Denial of gun ownership is total.

Photographer: Jewel Samad/AFP/Getty Images

Gun Rights Are Different From Travel Rights

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What if the National Rifle Association is right that the no-fly list shouldn’t be used for denying people guns, as President Barack Obama has urged and Connecticut Governor Dannel Malloy has said he will do? If you’re a liberal, the very idea may seem absurd -- but in fact there’s an important constitutional issue at stake.

The problem isn’t that gun-sales restrictions are unlawful in themselves. It’s that the no-fly list is a black box full of errors, featuring limited opportunity for redress. Whether you like it or not, gun possession is a constitutional right under the Second Amendment -- unlike flying. That means we need to decide whether the government can restrict that right based on a determination of dangerousness that occurs with a very unusual form of due process.

In 2014, a federal district court held after a suit by the American Civil Liberties Union that the no-fly list as it was then operating violated due process. The court’s reasoning was that the government’s procedures created a high risk of erroneously depriving people of their constitutional right to travel. Additional safeguards, the court said, would improve the process without costing the government more than the benefit would be worth.

In particular, the court was troubled that the government won’t tell you why you’re on the no-fly list, or why you’ve been denied redress. It required the government to provide more and better information to cure the due process problem.

In response, the government now does provide more information. But the ACLU’s challenge has continued, alleging that the procedure is still unconstitutional.

If the no-fly list is taken to be unconstitutional, then it would follow that it would be unconstitutional to use the same list to block gun purchases. If the no-fly list doesn't offer sufficient due process to restrict my right to travel, it also doesn't offer sufficient due process to restrict my right to bear arms. The government's interest in preventing terrorism in the air is identical to its interests in preventing terrorism committed using weapons.

What's more difficult, and more relevant to a real-world adjudication, is what happens if we assume the no-fly list as currently implemented by the government is in fact constitutional.

Supporters of the Connecticut ban -- and presumably the White House lawyers who must’ve advised Obama -- would argue that if the due process is sufficient to deny people on the no-fly list the right to travel, it must logically be sufficient to deny them guns.

Yet it's far from clear that the no-fly list’s limitation on travel is as serious constitutionally as a limitation on the right to purchase guns. After all, if you’re not allowed to get on a plane, you’re still allowed to get in a car. Back in 2011, Democratic Senator Charles Schumer of New York proposed a no-ride list for Amtrak, but it never passed, so that means you can get on a train. If you need to go over an ocean, your travel will certainly be slowed, but there are boats.

The point is that the no-fly list is a partial limitation on rights. Denial of gun ownership is total.

The balancing test that the federal court used to rule on the constitutionality of the no-fly list is situation-specific. It derives from a 1976 Supreme Court case called Matthews v. Eldridge, which is used by courts when they want to answer the question, “How much process is due from the government to the individual?”

The test weighs a private citizen's interest against the government's interest in light of the risks of error and the value of additional safeguards. The most famous application came in 2004, when the U.S. Supreme Court used the test in Hamdi v. Rumsfeld to determine what procedures were due to a detainee suspected of being an unlawful enemy combatant.

The difference in deprivation therefore matters appreciably. Procedures that might be sufficient to outweigh the right to fly might not be sufficient to outweigh the right to bear arms.

Then again, the procedures might be sufficient, as Connecticut's governor will argue when the case comes to court, as it surely will.

The right to own a gun isn't absolute. The Brady background check performed by the federal government denies ownership to nine categories of people. But all or almost all of these involve the prior satisfaction of due process.

So who will win? The Matthews balancing test is notoriously subjective. A liberal court might well side with Governor Malloy, while a conservative one might strike down the ban. Neither could be said to be definitively wrong.

The upshot is that we’re headed to the courts -- which is where constitutional rights should be adjudicated, no matter what you may think of them.

  1. Several categories involve convictions for crimes, where a full adjudication involving due process has occurred. If you're under indictment for a crime punishable by more than one year in prison, you can't get a gun, even though you haven't yet undergone due process -- but you'll be able to soon enough. In the case of people subject to restraining orders, the process may have taken place without their participation or knowledge, but they have a clear due process opportunity to respond. The category of “mental defective” requires a previous adjudication or committal, which also must satisfy due process. A dishonorable discharge from the military, another condition, also must satisfy military due process. The oddest exclusion is for people who’ve renounced their U.S. citizenship. That doesn’t implicate due process. But it's a voluntary act, and so arguably doesn’t need to.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net