I’m seeing a lot of friends and others who generally hang out near me on the left of the political spectrum express outrage at a recent vote in Congress to reject fixing what at first glance seems like a terrible loophole: People on the terrorist watch list can still buy guns. Even President Barack Obama, who called Sunday night for a law that would prevent people on a subset of the terror watch list from purchasing a firearm, is among this crowd.
Their outrage stems from the logical reaction, “If there are people we think are bent on doing us harm, why are we giving them easy access to the tools to do it?”
The concern is reasonable. The proposed remedy—to deny people on the watch list the ability to buy guns—is not, however. Not because it has anything to do with guns, but because it has to do with lists.
As Americans we understand well how important due process is. No one, for instance, should be thrown in jail just on the say-so of some government official who declares they deserve it. Such is the behavior of tyrants, the Founding Fathers understood, and so we enshrined in our Constitution the right to counsel, the right against being compelled to testify against oneself, the right to trial by jury, etc.
All of these rights are checks to ensure the government can’t simply pluck innocent people out of their lives and strip them of their life, liberty, or property. Only after fairly testing the charges against them can the government punish people with such deprivation.
But none of these hurdles must be overcome for the government to put someone on a list, especially not a list like this, which is a watch list. It is a list of people that for whatever reason (a reason that no one outside the government knows) the government has decided deserve closer scrutiny of their actions.
Is the government right to be concerned about these people? Maybe yes, but maybe not, and there is no way for ordinary citizens to know. Which means there is also no way for ordinary citizens to know whether any of them, even people who in no way intend to commit acts of terrorism, are also on that list.
In other words, there is no way to know whether you are on that list. Nor is there any way to know how to get off it.
That there is any list at all should give us all pause. It has not historically been the hallmark of a healthy democracy when governments have kept lists of people they didn’t like. It is hard to be a government of the people, by the people, and for the people when the government keeps track of the people, including those dissidents who would challenge it (which is something that in a democracy they are allowed, and even supposed, to do).
But how injurious a list may be to democracy and democratic values will ultimately depend on what the government does with the list, and that’s why this proposed legislation is so concerning.
Because what this proposal calls for is the government using the list as a basis to deny the people on it a right to which they were otherwise entitled. Now, maybe the modern interpretation of the right to bear arms has grown out of proportion from anything the Founders could possibly have intended, and maybe how we understand the scope of that right could use some adjustment. Addressing this question could potentially be a good place for gun control advocates to devote their efforts.
But based on the plain text of the Second Amendment and subsequent jurisprudence it is clear that some right is in there somewhere, and what this proposal calls for is for the government to arbitrarily and un-transparently deny this right to certain people without any sort of the due process ordinarily required. And that’s a problem.
Normally we do not let the government strip people of their rights without demonstrating why they deserve to be deprived of them. Here, though, we would be removing that safety check. With this proposal we would be authorizing the government to act capriciously and unaccountably for any reason, including—and this point cannot be emphasized enough—bad reasons or no reasons at all, and against anyone, including—and this point cannot be emphasized enough, either—people just like you. There would also be no reason why, if the government could take away this right this way today, it couldn’t take away other rights you depend on having the same way tomorrow.
The country is in a lot of pain right now, facing an injury that seems to have no end. It is not unreasonable to search for a solution as dramatic in effect as the injury itself. But we cannot let our fear and pain overpower our capacity for reason and restraint. Not only does it risk entrenching the politics of gun control at extreme, unbridgeable ends, but it also means that, if we’re not careful, the price we pay to heal one injury may be another one equally severe.