If you were asked right now which leading figure of a major political party is suggesting profiling Muslim-Americans and violating their constitutional rights, you would probably answer Donald Trump. You would be forgiven for thinking this: while he has avoided specifics and cloaked his responses in ambiguity, it appears Trump is proposing registering all Muslim citizens in a government database — in clear violation of their First Amendment rights.
Fortunately, Trump is in no position to actually accomplish this, and he likely never will be. Unfortunately, Trump is not the answer to my question. Several leading Democrats have proposed barring all individuals on the terror watch list from purchasing firearms. On the surface, this may appear sensible. However, given how these lists are compiled, adopting such a law would result in a gross violation of each individual’s right to due process, and would predominantly harm law-abiding Muslim-Americans.
Listening to the proponents of this policy, the issue seems relatively straightforward: we have identified the terrorists, and the only thing stopping us from cutting off their access to weapons is the greedy, profit-seeking National Rifle Association and its bought-and-paid-for politicians. Preventing suspected terrorists from acquiring weapons seems like a no-brainer, and if it were indeed that simple there would be no debating this issue. But pause to think about the premise of this policy. If we have already identified the terrorists in America, why are we not detaining and indicting them right now? Herein lies the problem. This proposal does not use the American justice system; rather, the proposal intentionally circumvents it.
While we do have lists of names of suspected terrorists, these people have not actually committed a crime. Moreover, these “suspected” terrorists are not necessarily suspicious persons at all. As of right now, there are nearly 300,000 people on the terror watch list with no recognized ties to any major terrorist organization, according to Techdirt. That is more than the amount of individuals on the watch list with suspected ties to Hamas, Hezbollah, al-Qaeda and the Taliban combined. The criterion for addition to this list is almost entirely arbitrary. The only requirement is the incredibly elastic phrase “reasonable suspicion,” which allows essentially anyone to get added to the list without explanation, often simply because they share a name with a suspected terrorist. In one somewhat comedic instance, Fox News contributor and editor of the Weekly Standard Stephen Hayes found himself on the watch list after booking a cruise to Istanbul. In a less comical instance illustrating the potential for rampant racial profiling, five Muslims in Michigan were added with no notification, explanation or, most importantly, due process. They are now (understandably) suing the federal government.
None of this is to say we should not keep a terror watch list. While many oppose the idea altogether, I don’t view merely keeping a list of foreign and domestic suspects inherently problematic in the post-9/11 world — although significantly amending how the list is constructed in order to zero in on actual terrorism suspects, rather than Stephen Hayes or 8-year-old kids, would be welcome. But we must be careful about how we use this list with regard to our own citizens and other legal residents who enjoy the full protection of the Bill of Rights. Consider the reaction to a law proposing American citizens on the terror watch list lose other legal protections without due process. Perhaps we should suppress their free speech, or ban them from attending mosques or quarter soldiers in their homes. Obviously, any of these suggestions would elicit immediate outrage from the left. We cannot just discard an individual’s legal protections guaranteed by the Bill of Rights simply because some guy with a Confederate flag tattoo on his bicep suspects that his Arab neighbor is a terrorist — unless, of course, the proposal only disregards the Second Amendment. When that particular amendment is violated, the ends suddenly justify the means. That is simply hypocritical.
This argument should not be viewed through a pro- or anti-gun control lens. Although I have written disparagingly about reflexive calls for gun control in the past, my position here does not stem from antipathy toward any and all forms of gun control. Of course I don’t want possible terrorists to obtain lethal weapons. But at its core, this issue is about civil rights and due process, not gun control legislation. The terror watch list as it is currently constructed is not nearly accountable enough to possibly justify using it as a tool to deprive Americans of their fundamental rights. This point alone seems uncontroversial. The problem seems to be that people don’t view gun ownership as a fundamental right. Fine, that is an understandable belief. But it still does not provide a sufficient justification for this proposed law.
Regardless of one’s personal feelings on the issue, thanks to the Supreme Court’s most recent interpretation of the Second Amendment, a fundamental right to bear arms is the law of the land. Thus attempting to use the terror watch list to deprive Americans of that right is not only unconstitutional; it is on a par with seeking to prevent the unfortunate individuals comprising the list from enjoying their right freedom of speech, religion, due process or any other component of the Bill of Rights. We must take steps to reduce the dangers of terrorism here at home, but until we seriously amend the terror watch list, or integrate the justice system so as to actually charge those listed on the watch list with crimes, we cannot strip them of their Constitutional rights.
Matt Winesett is an Opinion columnist for The Cavalier Daily. He can be reached at m.winesett@cavalierdaily.com.
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