You’re concerned about due process? Since when?

United States Capitol from the side of the U.S. House of Representatives (Photo by John Griffiths is licensed by CC 2.0)

I am up far too late watching coverage of the Democratic sit-in at the House of Representatives. Seriously, it’s a little pathetic that I’m going to be tired tomorrow because of my interest in a display of political theatre.

Democrats from the House of Representatives are attempting to force a floor vote on two pieces of gun regulation: passage of updates to the universal background check systems and “no fly no buy” legislation. The latter of these two measures proposes some sort of ban or restriction on individuals who are on terrorist watch-or-no-fly-lists from buying firearms. A fifteen-hour Senate filibuster last week forced four failed votes on gun legislation, but led to a new bipartisan coalition putting together a piece of legislation to address the various concerns in the “no fly no buy” debate.

One of the main concerns in regards to this type of legislation is that it would deny citizens of their constitutionally-protected right to purchase a firearm without due process of law. To be clear, I agree that this is a legitimate concern and the Senate’s bipartisan bill provides for an avenue of due process — with the burden of proof landing on the government — for citizens who find themselves wrongfully on these restricted lists.

However, the fact that terrorist watch lists and the no-fly list exist with very little legal oversight is not new information. These post-9/11 precautions have been something that we have lived with since the period after that tragic day in 2001. The fact that law-abiding citizens have been subject to finding themselves on a federal watch list is not new information.

So, why now? Why is the due process attached to the no-fly or selectee list so important now? Why, for 15 years, have we been comfortable enough with citizens, public figures, and representatives being wrongfully restricted from exercising their constitutional right of freedom of movement?

For 15 years we have had a largely secret list of citizens whose rights we have restricted without due process. I agree that that is an issue, and one that we should legislate to correct. After all, the same issues were brought to light about the PATRIOT Act and its articles relating to surveillance and intelligence gathering, and we legislated corrections to those policies.

But, again, why is this suddenly an issue that gets loyal American patriots frothing at the mouth?

Is it a display of the political opportunism and reach of influence of the NRA? Absolutely. But I think that there’s also something to be said about an unspoken truth: we didn’t necessarily care about the rejection of rights without due process when it came to keeping “certain people” off planes after 9/11.

Members of the Muslim community and people of color, nationwide, have raised concerns over the composition of these lists for years. In what little we know about the no-fly list, we are aware that profiling has been too large of a factor in its composition. The American Civil Liberties Union has been noted in their opposition to restricting rights until these issues are addressed.

So, why now? Why is this such a glaring constitutional issue now?

Could it be due to the fact that the majority of Americans could look the other way while people who fit their mental image of the “radical jihadi terrorist” or the “homicidal thug” were denied their rights? Does it matter that the NRA, a majority of whose members are whites in rural areas, is mounting this sudden outcry for something that is just as constitutionally-protected as gun rights? Could the fact that expanding these restrictions to address domestic terror and mass shootings — which, statistically, are perpetrated mostly by white Americans — expands the scope and our caricature of “terrorists” too far for comfort?

If you’re worried about due process, that’s great, it’s long overdue, and we should fix it. But let us hold the same standard for every American, not just those we’re comfortable with labeling as “too dangerous”.