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Bad News for Sharing Gun Information Online

The Court of Appeals for the Fifth Circuit has refused to grant a preliminary injunction against the State Department to prevent it from enforcing ITAR rules against Defense Distributed.

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.

Jesus, you’d think they were talking about a plans for a Pershing Missile here, not sharing publicly available data on how to manufacture small arms. It’s not like these are national defense secrets. We’re talking about information that is in the public domain! The government even asserts that it’s only Internet publication that’s problematic, and that it’s still within rights to publish this kind of thing through older media.

Judge Edith Jones, a Reagan appointee, was the dissenter in the case. In the majority were Judge Eugene Davis, a Reagan appointee, and Judge James Graves, an Obama appointee. From Judge Jones dissent:

This case poses starkly the question of the national government’s power to impose a prior restraint on the publication of lawful, unclassified, not- otherwise-restricted technical data to the Internet under the guise of regulating the “export” of “defense articles.” I dissent from this court’s failure to treat the issues raised before us with the seriousness that direct abridgements of free speech demand.

Reading her dissent, she really gets it. Judge Davis is 80 years old. Does he really understand the implications of what the State Department is doing here? From Judge Jones dissent:

Defense Distributed and its amici challenge the regulations’ interpretation of “export” and the “public domain” exception to the definition of “technical data.” Although the majority opinion adopts the State Department’s litigating position that “export” refers only to publication on the Internet, where the information will inevitably be accessible to foreign actors, the warning letter to Defense Distributed cited the exact, far broader regulatory definition: “export” means “disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States of abroad.” There is embedded ambiguity, and disturbing breadth, in the State Department’s discretion to prevent the dissemination (without an “export” license) of lawful, non-classified technical data to foreign persons within the U.S. The regulation on its face, as applied to Defense

Distributed, goes far beyond the proper statutory definition of “export.” Even if “export” in AECA could bear a more capacious interpretation, applying the State Department’s regulatory interpretation to the non- transactional publication of Defense Distributed’s files on the Internet is unreasonable. In terms of the regulations themselves, how this expansive definition of “export” interacts with the “public domain” exception is unclear at best. If any dissemination of information bearing on USML technical data to foreign persons within the U.S. is potentially an “export,” then facilitating domestic publication of such information free of charge can never satisfy the “public domain” exception because newspapers, libraries, magazines, conferences, etc. may all be accessed by foreign persons. The State Department’s ipse dixit that “export” is consistent with its own “public domain” regulation is incoherent and unreasonable. Even if these regulations are consistent, however, attempting to exclude the Internet from the “public domain,” whose definition does not currently refer to the Internet, is irrational and absurd. The Internet has become the quintessential “public domain.” The State Department cannot have it both ways, broadly defining “export” to cover non-transactional publication within the U.S. while solely and arbitrarily excluding from the “public domain” exception the Internet publication of Defense Distributed’s technical data.

If the majority’s reasoning holds, it’s bad bad news for tinkerers everywhere. A lot of topics are considered defense articles. This goes way beyond guns. It will be a great offense to the First Amendment if this ruling holds.

Supreme Court Delivers Gun Case

This is not a Second Amendment case, but rather one of statutory interpretation with the Lautenberg Amendment, which prohibits people convicted of Misdemeanor Crimes of Domestic Violence (MCDV) from possessing firearms. The question is whether reckless conduct qualifies as a MCDV, or whether the federal statute requires knowing, intentional conduct. The Court ruled that the statute makes no distinction. Justice Thomas dissented, with Sotomayor joining parts I and II of his dissent. Part III of Justice Thomas’s dissent argued that because this is dealing with a fundamental constitutional right, that the Court should read the statute narrowly to avoid the constitutional issue. From Thomas’s dissent:

Finally, and most problematic for the majority’s ap- proach, a person could recklessly unleash force that reck- lessly causes injury. Consider two examples:

1. The Text-Messaging Dad: Knowing that he should not be texting and driving, a father sends a text mes- sage to his wife. The distraction causes the father to rear end the car in front of him. His son, who is a passenger, is injured.

2. The Reckless Policeman: A police officer speeds to a crime scene without activating his emergency lights and siren and careens into another car in an intersec- tion. That accident causes the police officer’s car to strike another police officer, who was standing at the intersection. See Seaton v. State, 385 S. W. 3d 85, 88 (Tex. App. 2012).

In these cases, both the unleashing of the “force” (the car crash) and the resulting harm (the physical injury) were reckless. Under the majority’s reading of §921(a) (33)(A)(ii), the husband “use[d] . . . physical force” against his son, and the police officer “use[d] . . . physical force” against the other officer.

But this category is where the majority and I part com- pany. These examples do not involve the “use of physical force” under any conventional understanding of “use” because they do not involve an active employment of something for a particular purpose.

This strikes me as correct, and an unintended consequence of the majority’s thinking. Here’s another passage from Part III of Thomas’ dissent:

A mother who slaps her 18-year-old son for talking back to her—an intentional use of force—could lose her right to bear arms forever if she is cited by the police under a local ordinance. The majority seeks to expand that already broad rule to any reckless physical injury or nonconsensual touch. I would not extend the statute into that constitutionally problematic territory …

… Today the majority expands §922(g)(9)’s sweep into patently unconstitutional territory. Under the majority’s reading, a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership. And while it may be true that such incidents are rarely prosecuted, this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.

Worth noting that no other justice was willing to join that.

Not all news from New Jersey is bad

Scott Bach wins one in New Hampshire for out-of-staters.

Connecticut Ruling Not As Bad as First Feared

Following up on an earlier post today, after seeing the opinion online and reading it, it’s not as bad as it first appeared. I should have waited. The Court in Connecticut did not reach any decisions on the merits of the PLCAA claim. If I’m reading this correctly, the Court ruled that the Remington’s et al’s assertion that the court had no jurisdiction over the case was incorrect, and if they wanted to make their claim they would have to do so in a Motion to Strike, rather than a Motion to Dismiss.

PLCAA reads, “A qualified civil liability action may not be brought in any Federal or State court.” The defendants tried to argue that this means the state court had no jurisdiction over the case at all since it’s not a qualified civil liability action. But the judge ruled that many of the defendants claims speak to the legal sufficiency of the plaintiff’s complaint, and if they are going to argue legal sufficiency, they can’t do that in a Motion to Dismiss which argues that the Court in question has no jurisdiction to hear such arguments.

I don’t know Connecticut’s rules, but it would seem that Remington’s attorneys can take another bite of the PLCAA apple without having to go to trial to do it.

Judge Allows Bushmaster Suit to Move Forward

The lawsuit brought by victims of Sandy Hook families sued Remington arguing that it amounts of negligent entrustment to sell AR-15s to civilians. Really, the correct thing to do in this case by the law is to grant the motion to dismiss, but a judge has now declined to do that. It’s not uncommon for judges to refuse to follow the law when it comes to matters like this, so I am not surprised. Protection of Lawful Commerce in Arms Act (PLCAA) generally provides immunity to Federal Firearms Licensees (FFLs) from suits resulting from the criminal misuse of their products, but it allows exceptions for negligence per se and negligent entrustment. Of course, the idea of selling a legal product to customers could possibly be considered negligent entrustment is a fantastic notion, but probably provided this lawless judge with enough grounds to write an opinion that didn’t sound completely like extending a middle finger to Congress and the rule of law.

In truth we were in trouble when we couldn’t get this case removed to federal court, where judges are less likely to ignore the law this blatantly. Superior Court judges in Connecticut are not elected, but they serve at the whim of the Chief Court Administrator. With Malloy threatening their budget, there might have been the fear that this is a bad time rock the boat and displease the governor. The law is never above politics.

Greg Abbott’s Constitutional Proposals Would Have Sabotaged Heller & McDonald

Texas Governor Greg Abbott is going to ask the Texas State Legislature to call for a Constitutional Convention, growing the number of states who have already called for one. In addition, he’s laid out a number of proposed new amendments in excruciating detail. Key features are:

  1. Prohibit Congress from regulating activity that occurs wholly within one State.
  2. Require Congress to balance its budget.
  3. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
  4. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
  5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
  6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
  7. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
  8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
  9. Allow a two-thirds majority of the States to override a federal law or regulation.

Most of these would represent improvements, but I think number six is a bad idea. It’s a bad enough idea I’d reject the whole proposal just to get rid of this bad idea. If this had been in place, Heller and McDonald would have both lost. You could go through and find numerous other cases that have expanded civil liberties that would have lost.

I’ve never agreed with conservative arguments about judicial activism and judicial restraint. Much of what conservatives call judicial activism are judges doing their jobs. If you ask me, the Court is far too respectful of democratic prerogatives of legislatures.

Perhaps the answer is to subject the federal courts to more democratic accountability. I’ve become convinced more recently that perhaps the founders were wrong to make federal judges appointed for life, with no recourse for the people. I’m open to action on this front, but not the kind of populist, judicial minimalist garbage Abbott is proposing here.

Other people’s political capital

From an LA Times piece, we get the following quote on why President Obama is looking into unilateral executive action on gun control:

“If this succeeds, it will save lives. If it fails legally, the cost is only political,” [Senator Christopher] Murphy [D-Conn] said. “When you’re talking about weighing lives saved versus political capital lost, it’s a no-brainer.”

What Senator Murphy says about political capital is true – the cost of this effort will be counted in political capital. What he’s not saying is that it’s not the President’s political capital that will pay; it’s the political capital of the Democratic party. The President has spent a lot of political capital over the past 7 years, but very little of it has been his own. It’s been the capital of the Democratic party. And by gambling with the Democratic political capital, he’s been able to force the Republicans to match, raise, or fold. If he wins, he gets the credit (and the capital). If he loses, well, it’s all someone else’s fault. Which is a neat trick. I’m still a little surprised that the congressional Dems are willing to let him draw on their capital to put his name on successes, but leave Congress the failures. The last few years, sticking Congress with the failures means sticking the Republicans with it, admittedly, but still.

This is another one of his Heads I win, tails You lose gambits. He’s going to try, and if it doesn’t work, then it’s the work of The Enemy, who wants Dead Babies.Which makes sense for his future aspirations (global talking head), but is yet another drip of corrosive in the mechanism of politics. Après moi le déluge, indeed.

Circuit Court Upholds Florida’s “Docs v. Glocks” Law

For a lot of reasons, I have to agree with Eugene Volokh’s opinion on the matter. I don’t agree that enacting a restriction on one constitutional right to protect another is the right thing to do. But it is a strategically smart thing to do if you’re interested in sticking it to the organizations that represent the medical profession, and have been promoting all manner of anti-gun propaganda via the power and influence doctors have over society. That’s what I think the strategy was here. I can’t support it, but I can see the logic.

All this would not be an issue if the doctors would agree that the practice of medicine should not be politicized in the way it has.

I’m shocked, SHOCKED, that the ATF made this determination

(With my best Capt. Renault impression).

So, the ATF went and sent a letter (PDF link) to the manufacturer of Can Cannons that said their product was not a firearm, but that attaching it to a rifle receiver made the rifle a Short-Barreled-Rifle, or attaching it to a pistol receiver made the pistol an AOW. Cue Internet Rage(TM).

As you might have gathered, I’m not at all surprised by this determination. This device does not, after all, stop the receiver from being a “firearm,” being basically a variation on a blank-firing-adapter. And it’s shorter than 16″ (short-barreled), and a smoothbore (AOW for pistol). This is a consequence of the Can Cannon being a accessory to what is legally a firearm. If they had instead built it as a complete unit, completely unable to fire conventional ammo, things might be different. As it is, though, an AR-15 doesn’t stop being a firearm when you mount a Can Cannon on it.

This is just another reminder of how mind-numbingly stupid the patch to NFA’34 to allow handguns, but still effectively ban anything that could be considered a handgun but isn’t actually a handgun. (That sentence hurt just as much to write as it does to read, I assure you, but was the only way I could express how I understand the history of the Act.)

On the other hand, I am a little surprised they didn’t just rule the assembled weapon as a Destructive Device (that bore is way bigger that 0.50″)


EDIT: The ATF Determination Letter

State Sovereignty is a Limited Government Value

This is sort of an off topic post, but it ties back to guns in the end, I promise. By now most of you have heard the controversy over Rowan County Kentucky Clerk Kim Davis not issuing same-sex marriage licenses, and being jailed for contempt of court for refusing to obey court orders to issue them. A lot of conservatives have been arguing that to jail Ms. Davis, but not to jail anyone involved in failing to enforce immigration laws in sanctuary cities, amounts to a double standard. On the surface, it might seem like the same issue, but they are subtly different, and legally quite different.

First, we go back to the time before the Civil War, and before the 14th Amendment. Under the original constitution, the states were understood to enter into the union with their sovereignty intact, with both the federal government and state governments being separate sovereigns. So how does this work in practice?

In 1793, Congress passed the first Fugitive Slave Act. A number of states actively undermined the Act by refusing to enforce it. In the early 1840s, the Commonwealth Pennsylvania was sued, and the case went to the U.S. Supreme Court. The Court ruled that while federal law was supreme over state law in this area, the states were under no obligation to enforce federal warrants against runaway slaves, or to otherwise enforce federal law. This is pretty much directly applicable to federal immigration warrants. San Francisco is no more obliged to enforce federal law than Pennsylvania was in 1842. But this is not the end of our story, because something very calamitous happened, and that was the Civil War.

The 13th, 14th, and 15th Amendments are known collectively as the Reconstruction Amendments. The Thirteenth Amendment abolished slavery, and the Fifteenth Amendment provided voting rights for black men. But the Amendment we’re really interested in here is the 14th, which provides that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This was a radical idea. So radical the Supreme Court would mostly redact it out of the constitution. It wasn’t restored until later in the 20th century, and even today it is not fully restored. What the 14th Amendment essentially did was waive the states sovereignty to a limited degree. When it comes to protecting rights and equality before the law, the federal government is supreme over any state law. This was the intention of the people who drafted the amendment in the first place.

Kim Davis is in jail for contempt because the Supreme Court ruled that same-sex couples had a due process right to marriage under the 14th Amendment. San Francisco officials are not because immigration is a matter of ordinary federal law. A lot of ink has been spilled about whether the Obergefell decision was right or wrong, or about whether it should have been decided as an equal protection issue rather than the strange reasoning Justice Kennedy used in his opinion. But that’s neither here nor there, because legally same-sex marriage is now a right, and state officers can’t interfere with its exercise by denying marriage licenses (one can wonder why marriage licenses are constitutional in the first place, but that’s another post).

I said I would tie this whole thing back into guns. Well, I won’t tie it back, the Supreme Court already did in 1997 when it handed down its opinion in Printz v. United States, an NRA funded case challenging the constitutionality of the Brady Act. The Brady Act made a key constitutional error, in that before NICS was in place, it required local police and sheriffs to conduct background checks on prospective gun purchasers. Most police departments were overwhelmed, because the gun control crowd has never understood that buying gun isn’t solely the domain of a small handful of nutty extremists, but something ordinary people do every day. Jay Printz was a Montana sheriff, and sued the federal government arguing that as an agent of the State of Montana, he was under no obligation to enforce the Brady Act. This case bought us into the modern era of the anti-commandeering doctrine.

The idea that the states can’t be forced or commandeered to enforce federal law is pro-freedom. As gun owners, the states act as a bulwark against future infringement by the federal government on our Second Amendment rights. Sure, the feds are always free to enforce their own laws, but the truth is the feds don’t have the resources to counter widespread civil disobedience on the part of gun owners to whatever gun control schemes they may concoct in the future. Enforcement of federal law generally requires willing cooperation by the states. There will be times when you might not agree with a state’s defiance of federal law or policy, but as someone who believes strongly in a limited federal government, I would never argue the states simply don’t have the right.

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