In the four-dimensional chessboard on which the politics of gun control plays out, anything can happen — and for a brief moment in Monday night’s presidential debate, it did, as Donald Trump and Hillary Clinton found themselves in agreement on at least one small aspect of it.
At issue was a ban on gun sales to people on the government’s terror watch lists, a move which has taken on huge symbolic importance since Sen. Chris Murphy, D-Conn., began pushing for it earlier this year in the wake of the deadly attack on an Orlando nightclub. Murphy made the hyperbolic but politically effective charge that Republicans who oppose the measure “want to sell weapons to ISIS.”
Murphy and his allies in the gun-control movement see this as a wedge issue that can break the National Rifle Association’s stranglehold on gun-control legislation; the NRA, accordingly, has fought the proposal, at least while it was being pushed by Democrats. At the same time, the American Civil Liberties Union, generally allied with the left, has opposed most efforts to attach new gun restrictions to the watch lists, which it regards as inherently problematic for civil liberties.
On Monday, though, Trump threw the whole debate into confusion by saying he agreed with Clinton, who also supports the idea.
“I think we have to look very strongly at no-fly lists and watch lists,” Trump said. “And when people are on there, even if they shouldn’t be on there, we’ll help them, we’ll help them legally, we’ll help them get off.”
It wasn’t his first time stating a position in favor of the ban, but he’d never acknowledged a need to improve the process of getting off the list before.
On the face of it, this defies both the NRA — one of Trump’s biggest backers — and the ACLU, which argues that Americans are being placed on the lists without being informed, without an explanation and with limited recourse for getting their names removed.
To Trump’s critics on the right, his stance speaks to a lack of principles and an eagerness to sacrifice conservative beliefs for political gain. All of Trump’s promises to conservatives — regarding the Supreme Court, religious liberty and economic policy — are subject to revocation if the political cost is too high, this behavior suggests.
Jay Cost of the the Weekly Standard, wrote on Twitter after Trump’s comments on the no-fly list: “Look how he threw the NRA under the bus tonight. Think he won’t do that with taxes and regulations? Of course he will!”
Trump allies see something different: a political savvy that avoids falling into Democratic traps, while leaving their candidate wiggle room to do what he wants later. And while the NRA has vehemently criticized Democrats for backing the terrorist list gun ban, NRA spokeswoman Jennifer Baker told Yahoo News that it might be worth considering if the idea comes from Trump.
“Last night, Donald Trump echoed the NRA’s concerns about denying innocent Americans wrongly on these lists their constitutional rights,” Baker said.
Baker said that “we all agree that terrorist and dangerous people should not have access to firearms or any weapon” but that Clinton “would use the Supreme Court to pave the way for extreme gun control at all levels of government including the banning of entire classes of firearms.”
Coupling support for the ban with a proposal to make the list fairer and more transparent was a shrewd move by Trump. The watch list has come under scrutiny since Omar Mateen shot and killed 49 people at the Pulse nightclub, wounding 53 others, with a Sig Sauer MCX semi-automatic rifle and a Glock pistol. Mateen, who pledged himself to Islamic radical group ISIS in a call to 911 operator, was on a watch list at one point before being removed after two separate FBI investigations in 2013 and 2014 found no reason to arrest him.
But helping people get off the Terrorist Screening Database, which has 1 million names on it, and the no-fly list, which has 80,000 names on it, is easier said than done. The system for being removed, called Department of Homeland Security Travelers Redress Inquiry Program (DHS TRIP), “is basically a black box,” the ACLU’s Hugh Handeyside told Yahoo News.
If an individual is repeatedly being given extra screening while traveling, or is routinely detained, they would “submit a petition” to DHS.
“The government considers it. They don’t tell you if you’re on or ever were on a watch list. They say any necessary changes have been made. So you know nothing,” he said.
As the DHS website itself states, “Security procedures and legal concerns mandate that we can neither confirm nor deny any information about you that may be within federal watch lists.”
Further, there is no process by which to find out if one is on the list, and for what reasons, and no venue in which to contest those reasons to a neutral arbiter.
The NRA said in August that a gun ban for people on the no-fly list is a “guilty-until-proven-innocent standard” that “is completely incompatible with our American system of justice and will do nothing to keep us safe.”
“Due process protections must be put in place that allow law-abiding Americans who are wrongly put on a watch list to be removed from it,” the NRA said. The organization supported an amendment offered by Texas Sen. John Cornyn that was intended to correct some of the problems with due process presented by the government’s watch lists.
The ACLU officially opposed the Cornyn amendment because they view the government watch lists as flawed in principle. But Handeyside said that the Cornyn amendment would have done the most of any legislation offered last summer to offer some recourse for people placed on government watch lists.
“The Cornyn proposal included a provision that would have allowed people to use what’s called the Classified Information Procedures Act (CIPA) to try to gain some limited access to those reasons” for being placed on a watch list, Handeyside said. “It provides some greater access to the reasons and because of that people are better able to respond.”
So there is an already established path for a president to do what Trump said, to make it easier for people on the list to get removed. But Democrats opposed the Cornyn measure, while backing other measures that Handeyside said did nothing to resolve due process concerns. Democrats felt the Cornyn amendment did not give federal officials enough time — a mere three days — to persuade a judge to bar a person on the list from buying a gun.
Trump and Clinton remain worlds apart in most ways on guns. She favors much wider controls on gun purchases than does Trump, and their choices of Supreme Court nominees would have great import for future rulings on the issue. But Trump’s position on the terrorist watch list is an example of how he sometimes defies party orthodoxy on a hot-button issue that might cost him politically.