According to Forum 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." That statement should be enough to raise any properly educated lawyer's doubts whether Mr. Port is qualified to opine on the subject. I, for one, and as one, am convinced that he is not.
Port complains that "[i]f 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." Do not be fooled by Port's attempt to characterize use of the no-fly list as a basis for refusing firearm sales as some novel, unprecedented violation of due process.
What he fails to grasp is that the Supreme Court has long recognized the right to travel, both domestically and internationally, as a fundamental constitutional right. Indeed, the right to travel was established significantly earlier than any modern contours of the Second Amendment. See, e.g., Kent v. Dulles, 357 U.S. 116 (1958). In that case, Justice Douglas stated:
The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that "liberty" is to be regulated, it must be pursuant to the lawmaking functions of the Congress. . . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.
The upshot, of course, is that the no-fly list already restricts a fundamental constitutional right, without-according to Mr. Port, at least-due process. If he is alarmed by the use of that list as a basis for restricting Second Amendment rights, therefore, he should be equally alarmed that the list exists in the first place. But tellingly, Port never suggests that restricting the right to travel is even problematic, much less that the no-fly list itself is unconstitutional. Instead, the no-fly list attracted Mr. Port's ire solely because this time around, it was poised to affect Second Amendment rights.
In other words, Port's opinion is rooted in partisan politics, not any kind of principle. He has simply decided that the right to own a gun is more important than the constitutional right to freely move and travel. Port is entitled to that opinion, of course, but he is not entitled to propagate it by exploiting his readers' trust or lack of familiarity with the subject-matter.
I am a strong civil libertarian, and still I am less concerned by Sen. Heitkamp's actions-i.e., use of an existing yet questionable method of restricting one constitutional right as a basis for restricting another constitutional right-than I am by Port's misrepresentation of the law and the legal implications of Heitkamp's actions as a means to score cheap and undeserved political points.
If considerations of national security justify the flimsy procedural safeguards that protect citizens from being entered on the no-fly list, the same considerations justify a ban on firearm sales to individuals on that list. If not, then Port's target is not Heitkamp, but rather the political forces that have blessed restrictions on our right to travel under such anemic safeguards.
Douglas lives in Fargo.