Jun 15, 2015
The proposed ITAR rule changes impacting free speech aren’t quite getting the media coverage we need to get the word out to our people, and this has me concerned. This article that appears in Defense Trade Law seems to agree with our interpretation that the proposed rule change is very broad. I’ve seen a few different opinions on this topic in the comment section over at The Firearm Blog’s post on the topic (in addition to a few trolls). The State Department had a press conference last week where the topic of their proposed ITAR regulations came up.
QUESTION: Did you get an answer the question I asked yesterday about these ITAR – revisions to the International Trafficking in Arms Regulations?
MR RATHKE: I did. I’m happy to go through that, if that would be helpful. You asked yesterday, Matt, about a June 3rd publication in the Federal Register by the State Department of proposed changes for public comment to several regulatory definitions under the International Traffic in Arms Regulations. These proposed changes in definition are part of our broader effort to streamline and modernize a Cold War-era regulatory system to better safeguard against illicit attempts to procure sensitive U.S. defense technologies.
These proposed definition changes – which, as I pointed out, are out for public comment – they seek to account for technologies that were not envisioned when the regulations were initially developed. Otherwise these definitions are intended to be a clarification of existing law and regulations, technical data, and detailed schematics that are required for the manufacture or production of defense articles already require U.S. Government authorization before they can be disseminated by U.S. manufacturers.
Now in contrast, general descriptions, public discussions, and imagery of defense articles, including firearms, have never been the subject of – to these regulations and they would remain unaffected under these proposed revisions. As I said at the start, they were published in the Federal Register for public comment. That’s a period that runs through August 3rd of this year. So I’d refer people to the text of the Federal Register notice for details about providing —
QUESTION: Okay. So these rules would not apply to private citizens, only to manufacturers – and only to highly sensitive technical details? Is that —
MR RATHKE: They apply to the technical data and detailed schematics for the production of defense articles.
QUESTION: So they don’t apply to private citizens.
MR RATHKE: Well, they apply to anything that relates to those areas of subject matter, whether discussed by —
QUESTION: Okay. Well, the concern that had been raised by the Second Amendment groups is somehow this is going to restrict or stop or ban discussions about gun – about firearms —
MR RATHKE: Well, I go back to the – also the point that general descriptions – that is general, not technical and detailed ones – general descriptions or public discussions and imagery of defense articles would – have never been subject to these regulations and wouldn’t —
QUESTION: So the concern that has been expressed is misplaced, yes?
MR RATHKE: Yes, that would be our view.
Okay, anything further? Thank you.
QUESTION: Thank you.
None of us ever thought just a picture of a gun or “general descriptions or public discussions and imagery of defense articles” was going to get us in hot water. The issue is a lot more complicated than that. It’s become pretty apparent to me on reading and re-reading this proposed rule change, and the existing ITAR rules, that this is targeted squarely at 3D printing, CNC milling, and Cody Wilson more specifically.
Notice when asked whether it would apply to the public at large, he basically concedes the issue. The big problem is that previously, we were all protected by the public domain exception to the rule. I’d encourage everyone to follow that link, and note subsection (b) which is reserved. This public domain exception is obviously dated in the Internet age, but it’s pretty apparent if one publishes the information through “unlimited distribution” that material is the public domain. Now, for the reserved subsection (b) The new proposal spells out what is to be done with it:
(b) Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from:
(1) The Directorate of Defense Trade Controls;
(2) The Department of Defense’s Office of Security Review;
(3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or
(4) Another U.S. government official with authority to allow the technical data or software to be made available to the public.
By my reading, if you shared a straight-up CAD drawing of an AR-15 or 1911, you’d be fine because those designs are already in the public domain. However, if you developed your own wildcat load for a cartridge, or you came up with a novel design for a rifle, pistol, shotgun, scope or accessory, or you created a modification to an existing design, you’d have to seek clearance from the State Department prior to publishing it. It’s going to be exceedingly difficult for people who aren’t lawyers to understand the difference. My opinion is that this rule is meant to stifle people’s ability to discuss gun making with 3D printers or CNC milling machine’s online, due to the legal complexities and risks involved in doing so. Despite the fact that we shared no CAD drawing or plans in our experimentation with this technology on this blog, I still do not know whether my posts on the subject would fall under ITAR pre-clearance or not, and I’m a good bit more legal savvy than most hobbyists.
Jun 8, 2015
Charles C.W. Cooke reports on Governor Christie’s latest pardon of yet another person who found himself caught up in the web of the Garden State’s byzantine gun regulations. Christie still has not announced whether he’s going to run in 2016. Despite the fact that he’s been better on guns than most every other New Jersey governor, he’s not going to overcome the fact that he’s a governor in a state where people die waiting for gun permits. That’s not a small issue. For Carol Brown, whatever Second Amendment rights anyone will claim she had did not effectively exist for her. She would have been no worse off living under a regime where guns were simply banned entirely, because she died waiting for fingerprints to get back from the FBI.
Personally, my biggest beef with Chris Christie is that he’s got a “law and order” streak a mile wide, and I’ve grown tired of that branch of the “conservative movement.” He also does not hide his contempt for libertarians, so I don’t see he’s really working to earn my vote. But I will give him credit where it is due, pardoning Steffon Josey-Davis was the right and decent thing to do.
Jun 8, 2015
A reader asked about the public comment period for the proposed rule by the State Department to muzzle free speech for gun owners. Here is what the proposal says about public comments:
DATES: The Department of State will accept comments on this proposed rule until August 3, 2015.
ADDRESSES: Interested parties may submit comments within 60 days of the date of publication by one of the following methods:
Comments received after that date may be considered, but consideration cannot be assured. Those submitting comments should not include any personally identifying information they do not desire to be made public or information for which a claim of confidentiality is asserted because those comments and/or transmittal emails will be made available for public inspection and copying after the close of the comment period via the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Comments submitted via www.regulations.gov are immediately available for public inspection.
So you have until August to submit a public comment. I encourage everyone to do so. Remember, they are legally required to address serious comments. If they receive even tens of thousands of them, it will seriously interfere with their ability to promulgate this regulation according to the Administrative Procedure Act (APA). If they are going to do this power grab, I see no reason to make it easy for them!
Jun 8, 2015
The nomination for the
Police State, I mean State Police, Commissioner has been recalled as of this morning. It looks like it’s a good news/bad news scenario.
Marcus Brown will continue as Acting Commissioner, giving him the ability to continue to abuse his power violating the rights of Pennsylvanians to criticize him and his decision relating to his office. Brown has a history of publicly backing Martin O’Malley’s extreme gun control proposals. The agency he ran in Maryland was accused of targeting gun owners to find any reason to pull them over and search them. The bad news is that he is free to continue these practices (those documented on video and alleged) here in Pennsylvania for the moment.
The good news is that the Pennsylvania Senate has to formally accept the recall, and they have indicated they will not unless Gov. Tom Wolf agrees to nominate someone else. That would get Brown out of the office, and may we’d be lucky enough that he’ll leave Pennsylvania. The flip side of that coin is that anyone nominated by Wolf is unlikely to be friendly to Second Amendment rights.
UPDATE: And that didn’t go well for Wolf… The Senate moved forward with a vote regardless of the recall request and voted Marcus Brown down. That’s good news for those of us who have a little respect for the rule of law.
I’ll be honest, I don’t know what the process is now that Brown has officially been turned down by the Senate. I would hope it means he’s hauled out of his office as Acting Commissioner right now, but I realize that’s a bit of hopeful thinking.
Jun 8, 2015
One of the pieces of conventional wisdom you hear in New Jersey gun ownership circles is that the NJ Judiciary gutted the 30 day requirement for issuance of a pistol purchase permit or a Firearms Purchasers ID Card, but you never get a reference to the case in question, or the details. So, spent a few minutes googling, and after running my search, I found this case.
We read the statutory scheme as requiring a chief of police to withhold action on an application for a firearms purchaser identification card until receipt of the requisite SBI and FBI fingerprint reports.
We thus conclude that the inability of the chief of police to obtain the requisite SBI and FBI reports within the thirty day period constitutes “good cause” for a denial, but does not require the chief of police to deny the application on that account. He must withhold rendering a decision on the application until the fingerprint reports are obtained from the SBI and the FBI.
If the reports so obtained do not disclose a criminal conviction or any other disqualifying disability, the “good cause” for the denial of the permit evaporates, and an identification card must be granted immediately. Conversely, if the SBI or FBI report yields information disclosing good cause for the denial of a permit, the applicant should be notified in timely fashion.
So, the Berlin Township’s Chief of Police saying that they hadn’t received the fingerprint results means he was required to not issue under this decision. So, all the armchair lawyers who are suggesting 1983 suits, please don’t. It’ll be an expensive waste of time. Instead, push the NJ legislature to go to NICS.
Jun 7, 2015
I’m a bit late to the discussion about a new proposal from the State Department that appeared in the Federal Register on Wednesday, but I wanted to take time to read through the whole thing, make sure I understand it, and ensure that the proposal was really as bad as the righty media is making it out to be. I can confidently say that none of what is said in this article at the Washington Examiner is exaggerated, or hyperbolic in an attempt to make the Administration look bad. It really is this bad.
This is what the NRA has to say about it, and after reading the proposal, it’s a pretty accurate summary:
In their current form, the ITAR do not (as a rule) regulate technical data that are in what the regulations call the “public domain.” Essentially, this means data “which is published and which is generally accessible or available to the public” through a variety of specified means. These include “at libraries open to the public or from which the public can obtain documents.” Many have read this provision to include material that is posted on publicly available websites, since most public libraries these days make Internet access available to their patrons.
The ITAR, however, were originally promulgated in the days before the Internet. Some State Department officials now insist that anything published online in a generally-accessible location has essentially been “exported,” as it would be accessible to foreign nationals both in the U.S. and overseas.
With the new proposal published on June 3, the State Department claims to be “clarifying” the rules concerning “technical data” posted online or otherwise “released” into the “public domain.” To the contrary, however, the proposal would institute a massive new prior restraint on free speech. This is because all such releases would require the “authorization” of the government before they occurred. The cumbersome and time-consuming process of obtaining such authorizations, moreover, would make online communication about certain technical aspects of firearms and ammunition essentially impossible.
Penalties for violations are severe and for each violation could include up to 20 years in prison and a fine of up to $1 million. Civil penalties can also be assessed. Each unauthorized “export,” including to subsequent countries or foreign nationals, is also treated as a separate violation.
Gunsmiths, manufacturers, reloaders, and do-it-yourselfers could all find themselves muzzled under the rule and unable to distribute or obtain the information they rely on to conduct these activities. Prior restraints of the sort contemplated by this regulation are among the most disfavored regulations of speech under First Amendment case law.
I can offer you this, and 311 other reasons why this proposal should scare the ever loving hell out of you. I mostly post about the politics of the gun issue, which should be safe under this proposal, but even I would have to remove or revise a few hundred posts (not that I intend to, the State Department toadies that came up with this fascist BS can FOAD). I can’t imaging how many counts a more gun oriented site would rack up.
It’s my opinion that this petition for rule making is aimed squarely at Cody Wilson and Defense Distributed. The powerful take their imagined prerogative to control quite seriously, and they don’t particularly appreciate someone trying to throw a wrench into their carefully controlled, petty fiefdoms. This is the backlash I’ve been waiting for, and have been concerned about. That The Empire would Strike Back was a fore-drawn conclusion.
So what kind of position are we in to stop this usurpation of our First and Second Amendment rights? First, we can use the public comment period. The more serious comments we flood them with the better chance it will cripple their ability to implement the regulation, as we did with the M855 ban. This also can indicate to lawmakers there is passion, and we can use that leverage to get a budget rider to prevent implementation of the rule.
What about the courts? This is not the first time Uncle Sam has tried to do something like this. Back in the 1990s, we had a flight over ITAR regulation of cryptography, though in that instance, they simply classified it as a munition. This proposal is actually far more broad than that. The encryption issue was resolved when the Clinton Administration backed down and reclassified encryption as a commerce control item rather than a munition when court challenges didn’t go well for the government. Those two cases, Bernstein v. United States and Junger V. Daley, resulted in losses for the government position in the 9th and 6th federal circuits respectively . However, the Supreme Court never definitively ruled in either of those cases, and like I said, 311 reasons you should be worried about this.
This is very dire, friends. If this moves forward there is a very good chance I, and many of my other fellow bloggers, forum admins, and YouTubers will end up in federal prison while the Courts sort this out. Don’t ever let anyone ever tell you what these people want are “common sense” regulations. They are fascists. That is no longer arguable. There will be a lot of firearms enthusiasts serving prison time for essentially the same crime they would be charged with had they traveled to Iraq and sold plans for a thermonuclear weapon to ISIS. Fundamentally transformed!
This news has to spread far and wide if we’re going to stop this terrible thing. I’ve even put it on my personal Facebook that I only rarely use to post political stuff. People have to know about this.
UPDATE: If you want to submit a public comment on this regulation, I have compiled all the information from 1400-AD70, which is the code for this Retition for Rule Making, on how to submit a public comment.
Jun 5, 2015
Via Breitbart, a story of someone whose life may have been saved by gun control. And of course there will be no consequences for the police chief or anyone else in government. Because guns cause domestic violence or something.
A restraining order is a piece of paper, and when seconds count, the police are minutes away.
May 20, 2015
It used to be gun rights advocates were the ones calling for the abolition of the Bureau of Alcohol, Tobacco, and Firearms. Now progressives are catching on to what a dandy idea it really would be to roll the ATF into the FBI. Why? Because this would be a disaster for gun rights, and they are starting to figure that out.
The FBI has a long, sorry history of unspeakable abuses against the civil liberties of Americans, and along with that is a history of getting away with it. Not only do they get away with it, but they get away with it while making the public and politicians adore them. The FBI is much more competent at manipulating lawmakers, policymakers, judges, and juries to get what they want, and if they take on ATF’s functions, what they will want are more gun control laws.
I think it was a mistake to put even part of ATF under DoJ dominion, and you can thank Republicans for that one. ATF’s role should be that of a regulatory and tax collecting agency. It should have the culture of a regulator rather than an enforcer. Sure, in the days when even the Department of Education has SWAT teams, there will always be “the enforcers” in any regulatory agency, but the FBI have no regulatory role, they are only enforcers and domestic spies. The FBI is very good at railroading people if they decide to target you. Remember, this is an agency started by one of the most dangerous men in the history of this country.
May 18, 2015
Bob Owens is reporting the Obama Administration has announced restrictions on the federal program to deliver surplus military equipment to police departments. I have mixed feelings about this. On the one hand, I do tend to think making the department go to their civilian overseers for approval is not unreasonable. On the other hand, I think it’s not a bad thing, generally speaking, for this equipment to end up widely distributed to local communities, rather than just setting in federal government warehouses. Even if you’re a real wookie suiter “insurrectionist,” it’d be a hell of a lot easier to liberate equipment from your local PD than it would be from the feds if the S were to ever HTF.
May 15, 2015
Evan Nappen gets a judge to rule that the law means what it says.
In a published decision binding upon all New Jersey municipalities, the New Jersey Appellate Division has confirmed that New Jersey municipalities may NOT require added forms for firearm permit applications beyond the state forms.
It’s a little thing, but little things add up. Also note, “funded in part by the NRA Civil Rights Defense Fund.”