Saturday, December 19, 2015

GOP Distrust of "No-Fly" List Gun Policies and Entrance of New Refugees

No, Not the TV Show Version
(the GOP's political point-making version)

This Fear Factor
(no not the President, either; the other guy)

This ID for Gun is Okay 
(visa for children from Syria with their family — not so hot)

By way of introduction to this post I offer this from noted clinical psychologist, Dr. Justin Sinclair, and his remarks in this recent interview about fear (here from CBS News):

Dr. Sinclair: One of the things I think is different about this threat is that it's on-going, people can't know when or where or how it's going to happen. It's this thing that never ends. And it's ubiquitous. It's everywhere.

Dr. Sinclair: They tend to avoid different aspects of their lives. They fly less, they ride on public transportation less. They go into public settings less. There's been research that's shown they have a tendency to engage people from different cultural backgrounds less. They even consume media less, ironically.

Dr. Sinclair: How potent fear can be in terms of altering people's lives. And the impact that it can have in different aspects of life, whether it's making decisions about a president, whether it's supporting different policies that are important socially, or even down to how people live their everyday lives.

Dr. Sinclair: I think it sort of changes the structure of our country. It changes the structure of our government. I think fear can maybe even change things in ways that weren't consistent with how the country was founded originally.

Dr. Sinclair: I think fear moves people to become much more polarized in their viewpoints and I think that fear motivates people to go to further lengths to feel safe.

In answer to this last question: “Is President Obama's tough talk on ISIS strategy reassuring Americans,” Dr. Sinclair concluded that in small doses, fear can be a lifesaver, prompting us to react to danger. But in large doses, it can cause fatigue, depression -- even a heart attack or stroke, and it’s important to continue with a normal routine if possible.
Several sources for this posting are here and here primarily – both are good articles and great research materials. My blog notes are inserted throughout this post to express my views accordingly. 
Enjoy nevertheless – a good topic for sure.
Following the shooting in San Bernadino – that now well-known planned terrorist attack – President Obama said in his Oval Office Sunday speech, in part: “What could possibly be the argument for allowing a terror suspect to buy a semi-automatic weapon? If they are on a “no-fly” list?”
Scholars and the NRA-supported GOP give this short answer is: The Bill of Rights.
Further some of them add: There's no constitutional right to board an airplane, but the Supreme Court has said the Second Amendment provides an individual right to own firearms. Courts have held that the government can suspend that right in certain cases – for felons and people who are the subject of restraining orders, for example, but it is still unclear whether thousands of people on the “no-fly list” – many of whom may not even know of the restriction – can be unilaterally stripped of the right to bear arms.
One scholar says: “It's hard to see how a constitutional right could be limited based only on suspicion.” (Eugene Volokh, constitutional law professor at UCLA). Yet, nothing is simple when it comes to gun law.
Blog insert note: And, the GOP has no qualms about suspecting every Syrian or other refugee seeking to come to the U.S. as a “suspected” terrorist, either – suspicion is suspicion no matter who the subject or subject matter are, isn’t it?
“No-Fly, No-Buy” has emerged as a politically potent talking point, allowing Democrats to hammer Republicans as more concerned with catering to the NRA than national security. Only one Republican in the Senate voted for the measure after it was offered by Democrats on December 3, a roll call certain to be revisited in 2016 campaign Ads.
CT Governor Malloy wants to bar people on the federal “no-fly list” from buying guns in his state, and NYS Governor, Cuomo has gone further, proposing to ban gun purchases by anyone on the terrorism “watch-list.”
Blog insert note: Gov. Malloy is discussing the matter with the Obama administration and Gov. Cuomo has sought access to the watch list. FYI: both the “no-fly list” and “watch-list” are classified.
The White House has depicted the “no-fly, no-buy” proposal as common sense adding in part: “If the government has determined that it is too dangerous for you to get on an airplane, it's the view of the administration that you should not be able to legally purchase a firearm.”
Blog insert notes:
 (1) Former president George W. Bush’s administration created the “no-fly” list following the 9/11 attacks, reasoning that some people must be barred from air travel even when the government didn't have sufficient evidence to charge them with crimes. To date, about 6,400 American citizens and permanent residents were on the “no-fly” list as of September 2014 (FBI data to congress).
(2) The criteria for inclusion on the “no-fly” list are broad, and that has created travel headaches for scores of innocent Americans – some prominent – former Sen. Ted Kennedy was on the list, too at one time, and also U.S. military service members have been.
(3) The government does not notify people before placing their names on the list –you apparently find out when you try to buy a plane ticket and/or get on board a flight.
The USSC didn't explicitly rule that the Second Amendment protects an individual right to own guns until 2008, barely predating the Obama administration. But, it also left a lot of questions unanswered (says Nelson Lund, a constitutional law professor at George Mason University), and the “no-fly list” itself has been the subject of legal challenges, further complicating the matter.
For example, in 2014, a federal court ruled that the redress process for people erroneously placed on the list was unconstitutional. The government revised that system, allowing people who discover they are on the list to challenge their status by petitioning the Department of Homeland Security. The American Civil Liberties Union has nonetheless brought another suit arguing the government still provides insufficient due process.
Due process is central to Republican opposition to Obama's No-Fly, No-Buy proposal.
Speaker Ryan: “We do have a Constitution, citizens have a due process right, and anyone can just be arbitrarily placed on the list.”
Democrats have attempted to circumvent the issue by writing into the “No Fly, No Buy” legislation procedures that would allow people denied a gun greater opportunities to challenge the decision. The government would have to provide within five business days an explanation of the denial, and unlike people who are forbidden from buying guns for other reasons, such as a felony conviction, those on the “No-Fly list” could challenge the finding in court.
Still, civil libertarians would surely argue that the process is unfair. Citizens would have to shoulder the cost and burden of a legal challenge, likely without being able to review classified evidence gathered against them.
The constitutionality of “No-Fly, No-Buy” policy would hinge on “what the procedures are to get off the list, how onerous are the particular procedures, how lengthy are the particular procedures.” (Re: Robert Cottrol law professor at George Washington University).
Professor Volokh also said: “Courts might also be wary of a policy that could set a precedent for the government to deny other rights simply due to inclusion on the list. It's kind of the camel's nose under the tent. Then the future restrictions would be even easier – you have a “No-Fly, No-Buy” list, so why not a “No-Something-Else” list?" (I note: a fair question best left for that event should is arise – safety first and always even over rights, yes; and of course, who says so? Well, that’s our system – we must keep that in mind – even our legal minds – don’t cha’ think. Hard to argue for the keep the process fair and then kind of running around it with wild speculation, too).
Courts have repeatedly ruled that the right to gun ownership is not absolute, and that the government can impose some restrictions – FYI: People under a restraining order, for example, can be forbidden from buying or possessing guns, even when they have not been charged or convicted of a crime. In some states, restraining orders can be enacted automatically as part of divorce proceedings. Constitutional challenges to those restrictions have not stood up to appeal.
However, it is easier to challenge a restraining order than placement on the “no-fly” list, however, i.e., with a restraining order, the person seeking a restraining order would have to go before a judge – one knows which court and which judge has issued the restraining order; that is not the case with the “no-fly” restriction – those lists are classified.
Blog insert note: keep the lists classified, possible terrorist does not know they are on list, the go to fly and bingo, “got cha…” is that the purpose of keeping them classified – apparently so?
Courts have also upheld prohibitions on gun sales to undocumented immigrants -- who enjoy broad constitutional protections like the right to free speech even though they are in the country illegally -- and to fugitives and people suspected of drug use.
In each case, the government restricts Second Amendment rights without a trial or presentation of evidence. And would-be purchasers are constrained in their ability to challenge the decision. Why? I suppose, you are not here legally, you have no legal rights? A Rick Perry “oops” moment might fit here right about now, you think?
Finally, with all these contradictions and surely more as constitutional scholars come forward and if the “no-fly, no-buy” is ever enacted, then surely it will draw a complicated lot of fire as well as unprecedented legal challenges up and down the court lines.
Thanks for stopping – this topic and subject matter will not easily be satisfied – just as the NRA and their pals in Congress … as Yogi Berra would say: “It ain’t over till it’s over.” Stay tuned.

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