Republicans did not hesitate to criticize Obama over the attack, but the party was starting to discover a newfound skepticism for the no-fly list, now that a Democrat was in the White House and in charge of the list. That shift was helped by the election of a crop of libertarian-leaning legislators in the 2010 Tea Party wave, and growing evidence of the TSA’s inefficacy. The change wasn’t unanimous—you can read the conservative pundit Michelle Malkin saying no-fly enforcement was too lax in 2010—but something had changed. (It can’t have helped that Weekly Standard writer Stephen Hayes was somehow placed on the list, too.)
Obama didn’t personally make a great deal out of the no-fly list itself during his 2008 campaign for president, but he did criticize the Bush administration for overreach on civil liberties and excessive secrecy. Yet when the administration was sued by a man who believed he was on the list, it refused to say whether or not the man was on the list. As Nick Baumann of Mother Jones put it, “2008 Obama would have slammed 2014 Obama for this.”
When arguing that those on the no-fly list shouldn’t be able to buy guns, Obama and his allies have pointed to a 2011 call from American-born al-Qaeda member Adam Gadahn for would-be jihadis to take advantage of lax American gun laws. Still, it’s unclear how large an effect such a change would have on actual terrorism. The GAO found in 2010 that between February 2004 and February 2010, people on the terror watchlist were subject to firearm or explosives background checks in 1,228 cases. They were allowed to make their purchases in 1,119 of those cases, because there was noting that legally prohibited the buys.
In a smaller subset of the data, between 2009 and 2010, the GAO found that “several” people on the no-fly list were allowed to buy guns. So far, there’s nothing to suggest that Syed Rizwan Farook and Tafsheen Malik, the suspects in the San Bernardino shooting, were on the no-fly list, either.
The major objection among Republican politicians at the moment to Obama’s proposal is not that it wouldn’t prevent many gun purchases. It’s that it would infringe on people’s Second Amendment rights.
While that’s true, it somewhat misses the point. There are plenty of reasons why people in the United States can have their firearm rights abridged. The broader problem is not that the people on the no-fly list are being denied their rights; it’s that they’re being denied their rights without due process. The lack of due process for being placed on the list or getting off forms the basis for an ACLU case against the government, Latif, et al. v. Holder. In 2014, a federal court ruled that the redress process for people on the list was unconstitutional. The government revised its redress system, but the ACLU has again challenged that process as unconstitutional because of its lack of due process.
On Sunday, Rubio said, “There aren’t 700,000 terrorists operating in America openly on watch lists.” In fact, very few of the 700,000 he lists are in the U.S., but even accepting the principle, Rubio might, on some level, be making an argument against Obama’s gun proposal. But mostly, it’s a compelling case against the essence of the no-fly list as it exists today.