In the wake of Omar Mateen’s killing of 50 people at an Orlando gay club, many have cited a recent televised exchange between President Obama and a man who owns a gun store as evidence of the pressing need for gun control. In the clip, Obama laments the fact that “known ISIS sympathizers,” who appear on a terrorist watch list can buy guns “because of the National Rifle Association.” His remarks seem all the more prescient given the fact that Mateen had once been on such a list and recently purchased the AR-15 that he so sickeningly employed Sunday morning. Following the attack in Orlando, can such a state of affairs really be defended? Is it conscionable to safeguard the gun rights of people on watch lists?
Since when is it constitutional not to?
This is of course a delicate issue: The impulse to keep guns out of terrorists’ hands is easily understood. Mateen perpetrated an attack whose horror is difficult to overstate with a weapon whose potential for misuse is difficult not to see. Yet it is even more difficult to justify the proposed law in question — a ban on firearms for people on a terrorist watch list — on constitutional grounds.
The Fifth Amendment holds that no citizen may be “deprived of life, liberty, or property” by the federal government “without due process of law.” The Fourteenth Amendment imposes a similar restriction on state governments. In both cases the meaning of “life, liberty, or property” is underdetermined. Our courts have, for decades, endeavored to define precisely what rights are protected and what procedures constitute due process. But only a reading of the Constitution as contemptible of civil liberties could support the proposed law.
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Simply making it onto the No Fly List, or any other of the government’s nebulous array of watch lists, does not mean your constitutional rights can be forfeited. Indeed, more than 1 million people are in the government’s central database of suspected terrorists. Many of them are mistakenly listed. It is abundantly clear that whatever the procedures for putting someone on a terror watch list are, they do not constitute due process. Accordingly, an individual cannot be deprived of their “life, liberty, or property” simply because the government suspects him of being a terrorist.
And the right to own a gun undoubtedly falls somewhere within the definition of “life, liberty, or property.” The Supreme Court’s ruling in District of Columbia v. Heller found that individual gun ownership is protected by the Constitution; the state may not infringe upon this right. This does not forbid the passage of regulations about which guns can be bought according to what procedures. It does, however, make clear that the right to bear arms is a civil liberty with specific constitutional protection. To take away this liberty from people who find themselves on a watch list would thus be doubly contemptuous of the Constitution.
#related#That this position is eminently unpopular right now is not surprising given the American tendency to cast aside civil liberties in the face of unpleasant circumstances. Graphics and charts that detail a genuinely troubling problem with gun violence in the United States are being circulated with urgency. The sharp tenor of gun-control advocates is at least an intelligible consequence of the American gun-violence epidemic. Yet there is much lost in the uproar. So it goes. In the 1940s, Japanese-Americans simply had to be placed in internment camps. It was a matter of national security. After 9/11, the PATRIOT Act simply had to be passed so that our intelligence community would prevent such attacks in the future. It was a matter of national security. Now, after Orlando, people on the No Fly List simply have to be forbidden from buying guns. And maybe people in general. It is, after all, a matter of national security.
Why do we need robust protections on civil liberties? Could it be that the Constitution’s clear prohibition of the law Obama brings up in that video — an iteration of “common-sense gun control” — is contrary to moral law? By casting off the restrictions of the Fifth, Fourteenth, and Second Amendments, might we be able to save lives?
Ask yourself this: What happens when Donald Trump becomes president, and the precedent for denying people civil liberties according to their membership on a vaguely determined list has already been set?
— Theodore Kupfer is an intern at National Review.