Tag: second amendment

Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets

Late yesterday, U.S. District Court Judge Robert Lasnik issued a temporary restraining order (TRO) blocking the release of design files for 3D-printed guns. The order comes in response to a lawsuit filed by a number of state attorneys general who claim that the Trump administration acted unlawfully in reaching a settlement in a lawsuit brought by Defense Distributed, a company that produces digital blueprints for 3D-printed guns, and the Second Amendment Foundation. Judge Lasnik found that states were likely to suffer irreparable harm—the standard for a TRO—if the digital blueprints became distributable via a website, and he felt that the situation was such an emergency that the order was issued within a day of when the suit was filed.

This is a deeply silly order. People have been making guns out of various objects for centuries. Watch this video of someone making a shotgun out of two pieces of commonly available tubing.

Zip guns like those have been used for centuries. They’re easy to make and easy to learn how to make. And, as long as you follow certain guidelines (such as not making a machine gun), such guns are perfectly legal to make. As the ATF website says: “No, a license is not required to make a firearm solely for personal use.”

Moreover, distributing plans for zip guns is a form of speech protected by the First Amendment, as it should be. Here’s a website telling you how to make one, and here’s a YouTube video telling you how to make one in less than two minutes. Judge Lasnik’s TRO is the equivalent of shutting down those websites and videos because telling people how to make zip guns creates an “irreparable harm.”

3D-printed guns are little better than those zip guns. The Libertor is a one-shot pistol that, if it works, fires a low-powered bullet with an effective range of maybe 20 feet. More often, it might just explode in your hand. As one commentator writes,

The Liberator’s bullet emerges going very slowly and wobbling or tumbling due to lack of spin. It might go almost anywhere, though not very far, and is unlikely to do much damage to anything it manages to hit. It’s a bit better than holding up a cartridge in a pair of pliers and banging the cap with a centrepunch or similar, but not much.

The Songbird is another design that works slightly better, but still wouldn’t be your first choice for doing anything except demonstrating to your friends that you built a gun that doesn’t blow up in your hand.

These guns are little better than a musket or a muzzle-loading flintlock pistol, which anyone can purchase without a background check. Yes, that’s right, criminals all over the country can purchase something like this replica English Civil War cavalry pistol and wreak havoc. Sure, they’ll need to get some black powder, some wadding, and some musket balls, but those are widely available, especially in the internet age. Or, if they want more than one shot, they can purchase this 1860 model Colt revolver replica, also without a background check, which would certainly be good enough to rob a store. So why aren’t people constantly robbing stores with the guns of Jesse James or Captain Jack Sparrow? Because it would be stupid and more expensive than purchasing this professionally manufactured Hi-Point 916 for $149.00. And if someone is prohibited from purchasing a gun from a licensed dealer, perhaps because they’re a convicted felon, they can acquire a gun in the myriad ways criminals acquire guns. No street-level gun dealer is waiting for the TRO to be lifted so he can start flooding the streets with in-demand single-shot plastic pistols. The concept is too silly to contemplate.

The idea that allowing websites to distribute digital blueprints for 3D-printed guns creates “irreparable harm” to the states is as silly as saying allowing people to distribute plans for zip guns does “irreparable harm.” The fear created by the phrase “3D-printed guns” should not be allowed to override common sense.

Repeal the Second Amendment?

The NRA cites this pronouncement by the Brady Center’s co-founder, Pete Shields:  “The first problem is to slow down the number of handguns being … sold….  The second problem is to get handguns registered.  The final problem is to make possession … totally illegal.”  There’s the proof, says the NRA, that liberals just want to get rid of our guns and kill the Second Amendment.  That narrative had traction among hardcore gun rights people, but Heller actually defused the argument by affirming that the Second Amendment is here to stay, and it secures a fundamental, individual right.  

Then comes Justice Stevens — for many years, the intellectual leader of the liberal wing of the Court — and breathes new life into the NRA’s storyline.  What better evidence that the left wants a gun-free America?  A liberal icon calls for repeal of the Second Amendment – a proposal that will never be implemented, and would have limited effect if it were.  The Second Amendment doesn’t prevent states from enacting reasonable regulations; and its repeal wouldn’t prevent states from allowing assault weapons or high capacity magazines.  It’s state law, not the Second Amendment, that “calls the shots.”

But if so, then why the Second Amendment?  To prevent government from constructively banning a large class of weapons in common use for self-defense.  That was tried in DC (until Heller), and in Chicago (until McDonald), and perhaps in a few other localities.  That’s what would happen again if the Second Amendment were repealed.  And that’s why the NRA’s slippery slope argument still resonates with millions of gun owners.

Maryland School Shooting Complicates the School Safety Movement

This week, a seventeen-year-old student at Great Mills High School in Maryland brought a Glock 17 handgun to the school and wounded two students before being stopped by Blaine Gaskill, the school resource officer. The event came weeks after the Valentine’s Day massacre in Parkland, Florida, which set off a deluge of public outcry for “school safety” reform. The problem, though, is that nobody can agree on what “school safety” reform is. Before this week, activists have been pushing for stricter gun control, while others pushed various measures to enhance school security.

School shootings are a very unique and complicated problem, further frustrating the likelihood of any coherence coming out of this outcry. They are, in fact, very rare, and generally planned far ahead of time. This makes it difficult for any gun-control law to affect a school shooter. In general, gun-control laws tend to dissuade criminals on the margins–the guy who is vacillating about whether to kill his wife but who may decide to do it if given a gun. School shooters are not that type of criminal. Moreover, Maryland has some of the strictest gun-control laws in the nation. In addition to existing federal law—including the federal prohibition on handgun transfers to persons under 21—Maryland’s gun laws include:

  • A comprehensive “assault weapon” and “large capacity magazine” ban.
  • A universal 10-round magazine limit.
  • Background check requirement for all handgun transfers.
  • An exhaustive application process as a prerequisite to being permitted to purchase a handgun.
  • Mandatory registration of all handguns, and mandatory licensing of all handgun owners.
  • Prohibition on purchasing more than one firearm per month.
  • A seven-day waiting period for all handgun and “assault weapon” transfers.

In spite of all those laws, the shooter, who could not legally own the handgun under Maryland law (it was his father’s), still shot two innocent students. When laws are being demanded to ensure school shootings never happen again, we must always ask whether a new law would have actually prevented the harm. The paradigm school shooting in the United States, Columbine, happened during the federal assault weapon ban, using compliant weapons.

Supreme Court Continues Its Gun-Shy Ways

Over a decade ago, James Hamilton was convicted of a felony in Virginia, for which he served no jail time. Since then, the state of Virginia has restored all of his civil rights, including the right to possess firearms. In the years since then, Hamilton has worked as an armed guard, firearms instructor, and protective officer for the Department of Homeland Security. Despite never exhibiting any violent tendencies and leading a stable family, the state of Maryland, where Hamilton now resides, forbids him from possessing firearms because of that decade-old Virginia conviction.

Hamilton challenged Maryland’s absolute prohibition on the possession of firearms by felons as applied to him, arguing that, while there may be reasons for forbidding some felons from owning firearms, the prohibition made no sense when applied to him, a person who committed a non-violent felony over a decade ago. The Fourth Circuit, however, decided that Hamilton was not eligible to bring an as-applied challenge to Maryland’s law, leaving states in the Fourth Circuit wide latitude to abuse the constitutional rights of a huge class of citizens and leaving those citizens with no way to vindicate their rights.

RIP Don Kates, Second Amendment Pioneer

Don B. Kates, a pioneer in the revival of the Second Amendment, has died at 75. Eugene Volokh writes in the Washington Post that 

Don wrote “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Mich. L. Rev. 204 (1983), the first modern article in a major law review arguing for the individual-rights view of the Second Amendment, and since then he wrote or co-wrote over 15 more law review articles, as well as writing, co-writing or editing four books. His work has been heavily cited both by courts and by scholars.

His writing career may have begun with Inquiry magazine, published in the 1970s by the Cato Institute. His article “Handgun Control: Prohibition Revisited” appeared in Inquiry’s second issue, December 5, 1977. For some reason that piece appears to have been excerpted in the Washington Post three years later.

Libertarian movement historian Brian Doherty expands on his seminal influence:

As explained in an excellent 2014 essay on Kates’ contributions to modern Second Amendment thought by California-based gun law scholar C.D. Michel, “Kates was a nearly lone voice in the constitutional law wilderness….Kates’ work, both as a constitutional scholar and criminologist….largely ignited the counter revolution against the American gun control movement” by arguing and demonstrating that the Amendment was certainly intended to protect an individual right to possess weapons.

Kates’ article became an ur-source to later articles by more academically well-connected authors, such as Sanford Levinson’s 1989 Yale Law Review article “The Embarrassing Second Amendment,” that spread the new understanding of that Amendment as guaranteeing an individual right to the more liberal side of legal academia.

As Michel notes, “All the scholarship that Kates indirectly ignited eventually fueled legal briefs filed before the Supreme Court in District of Columbia v. Heller.”

According to Wikipedia, Kates grew up in the San Francisco Bay Area and later attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler, an experience that informed his understanding of the need for armed self-defense. After three years of teaching constitutional law, criminal law, and criminal procedure at Saint Louis University School of Law, he returned to San Francisco where he practiced law and began writing on criminology and guns. Dave Kopel has more on his background and influence here.

Watch Don Kates talk about gun control in this 1989 speech at Libertarianism.org.

President Obama’s Gun Controls Didn’t Make Kalamazoo Shooting More Difficult

Last week, a man in Kalamazoo, Michigan went on a shooting rampage, killing six people seemingly at random.

The suspected shooter is a man named Jason Dalton, who reportedly owns several firearms.  Up until this point, Dalton had no criminal record and has apparently never been adjudicated mentally ill.  In legal terms, this means that Dalton would have had no problem passing a background check to purchase his firearms.

Despite this fact, President Obama took time this week to suggest that his gun control measures make it more difficult for would-be spree shooters to acquire firearms.

Speaking to the National Governor’s Association, President Obama claimed:

As many of you read, six people were gunned down in a rampage in Kalamazoo, Michigan.  Before I joined all of you, I called the mayor, the sheriff, and the police chief there, and told them that they would have whatever federal support they needed in their investigation.  Their local officials and first responders, by the way, did an outstanding job in apprehending the individual very quickly.  But you got families who are shattered today.

Earlier this year, I took some steps that will make it harder for dangerous people, like this individual, to buy a gun.  

Supreme Court Wasn’t Serious about the Second Amendment

While the media attention will focus on the Supreme Court’s ruling in Town of Greece v. Galloway – the legislative-prayer case – the more interesting (and consequential) decision issued today was the Court’s denial of review in Drake v. Jerejian, the Second Amendment case I previously discussed here. In Drake, the lower federal courts upheld an outrageous New Jersey law that denies the right to bear arms outside the home for self-defense – just like the D.C. law at issue in District of Columbia v. Heller denied the right to keep arms inside the home – and today the Supreme Court let them get away with it.

Drake is but the latest in a series of cases that challenge the most restrictive state laws regarding the right to armed self-defense. Although the Supreme Court in Heller declared that the Second Amendment protects an individual constitutional right, lower federal courts with jurisdiction over states like Maryland and New York have been “willfully confused” about the scope of that right, declining to protect it outside Heller’s particular facts (a complete ban on functional firearms in the home). It’s as if the Supreme Court announced that the First Amendment protects an individual right to blog about politics from your home computer, but then some lower courts allowed states to ban political blogging from your local Starbucks.

Yet each time, the Supreme Court has denied review.

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