One promising model can be found in Fourth Amendment law on search and seizure. The Constitution allows the government to invade our privacy by, say, wiretapping our telephones, for law enforcement purposes in limited circumstances. First, the prosecutor must have probable cause, or sufficient evidence of wrongdoing. Second, the search must be approved by the courts.
Such principles, which were part of the framers’ broad conception of due process, have not always been followed when it comes to national security, from the internment of Japanese-Americans during World War II to the Bush administration’s warrantless surveillance program. Yet those principles can provide a sound basis for no-buy lists.
Congress should authorize no-buy lists but mandate that appropriate protections be put in place. If the attorney general believes a suspected terrorist should be added to the list, she should have to go to court first and offer up evidence. Only after concluding that the attorney general has probable cause should the court approve the denial of the suspect’s right to buy a gun.
This court proceeding, of course, would be secret. Although that denies the person included on the no-buy list the opportunity to rebut the attorney general’s evidence, we do the same thing every day with search warrants and wiretaps for criminal suspects. Our right to bear arms is no more fundamental than our right to privacy, and treating them similarly can help keep us safer from terrorists.
Yeah, I can't get behind that legal thinking. Comparing it to search warrants and wiretaps just isn't the same. Losing the right to privacy is just different than losing the right to bear arms. For most things like wiretaps, you don't even know that you've lost that right. Walking into a gun store and being told no, you're on a list, is the only way you'd find out that you're on the list. And with a search warrant, they have to show it to you and you get to see what they're looking for. Having a star chamber tribunal pass judgment on you without your knowledge or input, ever, and always in secret just doesn't do it for me. If you make the court proceeding public, or give the person a chance to hear the evidence and a chance to refute it, then I can get on board. Or, of course, repeal the second amendment and remove it as a constitutional barrier. I'm just resistant to such flippant disregards of what's in the Constitution.
