[Peace] ACLU: Use of Error-Prone & Unfair Watchlists Is Not the Way to Regulate Guns in America

[Robert Naiman]

Hina Shamsi, Director, ACLU National Security Project
& Chris Anders, Deputy Director, ACLU Washington Legislative Office

https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america

In the wake of the attack on LGBTQ Americans in Orlando, gun control is
again at the forefront of the national conversation.  It is also the
subject of proposed legislation in Congress.  We at the ACLU, like many
other Americans, are appalled by the Orlando tragedy.  We have deep
concerns, however, about legislative efforts to regulate the use of guns by
relying on our nation’s error-prone and unfair watchlisting system.

That’s why we sent a letter today
<https://www.aclu.org/letter/aclu-letter-urging-senators-vote-no-cornyn-amendment-4749-and-feinstein-amendment-4720-hr>
to
the Senate, opposing legislation from Sen. Cornyn (R-Texas), which uses the
watchlisting system as a predicate for gun regulation, and also opposing a
proposal by Sen. Feinstein (D-Calif.), which does not rely on mere presence
on watchlists, but nevertheless raises issues of fundamental fairness.

The letter explained to senators the ACLU’s position on gun control:

We believe that the right to own and use guns is not absolute or free from
government regulation since firearms are inherently dangerous
instrumentalities and their use, unlike other activities protected by the
Bill of Rights, can inflict serious bodily injury or death.  Therefore,
firearms are subject to reasonable regulation in the interests of public
safety, crime prevention, maintaining the peace, environmental protection,
and public health.  At the same time, regulation of firearms and individual
gun ownership or use must be consistent with civil liberties principles,
such as due process, equal protection, freedom from unlawful searches, and
privacy.

And we explained why we oppose Sen. Cornyn’s legislation, which uses the
watchlist system as a starting point for regulating guns. It may sound
appealing to regulate firearms by using the government’s blacklisting
system for what it calls “known or suspected terrorists,” but we have long
experience analyzing
<https://www.aclu.org/sites/default/files/field_document/watchlist_briefing_paper_v3.pdf>
the
myriad problems with that system, and based on what we know, it needs major
overhaul. As we told the senators:

Our nation’s watchlisting system is error-prone and unreliable because it
uses vague and overbroad criteria and secret evidence to place individuals
on blacklists without a meaningful process to correct government error and
clear their names.

That’s why we have argued that if the government chooses to blacklist
people, the standards it uses must be appropriately narrow, the information
it relies on must be accurate and credible, and its use of watchlists must
be consistent with the presumption of innocence and the right to due
process. This is not what the government is doing, though. Instead, as we
explained to the Senate using the No Fly List
<https://www.aclu.org/blog/speak-freely/until-no-fly-list-fixed-it-shouldnt-be-used-restrict-peoples-freedoms>
as
an example:

The government contends that it can place Americans on the No Fly List who
have never been charged let alone convicted of a crime, on the basis of
prediction that they nevertheless pose a threat (which is undefined) of
conduct that the government concedes “may or may not occur.” Criteria like
these guarantee a high risk of error and it is imperative that the
watchlisting system include due process safeguards—which it does not. In
the context of the No Fly List, for example, the government refuses to
provide even Americans who know they are on the List with the full reasons
for the placement, the basis for those reasons, and a hearing before a
neutral decision-maker.

It is unsurprising that a system like this is not just bloated, but applied
in an arbitrary and discriminatory manner
<https://www.aclu.org/blog/numbers-tell-story-our-governments-watchlisting-binge>
.

By relying on the broken watchlist system, Sen. Cornyn’s proposal would
further entrench it. Sen. Feinstein’s gun control proposal, on the other
hand, has moved away from a previous version that expressly relied on
watchlisting standards. Her new proposal does not rely on the mere presence
of an individual on a watchlist as a basis for denial of a firearm permit.
Still, her new proposal uses vague and overbroad criteria and does not
contain necessary due process protections. It also includes a new
notification requirement that could result in a “watchlist” that is even
broader than any that currently exists — so broad that it would include
even people long ago cleared of any wrongdoing by law enforcement.

You should read the full letter
<https://www.aclu.org/letter/aclu-letter-urging-senators-vote-no-cornyn-amendment-4749-and-feinstein-amendment-4720-hr>
for
yourself.  And then we ask you to call your senators to oppose these
proposals. Congress can pass effective gun control laws without relying on
unfair and discriminatory watchlists or failing to provide meaningful due
process.

===

Robert Naiman
Policy Director
Just Foreign Policy
www.justforeignpolicy.org
naiman at justforeignpolicy.org
(202) 448-2898 x1
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