EDITOR’S NOTE: This is one of a series of articles on gun rights. Each addresses a common anti-gun trope.

“If you are on a no-fly list, you should be on the no-buy list!”

Two of the many lists the federal government maintains are the No-Fly List, curated by the Terrorist Screening Center, and the “No-Buy List”, more formally known as the National Instant Criminal Background Check System (NICS), curated by the FBI. Anyone wishing to purchase a gun from a licensed firearms dealer must clear a background check via the NICS, and anyone who looks to board an airplane is checked against the No-Fly list.

The NICS was established in 1993 by the Brady Act, and is based on a set of criteria established by the 1968 Gun Control Act. People can be denied a firearms purchase based on these criteria:

• Felony conviction or conviction of a crime with a prison term greater than one year.
• Indictment for a crime with a prison term greater than one year.
• Is a fugitive from justice.
• Uses controlled substances illegally.
• Has been adjudicated as a mental defective or committed to a mental institution.
• Is in the US illegally.
• Was discharged dishonorably from the military.
• Has renounced U.S. citizenship.
• Is subject to a restraining order.
• Has been convicted for domestic violence.

The NICS has an appeals protocol in place for those who feel they have been wrongfully denied a firearms purchase. About 5% of denials are “false positives.”

The No-Fly list, which existed before 9/11 but only had a handful of names on it, has grown in the ensuing years, to over 100,000 names. While vast majority of the names on the list, by one report, are not American citizens, some are. The list, in stark contrast to the NICS no-buy list, is based on suspicion, and one can land on it without having actually done anything wrong. Indeed, the TSA’s searchable website offers this disclaimer:

Inclusion of persons in the Data does not imply or allege their participation in terrorist activities. The Data is intended to be used for reference purposes only, and should not be relied upon as the sole determining factor of an individual’s participation or non-participation in terrorist activities. All persons are presumed innocent until proven otherwise.

In addition, the protocol for getting one’s name removed from the list, either due to error or otherwise, is rather murky (and, according to the ACLU, constitutionally inadequate.

Thus, there are stark differences in the two lists, both in how one ends up on them and how one gets off them. Those differences, at their core, relate to the due process of law, a fundamental protection enshrined by the 5th and 14th Amendments to the Constitution. Whereas landing on the NICS list requires some element of due process (indictment, conviction, adjudication of mental condition, dishonorable discharge, restraining orders), or a lack of citizenship itself, landing on the No-Fly list involves no such constitutionally mandated due process.

While, as a libertarian, I question and doubt the government’s right to debar my contracting with a private business to transport me from Point A to Point B, given that the right to move about freely is as inherent and inalienable as any other of our fundamental rights (and should thus be covered by the 9th Amendment), the current state of affairs is that the government has established the authority to deny people boarding commercial aircraft, so I’ll leave that argument for another day. In short, as things currently stand, we cannot assert our right to board a commercial airliner.

We can, on the other hand, assert our right to purchase a firearm. While some localities make it difficult, and some have made it near-impossible to carry a firearm without convincing the government of necessity, the Heller and McDonald Supreme Court decisions have validated the fundamental right to possess firearms.

Thus, we have, on the one hand, the government using suspicion to deny persons a non-right, and on the other hand, the government using due process of law to deny persons an enumerated and protected right.

What happens should we add the names on the No-Fly list to the No-Buy list? We violate the due-process rights of those who are on the former but not already on the latter. Think that’s not a big deal? Read on.

To repeat, and this cannot be stressed enough, the government can put a person on the No-Fly list on mere suspicion. One cannot be denied gun rights (or other rights for that matter) on mere suspicion. Even an indictment for a felony, which falls well short of conviction, requires a grand jury (a group of one’s peers, not a government bureaucrat) deciding to hand it down. In merging the two lists, we establish that mere suspicion is sufficient cause to deny people their Constitutionally protected rights.

What happens should this precedent be established? We’d have handed the government a massive amount of power, and we’d have blown up the Fifth Amendment.

But… But… they’re terrorists! There must be a reason they’re on the list!! They shouldn’t be allowed to have guns!!!

If their terrorist bona fides are that solidly known, doesn’t the government already have the power to take actions that would land them on the No-Buy list? If not, if it can’t be shown they’ve done anything wrong, how can infringing their rights be justified?

There are two types of people who want the no-fly list and no-buy list merged. There are the naive, ignorant and emotional sorts, who either don’t understand the facts and points I’ve detailed herein, and there are the cynical anti-gun sorts, who don’t care about due process and constitutional protections when it comes to gun rights and who will seize on any argument to advance their agenda. Neither is supported by the facts or the law. The former, fortunately, can easily correct their ignorance (nothing wrong with ignorance – we’re all ignorant of many, many things) and realize the false conclusion that ignorance fostered. The latter, on the other hand, are enemies of liberty, and they should be resisted always and without fail.

So,

Gun rights lesson #282: The No-Fly List violates fundamental due-process protections, and merging it with the No-Buy list would grant the government enormous, unchecked, and virtually unchallengeable power to infringe one’s rights at its whim.

• About the Author

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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