This piece is the second of a two-part series on Muslim Americans and Second Amendment rights. Read the first post here.
By Serena Rabie
Associate Editor, Vol. 21
Executive Editor, Vol. 22
In a previous piece I discussed the aftermath of the Pulse Nightclub shooting in Orlando, Florida and its potential to impact the ability of Arab and Muslim Americans to exercise their Second Amendment right to bear arms. In the days immediately following the shooting, Senate Democrats participated in a 15-hour filibuster in an attempt to “galvanize the U.S. around gun control.” One focus of the Democrats’ push for gun control is to prevent individuals on federal terror watch lists from being able to purchase guns.
The push seems reasonable on its face, but critics are quick to point out that there are numerous due process issues associated with this type of policy. The National Rifle Association (“NRA”) has argued that “due process protections should be put in place to allow law-abiding Americans who are wrongly put on a watch list to be removed.” The NRA has a strong basis to be concerned, as estimates show that in 2013 there were over 680,000 individuals on the master watch list, and that 40% of those individuals are described as having “no recognized terrorist group affiliation.” The American Civil Liberties Union (“ACLU”) voiced similar opposition to the proposal. The ACLU penned a letter to U.S. Senators urging them to oppose legislation sponsored by Senator Cornyn (R-Texas) and Senator Feinstein (D-California) that would regulate firearms. Senator Cornyn’s Amendment would rely on the watch list as a predicate for a proceeding to deny a firearms permit, while the Feinstein Amendment uses vague terms to deny a firearms permit, including the term “related to” terrorism. The ACLU contends that the vague terms used in the Feinstein Amendment are “borrowed” from the existing watch list standard. The ACLU argued that the deficiency of the watch list system makes it an improper mechanism to use to regulate the purchase of firearms. They wrote: “Our nation’s watchlisting system is error-prone and unreliable because it uses vague and overbroad criteria and secret evidence to place individuals on blacklists without a meaningful process to correct government error and clear their names.”
Similarly, the use of watch lists in the push to regulate guns is likely to have a disparate impact on the ability of Arab and Muslim Americans to purchase firearms. The ACLU was quick to point out that Dearborn, Michigan has more watchlisted individuals than any city in America with the exception of New York City—more than the total population of Chicago, Houston, or San Diego. This was true despite the fact that Dearborn’s population of 98,153 pales in comparison to those cities, whose populations are 2.7 million, 2.1 million, and 1.3 million, respectively. Dearborn is notably the center of one of the largest Arab American communities in the United States. The no-fly list is similarly problematic, as it also disproportionally impacts Arab Americans. It is secret, error-prone, and there is no due process or effective recourse for individuals placed on the list.
Arab and Muslim Americans have repeatedly challenged the legitimacy of their placement on such watch lists on due process grounds. In Mohamed v. Holder,995 F. Supp. 2d 520 (E.D. Va. 2014), a United States citizen, Gulet Mohamed, had traveled to Yemen, Somalia, and Kuwait to visit relatives and learn Arabic. He was subsequently placed on a no-fly list. On a motion to dismiss, the Eastern District of Virginia held that the plaintiff’s allegations were sufficient to state a claim for both the substantive and procedural rights to due process under the Fifth Amendment of the Constitution. In Latif v. Holder, 969 F. Supp. 2d 1293 (D. Or. 2013), the court was presented with a similar task. In that case, U.S. citizens and permanent legal residents brought an action challenging their suspected inclusion on the no-fly list. The plaintiffs were only able to allege suspected inclusion, because though they attempted to seek additional information about their inclusion from the Department of Homeland Security, they were never told why they were not permitted to board flights. On cross-motions for summary judgment, the court held that citizens have a constitutionally-protected liberty interest in traveling internationally by air and that citizens have a constitutionally-protected liberty interest in their reputation. Additionally, they found that the Department of Homeland Security’s (DHS) process for redressing erroneous placements of airline passengers on its No-Fly List (List) carried a high risk of erroneous deprivation of constitutionally-protected liberty interests and DHS’s process for redressing erroneous placements of airline passengers on the List lacked any meaningful procedures to afford such passengers opportunity to contest their placement on the list. Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014). It is precisely this lack of transparency that leaves individuals so wary of the use of watch and no-fly lists in association with gun rights. In August 2014, the Michigan Chapter Council on American-Islamic Relations (“CAIR”), announced another lawsuit challenging the placement of Muslim Americans on the terror watch list without due process protections.
Given the arbitrary and often discriminatory nature of these watch lists, it is ill-advised to tie them to another important right—the right to bear arms under the Second Amendment. Though the need to combat terrorism and gun violence in America is important, we need to consider how any potential steps impact already marginalized communities. We cannot let our haste in wanting to move forward on the issue of gun control compromise the legal protection that we afford to one subset of the population.