Considering recent legislation proposed by the Senate that would deprive U.S. Citizens on the no-fly and terror watch lists of their 2nd Amendment rights, what better time for a refresher course on just why using these lists as a means of restricting gun rights would violate constitutional due process protections.
In December of last year, Congressman Trey Gowdy of South Carolina held a clinic for Kelli Ann Burriesci, Deputy Assistant Secretary Screening Coordination at the Department of Homeland Security, on the dangers of using the terror watch list to restrict peoples rights.
“What process is afforded a U.S. citizen, not someone who’s overstayed a visa, not someone who crossed a border without permission, but an American citizen—what process is currently afforded an American citizen before they go on that list?” Gowdy asked Burriesci during the December Oversight and Reform Committee hearing.
“I’m sorry, um, there’s not a process afforded the citizen prior to getting on the list,” Burriesci said. “There is a process should someone feel they’re unduly placed on the list.”
“Yes, there is'” Gowdy said. “When I say ‘process’ I’m actually using half of the term ‘due process,’ which is a phrase we find in the Constitution, that you cannot deprive people of certain things without due process. So I understand [no-buy, no-fly], which is to wait until your right has been taken from you and then you can petition the government to get it back. I understand that that’s his idea.”
“My question is, can you name another constitutional right we have that is chilled until you find out it’s chilled, and then you have to petition the government to get it back? Is that true with the First Amendment?”
Burriesci tried to explain the process for putting someone on the terror watchlist, but Gowdy interrupted her.
“My question is what process is afforded a United States citizen before that person’s constitutional right is infringed…My question is, how about the First?”
“How about we not let them set up a website?” he asked. “Or a Google account? How about we not let them join a church until they can petition government to get off the list? How about not get a lawyer? How about the Sixth Amendment? How about you can’t get a lawyer until you petition the government to get off the list? Or, my favorite, how about the Eighth Amendment? We’re going to subject you to cruel and unusual punishment until you petition the government to get off the list.”
“Is there another constitutional right that we treat the same way, for American citizens, that we do the Second Amendment?” Congressman Gowdy asked. “Can you think of one?
Burriesci was left speechless.
“Can you think of one?” he Gowdy repeated.
“I don’t have an answer for you, sir,” Burriesci said awkwardly.