The constitutional problems with government watch lists

  • 20 June 2016
  • NormanL
The constitutional problems with government watch lists

The Senate will take up Sen Dianne Feinstien's bill to expand federal watch lists, and use those lists to ban people on them from purchasing firearms.

We noted earlier that Democrats were already complaining that the Fifth Amendment was standing in their way of expanded gun control. In the wake of their filibuser last week, Democrats are now calling such concerns a "red herring."

The probem is, their mania for establishing more and broader watch lists runs smack into constitutional protections:

"As an information-collection tool, the watch list lacks all of the features that due process requires before the government can deprive an American of rights: namely, notice, a neutral arbiter, the ability to confront witnesses and examine evidence, a reasoned decision and the ability to appeal.

"Linking the watch list to the deprivation of a constitutional right is obviously, heinously and stupidly unconstitutional. So of course the Democrats want to do it," Malor added.


Ken White, an attorney who co-authors the libertarian blog, concurred with Malor, and argued the proposed gun legislation poses a real risk the rights guaranteed by the Constitution.


"The huge due process concern is about limiting any constitutional right based on what amounts to an arbitrary, mostly unreviewable, mostly secret, frequently clearly incompetent list of people," White told the Examiner. "It's hard to imagine a bigger due process violation."


"The list is notoriously full of people who have done nothing at all," he added.


He's not alone in characterizing the watch list as shady: As recently as 2014the New York Times' editorial board described the "no fly list," which is based on the terror database, as "overbroad" and "shadowy."


White continued, "It really doesn't matter what right [the list is] being used to deny, whether it's the right to bear arms, the right trial or any other right. It's the government putting you on a list according to secret justification that they won't share.


"When you try to challenge it in court, the litigation drags on for years. The secrecy procedures will deny you information about why you're on the list, and it's very rare to be taken off. If you do manage that, it's only after years of litigation, effort and money," he added.


Originally, he continued, the list was used to justify denying people the right to travel. Now, Democratic lawmakers are considering using the list to deny people their Second Amendment rights. Who knows what's next, he said.

The political classes' disdain for the Constitution is nothing new, as are its efforts to exploit tragedy to weaken the document's protections even further.

But we are amazed to see the new tactics of the anti-gun left include trashing the Fifth Amendment they long championed.

Desperate measures? Yes. But now comes the test to see whether Republicans have the courage to stop this two-front attack on the Bill of Rights.