Thursday, May 9, 2013

1st Amendment On The 2nd Amendment

By Dave Dargo

Based on legal advice, we don't offer our classes to non-U.S. citizens.  The legal advice stems from the International Traffic in Arms Regulations (ITAR).

ITAR is in the news today because of Defcad and their published files that enable a 3D-printer to "print" a gun, specifically their "Liberator" handgun.  A law student by the name of Cody Wilson has been promoting the ability to manufacture gun components by "printing" them with 3D printers.  These components include magazines, AR-15 lowers and a completely, well almost completely, plastic pistol.

The U.S. Department of State issued a letter to Defcad and Mr. Wilson ordering him to take down the files while everyone determines if Mr. Wilson is in violation of ITAR.

Now, I need to, in a short space, explain how this complex set of regulations has come into being and how it affects Mr. Wilson, our company and you.

The Arms Export Control Act was passed in 1976 and gives the President of the United States the authority to control the import and export of defense articles and services.  The U.S. Constitution grants a power to the national government to regulate international trade.  Therefore, it's perfectly acceptable to have a law that regulates what types of things can be imported and exported.  If the national government wants to prohibit the export of nuclear weapons, lasers, machine guns or even water guns it is permitted to do so through explicit language in the U.S. Constitution.

The executive branch of the U.S. government, which falls under the President, creates the regulations that put into place the restrictions on the import and export of defense articles and services.  In the letter to Mr. Wilson, the U.S. Department of State goes on to explain that items that are regulated include "...information in the form of blueprints, drawings, photographs, plans, instructions or documentation."

Thus, by publishing a file that a 3D printer can use to produce a gun component, Mr. Wilson, allegedly, is in violation of ITAR.  Mr. Wilson will need the government's permission in order to publish the files.

You'll notice that the letter also includes the word "instructions".  Now these instructions aren't just how to build a gun but also how to use a gun.  Therefore, according to legal advice we've received it is a potential violation of ITAR to teach a foreign national how to fire a gun and we would need the U.S. government's permission to teach a non-U.S. citizen how to use a gun.

Getting permission from the government before being allowed to tell someone something is called prior-restraint.  A U.S. Supreme Court case, Near v. Minnesota, held in 1931 that prior restraint is unconstitutional.  In that case the court did carve out an exception related to national security:
"The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' (Schenck v. United States). No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government."
The government is trying to argue that such an exception to the 1st amendment applies in this case.  Our legal counsel is concerned that teaching someone how to safely use a gun falls under the national security exception to the prior restraint doctrine.

Let's think about this.  I mean, let's really think about this concept.

Are we really prepared to permit the national government to carve out such a large exception to the 1st amendment that we can't teach a foreign national how to safely handle a gun?  It is perfectly legal to manufacture one's own gun.  Are we really prepared to permit the national government to prevent us from telling each other how to do so?

If I were to publish how to fire an automatic weapon on the internet should I be worried about the national government coming after me?  Really think about that.  Even if you hate guns, even if you hate me are you willing to say it's O.K. for the national government to come after me for something I said or published?

I find it hard to imagine that the U.S. Supreme Court would uphold the constitutionality of a regulation that promoted the prior-restraint of speech unrelated to direct national security issues such as publishing the dates of troop movements (part of the exception in Near v. Minnesota).

The problem with prior restraint and why it's so evil is that it has a tremendous chilling effect on the sharing of ideas - the very bedrock of freedom itself.

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