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Commentary: Heitkamp supports denying Americans their rights without due process

columnist Rob Port

Sen. Heidi Heitkamp wants the government to be able to deny you constitutionally-protected rights not because you've been convicted of a crime, or found to be incompetent or dangerous through some legal process, but rather because the government has decided to put you on a list.

I'm not exaggerating.

In 2016 Heitkamp backed legislation, along with Maine Sen. Susan Collins, which would allow the federal government to deny Americans their Second Amendment rights if they're on a watch list of people who are suspected to be dangerous.

In 2018, in the wake of the horrific school shooting in Florida, Heitkamp and Collins have introduced the legislation again.

"Our bipartisan bill is based on one simple principle: if you are considered to be too dangerous to fly on an airplane, you should not be able to buy a firearm," Collins said during a floor speech this past week.

That sounds reasonable enough, until you realize you could be on a government watch list right now and not even know about it.

"The government contends that it can place Americans on the No Fly List who have never been charged let alone convicted of a crime, on the basis of prediction that they nevertheless pose a threat (which is undefined) of conduct that the government concedes 'may or may not occur,'" the ACLU wrote in a letter opposing this legislation in 2016.

The mechanisms for ending up on the no-fly list are a secret, though there has been informed speculation about the criteria. Controversial social media postings can land you on it, as can travel to certain parts of the world or even just having a name similar to someone the government thinks should be on the list.

If all this sounds like something out novel about a future dystopian police state, you're right. Author Phillip K. Dick coined the term "precrime" for it in his short story "The Minority Report" (you may have seen the movie version of it starring Tom Cruise).

Dick's formulation of the concept has a government agency tasked with identifying and capturing people before they commit crimes.

If we start using government lists of people who might commit a crime to deny the people on those lists their rights, we're essentially punishing them before they break the law.

Heitkamp has tried to explain away these concerns. In a 2016 op/ed defending the legislation she said that due process rights are preserved by the legislation because those denied their rights could appeal.

But that's not how due process works. Can you imagine being told you couldn't vote, or exercise your freedom of speech, or be protected from unwarranted search and seizure until you proved to the government that you deserve to be able to exercise your rights?

It's shocking that Heitkamp, who has in her background a stint as North Dakota Attorney General, would have such little respect for our constitutional rights.

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