The First Amendment and Gun Control
The Obama Administration recently released a proposal announcing regulatory changes to the International Traffic in Arms Regulations (ITAR):
Stop Obama’s Planned Gag Order on Firearm-Related Speech
It’s happening again— President Obama is using his imperial pen and telephone to curb your rights and bypass Congress through executive action.
Even as news reports have been highlighting the gun control provisions of the Administration’s "Unified Agenda" of regulatory objectives (see accompanying story), the Obama State Department has been quietly moving ahead with a proposal that could censor online speech related to firearms. This latest regulatory assault, published in the June 3 issue of the Federal Register, is as much an affront to the First Amendment as it is to the Second. Your action is urgently needed to ensure that online blogs, videos, and web forums devoted to the technical aspects of firearms and ammunition do not become subject to prior review by State Department bureaucrats before they can be published.
To understand the proposal and why it’s so serious, some background information is necessary.
For the past several years, the Administration has been pursuing a large-scale overhaul of the International Traffic in Arms Regulations (ITAR), which implement the federal Arms Export Control Act (AECA). The Act regulates the movement of so-called "defense articles" and "defense services" in and out of the United States. These articles and services are enumerated in a multi-part "U.S. Munitions List," which covers everything from firearms and ammunition (and related accessories) to strategic bombers. The transnational movement of any defense article or service on the Munitions List presumptively requires a license from the State Department. Producers of such articles and services, moreover, must register with the U.S. Government and pay a hefty fee for doing so.
Also regulated under ITAR are so-called "technical data" about defense articles. These include, among other things, "detailed design, development, production or manufacturing information" about firearms or ammunition. Specific examples of technical data are blueprints, drawings, photographs, plans, instructions or documentation.
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.m>
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.
But then, when did the U.S. Constitution ever deter Barack Obama from using whatever means are at his disposal to exert his will over the American people and suppress firearm ownership throughout the nation?
Time is of the essence! Public comment will be accepted on the proposed gag order until August 3, 2015. Comments may be submitted online at regulations.gov or via e-mail at DDTCPublicComments@state.gov with the subject line, "ITAR Amendment—Revisions to Definitions; Data Transmission and Storage."
Finally, please contact your U.S. Senators and Member of Congress. Urge them to oppose the State Department’s attempt to censor online speech concerning the technical aspects of firearms and ammunition. Use the "Write Your Lawmakers" feature on our website or call the Congressional Switchboard at (202) 225-3121.
Now, I’m not going to say that the NRA has a vested interest in hyping this, but let’s look at another point of view.
About That Obama Gag Order on Firearm Related Speech
I’ll grant that such regulations, when taken to their illogical extreme, could be interpreted to mean that any and all discussions of an even vaguely technical nature about guns might be considered to fall under this umbrella. And since the "public domain" now includes the internet, rather than just public libraries and newspapers, there is theoretical cause for concern. With that in mind it certainly doesn’t hurt to have the public pushing the administration for clarification of the language and I don’t fault anyone for wanting to get involved in that effort.
But as much as it goes against my nature to give the Obama administration the benefit of the doubt on anything, I’m really not sure how deep this particular rabbit hole is. The ITAR regulations, while perhaps drawn up in a clumsy and overly broad fashion, seem clearly designed to keep a lid on sensitive technical data for advanced defense equipment. Let’s face it… you’re not supposed to be publishing instructions on how to build a nuclear bomb on your blog, and the same goes for advanced fighter jets, smart bombs and a host of other emerging technologies which we would like to keep from the hands of our enemies for as long as possible. They aren’t (or at least shouldn’t be) concerned with how to put together a hunting rifle, reload your own ammunition, or any other technologies which have been widely available around the world since early in the last century.
The second reason why I didn’t fly into a panic over this one is the sense that, even if this actually was the intention of the White House, (and I’m not denying that they would probably like to shut down gun discussions) the odds of success in the courts would have to be essentially nil. Stop and think about it for a moment. If those rules are in place and somebody – let’s say me, for example, since I blog about guns a fair bit – publishes a post which includes instructions on how to break down and store your AR-15 along with an accompanying diagram, what does the government do? They would have to actually come and arrest me and take me into federal court. When the charges were read, the resulting uproar would be deafening. Even were I to be convicted, the case would quickly go to the very top on appeals and the obvious implications over free speech and Second Amendment rights would have it tossed out on its ear. And that failure would be a massive embarrassment for the administration.
I don’t find the current White House crew to be geniuses. But by the same token, I don’t think they’re that stupid.
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