Guns and Gag Orders

The International Trafficking in Arms Regulations (ITAR) is the Federal law that prevents the export of military items such as submarines. Unfortunately, Congress decided it would be wise to use the exact same tools and regulations to prevent the export of data related to military items and military services, i.e. training on how to use an item. Because ALL rifles and handguns are considered military items, the ITAR affects firearm owners greatly. Now there is a proposed rule change in the ITAR that will make it even worse for gun owners. (Please note the link is to a Government website that is finicky at best: you may have to try multiple times to successfully load the site.)

But How does this affect me?

Have you bought a new gun lately? Pulled an old one out of the closet to go shoot? In either instance did you find yourself wanting to know the proper technique to breakdown and clean the firearm? Easy, just search youtube for a five minute video explaining and showing everything!

At your fingertips on the internet is a world of information on the maintenance, repair, and other information on your firearm. Information that the Government does not want there because a foreigner may see it. (The disassembly, cleaning, and reassembly of a Colt Single Action Army is of national security interest!)

Those videos could be illegal if the Directorate of Defense Trade Controls (DDTC), the Government bureaucrat in charge of enforcing the ITAR, has his way. The DDTC issued a proposed rule on June 3, 2015 soliciting comments. Among a host of other things, this rule makes it clear that you need government permission before posting a gun video online. Further, if you share a video or other information that you should know was not posted legally then you are guilty of a felony!

But what of the Public Domain exception?

The proposed rule has a nice built in exception for information that is in the “public domain.” But the rule goes on to provide a requirement for Government approval to publish information in the “public domain” and without approval information published does not enter the “public domain.”

So information is in the public domain if it is published and accessible to all unless of course it was published and accessible to all without Government permission, in which case the information, despite its universal availability, isn’t in the public domain and you can be punished for sharing it, but of course only if you knew the information was not in the public domain. . . Do what!?! The Government is saying: Information in the “public domain” isn’t if we say so.

With a standard this fuzzy what knowledgeable person will want to post or share any firearm videos? The public domain becomes meaningless when nothing can enter it without Government approval.

Constitutionality: Where’s My Right to Free Speech?

All of this raises several constitutionality concerns based upon the First Amendment. The Government prohibition on speech under ITAR is both content-based and a prior restraint. Each are reasons for strict scrutiny when evaluating the law for compliance with the Constitution. Further, prior restraints are presumptively invalid.

What makes this more troubling is that the speech prohibited involves the Constitutionally protected substantive right to own and bear arms. This is another reason for heightened scrutiny!

The Bad News on your (shrinking) First Amendment

Courts are known to let the Government get away with murder in the name of national security. Prior challenges to the constitutionality of ITAR have ended in the law being upheld, court opinions to the contrary being thrown out, and rehearings never scheduled. (For a full discussion, and one that considers the printing of firearms, see Anthony M. Masero, I Came, ITAR, I Conquered: The International Traffic in Arms Regulations, 3D-Printed Firearms, and the First Amendment, 55 B.C.L. Rev. 1291 (2014)).

Theoretically, ITAR should be an unconstitutional restriction on First Amendment rights in the application against the public sharing of technical data. However, Courts are loathed to take up national security issues, and Courts addressing ITAR related questions have bent over backwards to avoid strict scrutiny and uphold the law without even a thoughtful review.

Depending on the courts to vindicate your rights is a cumbersome, inefficient, and time consuming endeavor. Very few people have the money or the determination to take on a decade(s) long battle to challenge the Government’s encroachment on fundamental rights. After all, you’ll spend your money in the fight, and they’ll spend your money in the fight. Guess who loses?

What Can You Do?

Speak up! Comment! Make your thoughts known. Tell the DDTC to stop clowning around with your Constitutionally protected rights.

Every proposed rule is open for comments, and the DDTC will have to address every one of these comments. They do not have the manpower to handle thousands (or better tens of thousands) of comments. Swamping the bureaucracy is one way to curb this expansive claim to power.

What should you say? 1) Remind the DDTC that you have Constitutionally protected rights that this rule would trample. 2) Note that this proposed rule is immature because the DDTC has not finished overhauling the United States Munition Lists (USML) Categories I-III. (I-III are firearms and ammunition. The DDTC could change the definitions here to exempt most firearms from the ITAR, but they have chosen not to act while overhauling the other 18 categories on the USML.) 3) Raise concerns about the Catch-22 nature of the public domain definition and exception. 4) Heavily protest the creation of a new crime of sharing something in the public domain. (Information should be in the public domain when published, regardless of how it got there. You cannot put a genie back in the bottle.)

Liberty is lost in small steps. Let us raise resistance against this step and say that America still cares. You can post your comments here.