There are a lot of other concerns about how the list is developed, as well. A lawsuit initiated by the ACLU resulted in the government acquiescing to telling people when they are on the list itself. But, as the organization notes, this still fails to offer those included "meaningful notice, evidence and a hearing." Particularly when applied to the ability to own a firearm, many would argue that the no-fly list is a violation of the 5th Amendment, which guarantees the right to due process before people are deprived of life, liberty or property. During the ACLU's lawsuit, the government admitted that people are added to the list speculatively, before they've actually done anything wrong. What's more, the Guardian reported in 2014 that the list might be used by law enforcement as a pressure point against possible informants.
The list is itself almost necessarily a slippery slope. "There's very little incentive for any particular government official to narrow the list," Sparapani said. "It's much easier to put more and more names on it." The overlap of politics and terror fears makes officials err on the side of caution. "If the list really does need to be in the hundreds of thousands" -- as it appears to be -- "we've got much bigger problems than if people should be able to get on airplanes," he said.
And then, of course, there's the other question.
"Who are these people who are so dangerous that we can't let them on planes, but we haven't gone out and arrested them?" Sparapani asked. "At what point do we actually take action against them if they're under what we think of as passive surveillance? ... If they're too dangerous to be put on a plane but not too dangerous for us to arrest them, what exactly is this list about?"
Asked another way: Who is too dangerous to be on a plane but not dangerous enough to walk around in public -- and should that person be denied the right to own a firearm because they land somewhere in that gray space? President Obama's goal was not really to keep the guns out of the hands of possible terrorists, in part because the overlap of the no-fly list and possible terrorists looks more like a Venn diagram than a circle. It was, instead, part of his effort to limit the availability of guns in general, using the no-fly list as a tool.
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