Every so often, generally following the latest shooting incident, there is a proposal put forth to not let someone purchase a gun if that person is on the No Fly List. The basic gist of the laws is that if you’re on the terrorist watch list/the no-fly list then you aren’t allowed to own a gun. On the surface, this sounds perfectly reasonable. No one wants terrorists to get guns, not even the NRA. (maybe)
Nonetheless, the law is unconstitutional and should be rejected.
The List has no rhyme or reason. Anyone can be added at any time for any reason and they have no recourse to challenge their inclusion. This has been permitted so far as the list only prevents an individual from flying on an airplane. Flying is not a right. Same as driving a car, flying has been deemed a privilege and as such the government can put in place much greater restrictions.
Owning a gun is a right. The 2nd Amendment has been interpreted as recently as this past March by the United States Supreme Court to guarantee all Americans the right to own a gun to some degree.
“The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Caetano v. Massachusetts 577 U.S. ___ 2016
It is important to remember that there are not tiers of rights. No right – legally – is more important than another. If a law were proposed that anyone on The List be prohibited from receiving a trial or speaking in public we would all rightfully reject it as absurd.
Now, no right is absolute either. All rights are subject to some limitations (as a general rule). Hence the classic, “You can’t yell fire in a crowded theater” and claim it is protected by the 1st Amendment. This is why the 2nd Amendment has never been interpreted to permit an individual to own an atomic bomb.
However, by creating a list of people who are not permitted to buy guns, the government has, in effect, deprived these people of their constitutional right without any known due process. Without your knowledge you can be placed on The List. You have no ability to remove yourself from The List. Once on The List you no longer are permitted to exercise a constitutionally guaranteed right.
There may be any number of potential regulations of firearms that are constitutionally sound. The “No Fly No Buy” law is not one of them.