­wide Stop and Frisk

Don­ald Trump, who received the endorse­ment of the Nation­al Rifle Asso­ci­a­tion, fur­ther posi­tioned him­self as a due process and gun rights antag­o­nist by repeat­ing his ear­li­er call for the impo­si­tion of a nation­wide stop and frisk pro­gram, with an eye toward con­fis­cat­ing firearms.

Con­trary to Mr. Trump’s denials, stop and frisk was indeed ruled uncon­sti­tu­tion­al by at least one fed­er­al court. That rul­ing is cor­rect. Stop and frisk, as prac­ticed in cities like New York and Chica­go, refers to police deten­tions and search­es of peo­ple with vir­tu­al­ly no indi­vid­ual sus­pi­cion of wrong­do­ing. Advo­cates of the pro­gram insist that the Supreme Court’s rul­ing in Ter­ry v. Ohio, allow­ing frisks where the police can artic­u­late rea­son­able sus­pi­cion of crim­i­nal behav­ior, sup­ports the prac­tice, but that’s a far cry from the stan­dard the NYPD used for years.

Police rou­tine­ly cit­ed “sus­pi­cious” behav­iors such as “fid­get­ing,” “chang­ing direc­tion,” “look­ing over his shoul­der,” and “furtive move­ments” to jus­ti­fy stops and search­es of inno­cent New York­ers. And the brunt of this pol­i­cy was dis­pro­por­tion­ate­ly borne by peo­ple of col­or (rough­ly half of the stops tar­get­ed black cit­i­zens, and rough­ly a third tar­get­ed His­pan­ic cit­i­zens, despite the fact that stops of white peo­ple were more like­ly to pro­duce con­tra­band).

Mr. Trump insist­ed last night that only “bad peo­ple” would risk hav­ing their guns tak­en or being harassed under a nation­wide enact­ment of the pro­gram, but the num­bers tell a dif­fer­ent tale. Under stop and frisk, New York­ers were stopped hun­dreds of thou­sands of times each year. Before the pro­gram was reformed in 2013, between 85% and 90% of those hun­dreds of thou­sands of stops uncov­ered no wrong­do­ing at all. In oth­er words, the vast major­i­ty of peo­ple who were detained and searched by the gov­ern­ment were not “bad peo­ple,” they were inno­cent New York­ers going about their day.

Inno­cent gun own­ers should not have to fear ran­dom, sus­p­cion­less search­es when they walk down the street. In addi­tion to the con­sti­tu­tion­al vio­la­tion, the poten­tial for unjus­ti­fied inter­ac­tions to need­less­ly esca­late into vio­lence should be on everyone’s mind as we con­tin­ue to grap­ple with the role of police in soci­ety.

Mr. Trump also played loose with the crime data regard­ing the effi­ca­cy of the pro­gram. As the NYPD itself points out, the decline in crime Mr. Trump attrib­uted to stop and frisk actu­al­ly began before the pro­gram was imple­ment­ed, and con­tin­ued after the pro­gram end­ed.

Nei­ther sus­pi­cion-free search­es of cit­i­zens nor process-free no-gun lists are viable solu­tions to what Sec. Clin­ton referred to as the “gun epi­dem­ic” in Amer­i­ca, and both poli­cies promise to vio­late the rights of thou­sands of inno­cent Amer­i­cans.

In short, last night’s debate was a fright­en­ing spec­ta­cle for Amer­i­cans con­cerned about the right to bear arms, the right to be free of unrea­son­able search­es, or the right to due process.

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ER1C ☠

ER1C ☠

Dedicated Second Amendment Advocate, At-Home Gunsmith, Designer, Blogger, Video Guy, Author, Business Owner & ReloadOne Member.

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