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How gun-violence tragedies shape political will and public opinion

Democrats have revived the gun debate after 49 people were killed at a nightclub in Orlando, the worst such incident in modern U.S. history.

Their renewed efforts began in earnest Wednesday, as Sen. Chris Murphy (D-Conn.) stood on the Senate floor for close to 15 hours to force a vote on two proposed gun control measures.

AirTalk debated one of those proposals – to ban those on the federal “no-fly list” from purchasing guns. We also looked at how the Orlando tragedy has shaped political will and public opinion on the debate, as well as at the slew of gun control bills moving forward in California.

Interview highlights

Topic: People who are on the no-fly list would be prohibited from purchasing guns

Adam Winkler (Pro “no buy” list), Josh Blackman (Con “no buy” list). 

You admit there is a constitutional issue here, that the Second Amendment gives that individual right. How would you work around that for a no-buy list which isn’t adjudicated, which is just a unilateral federal government action? 

Winkler: This is an important point to make at the start, which is you do have a constitutional right to have a firearm, and if anyone is going to be denied their constitutional rights, it’s absolutely essential that we satisfy the demands of due process of law. We can have a 'no buy' list that keeps suspected terrorists from having guns if we respect a few fundamental principles of due process of law.

One: The executive can’t put someone on the list unless they have evidence that the person is a suspected terrorist, not just mere conjecture. Two: You must have review by an independent court that reviews the executive’s action and say, like a criminal wiretap, approves the interference with someone’s individual rights on the basis of evidence that’s presented. And then finally, some measure of review for the individual, where they can challenge that determination in some open court proceeding. I think we can have a proposal that meets all of those demands.

How would the person affected know before they’re turned down at a gun store? Would they be alerted? 

Winkler: It makes no sense to alert people in advance that they’re on a terrorist watch list. That just highlights that the government might be following them. What you need to have is, no one would know they’re on the list until they’re actually denied their right — when they go out and actually try to purchase a firearm, there would be some kind of delay or hold on that firearm and that would most likely trigger some kind of process, whereby the government would have to prove that this particular individual, on the basis of evidence, there was reasonable suspicion that this person was engaged in or was likely to engage in terrorism.

What would be a comparable example of someone having a constitutional right taken away from them? 

Winkler: This happens thousands of times every year in America. Every time there is a criminal wiretap, something like this happens. ... Unlike a criminal wiretap, you would have the ability to challenge your inclusion on that list and the burden on your right, right away, almost immediately. But, you may never even know that your phone was wiretapped if they choose never to bring a prosecution against you.

We should treat guns and the Second Amendment like a normal constitutional right. That means, generally, that when the government has compelling reasons and chooses an approach that is based on individualized suspicion, then that is sufficient to overcome the claims of the rights holder.

Blackman: The framers of the Fourth Amendment created a very specific circumstance where you could use probable cause to conduct a search for a specific person in a specific place. The Constitution specifically countenances searches based on probable cause. There’s no reason to import that standard to other constitutional rights that don’t have such a standard.

Usually, when you want to infringe on a constitutional right, you have to pass a very high threshold — much higher than probable cause. There is no example of the First Amendment being violated and having someone have a hearing afterward. No such hearing exists. That’s called a prior restraint of speech, and the Second Amendment should be treated no differently.

The problem here isn’t so much that people have the chance to review it — they only have a chance to review a summary of the evidence, not the actual evidence, unless everything is ultimately revealed. When the ACLU and the NRA agree, I think it’s a pretty good sign that this proposal is very problematic.

Well, the ACLU has been unhappy with the No Fly List from the beginning, because of the inability of people to know in advance they're on it and to be able to effectively challenge it, but it’s not transparent as you suggest. 

Blackman: No, in fact, in December the ACLU came out against this very same proposal. They said there’s no way of challenging this meaningfully. The only evidence you’re given is a summary, not the actual evidence, and people’s constitutional rights are held in limbo for years. This is not something we should be pursuing.

Do you have any other alternative in any way curtailing that person’s ability to buy guns? 

Blackman: So the answer here is the Constitution. ... Due process of law is a bedrock of our constitutional rights — this goes back to the Magna Carta 800 years ago. In many respects, police can’t charge someone without sufficient evidence, and if they can’t charge them they need to build a better case and charge them in open court.

We have a criminal justice system, we have ways of having classified proceedings in federal courts without having these secret chamber proceedings, and that’s the constitutional right the government must pursue. They must protect both our security and our liberty.

Hillary Clinton said this a couple of days ago: "If someone is too dangerous to fly, they’re certainly too dangerous to buy a gun." So how do you respond to the logical construct that she gave there that leaves many people nodding their heads yes? 

Blackman: The key word is "suspected" terrorists. They’re suspected. There’s not enough evidence. There are thousands and thousands of innocent Muslim men who have been put on this list over the years who have done absolutely nothing wrong, who are perfectly safe to fly. ...

Do you really want President Donald Trump to have the power to make secret lists to deprive them of their civil rights? Muslim men who go to a mosque are suddenly suspected terrorists, who can’t get on planes and can’t buy guns and can’t do a host of other aspects of civic society. A good reality check for your listeners over the next few months is to ask themselves, "What if Donald Trump executes the same power as President Obama?"

Winkler: When you put Donald Trump up there as the potential president, that’s enough to scare any of us from expanding any kind of government power, so I’ll give him that. But the whole beauty of the due process system is that it’s not just Donald Trump making that determination, and so what we’re hearing from the other side is so much hyperbole. This is not just the executive acting alone.

Guests

Alan I. Abramowitz, Professor of Political Science at Emory University in Atlanta; he specializes in polarization in politics and the public

Adam Winkler, a professor at the U.C.L.A. School of Law and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.” (W. W. Norton & Company, 2013). His op-ed titled, “Time for a ‘No Buy’ List on Guns,” was published in the New York Times earlier this week

Josh Blackman, an associate professor of Law at the South Texas College of Law who specializes in constitutional law. He is the author of “Unprecedented: The Constitutional Challenge to Obamacare” (Public Affairs, 2013). His rebuttal to Winkler's piece is published toay in the National Review

Ben Bradford, state government reporter for Capital Public Radio; he tweets @JBenBradford