David R. Henderson  

Senator Flake's Version of Due Process

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I got a late start today and so, instead of watching an uninteresting show about the coming NFL draft on my favorite sports channel, ESPN, I watched the CBS morning show. Big mistake. I hadn't watched it in decades and I was quickly reminded why.

The interviewers were questioning lame-duck Arizona Senator Jeff Flake about gun control. They prefaced by showing a scary clip in which President Trump said that government authorities should be able to confiscate guns from people with mental health problems and do due process afterwards. They asked Flake what he thought of this. He said this was not a good idea because due process should precede confiscation.

Good, I though, Flake knows what due process is.

But then he went on to say that people on the federal government's no-fly list should not be allowed to have guns.

There are two possibilities here: (1) either Flake was lying when he said he wanted due process before guns are confiscated or (2) he has no idea how the no-fly list is compiled.

There is literally no due process in the normal sense in compiling the no-fly list. You may not even find out you're on it until you show up at the airport, when you question authorities about how you got on it, they often can't or won't tell you, and when you try to undertake proceedings to get off the no-fly list, it's not as if you go to court and can do discovery on the information the government claims to have that put you there. The ACLU has laid out some of the problems here.

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COMMENTS (9 to date)
Dylan writes:

I saw the same thing this morning and had similar thoughts as you. Was more surprised, because as far as I remembered Jeff Flake had been a critic of the lack of due process in the no-fly zone in the past, and helped get this guy off of it a number of years ago.


But then I saw that he has supported banning gun sales to people on the no-fly list since at least 2016 according to his website, and was fairly disappointed. For a senator, he seems particularly suited to know better.

Chris writes:

I'm generally for stricter gun laws, but I'm with you on this one. The no-fly list is an extra-judicial list compiled without any form of due process or constitutional protection. Using it as a basis for restricting any rights or freedoms is highly suspect. On top of that it's been shown to be fairly racially biased and almost impossible to be removed from, even when you prove your innocence.

There are some great ideas for better controlling the distribution of guns, but this is not one of them.

Thomas Sewell writes:

Digging up more info on the actual legislation in question, it appears the sponsors consider it to [Emphasis added]:

Provide robust, due process procedures to protect the Second Amendment rights of law-abiding Americans. Any American denied a purchase under this bill would have the opportunity to have his or her case heard before a federal district court judge within 14 days.
I'm not sure I'd also characterize an after-the-fact appeal as the ideal due process solution, but at least it's not a matter of trying to get yourself off the no-fly list.

Ideally, if the denial hearing included the opportunity for the Judge to order someone removed from the no-fly list, that'd give the 3k Americans on the list an easy back-door way to get off of it which doesn't seem to exist in easy form right now.

Alan Goldhammer writes:

A sort of no-fly list story; my late mother was constantly targeted for extra security screening at US airports despite the fact that she was in her early 80s (this was around 2005-7) and she was flying back and forth from her home in Israel to the US. She could never get a response from the agents as to why this was happening. Two years ago I inquired whether the FBI had a file on her (I had reasons beyond the one stated above) but there was no file. Perhaps it was because she was a lifetime member of the ACLU.

While I am in favor of stronger gun controls I believe that all the Constitutional protections should be adhered to. It's important to note that guns can be regulated under certain circumstances and conservative Supreme Court justices Warren Burger and Antonin Scalia have affirmed this. Unfortunately we live in a hyper-polarized country and common sense approaches such as controlling assault rifles and high capacity magazines appear to be non-starters.

David R Henderson writes:

@Alan Goldhammer,
Interesting story.
When I decided in the mid-1970s to go for my green card, it was at a time when I was reading a lot about civil liberties and badly wanted to join the ACLU. But the INS does an extensive background check and, IIRC, asks for the names of organizations you've joined. So I held off until after I got my green card. Could well be a Type II error but that was better than a Type I error: asymmetric loss function.

Phil writes:

There are many legitimate and common examples of ex post due process: a temporary restraining order and a preliminary injunction are two. With respect to confiscating a gun from a perceived mentally ill person, provided there is some requirement of probable cause to believe the person is a danger to himself or others, taking the gun and having a hearing a week or two later seems perfectly reasonable.

DeservingPorcupine writes:

Thomas Sewell,

Regarding that I wonder what would happen if you appealed and won, but then tried to buy another gun later? Presumably you'd have to do the whole thing over again unless they decided to keep a second secret list of people who were on the no-fly list but were allowed to buy guns.

(I'm pretty sure the answer is that none of them has thought of that.)

David R. Henderson writes:

There are many legitimate and common examples of ex post due process: a temporary restraining order and a preliminary injunction are two.
Good point. Unless they change the no-fly list procedure dramatically, though, there would not be due process even in the sense you discuss.

Thomas Sewell writes:


I was going to say that surely no one would be that stupid in their process, to require a new hearing for every purchase, they'd have to setup something to "clear" you from the no-gun version of the list, but then I remembered we're talking about the federal government and relented.

In short, would have to check the text of the actual bill and/or any enabling regulations if it passes.


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