This Week in Gun Rights is TTAG’s weekly roundup of legal, legislative and other news affecting guns, the gun business and gun owners’ rights.
Instagram bans pro-gun, pure political speech
Everyone is mad at social media companies these days, and they’re right to be angry. Social platforms like Facebook, Instagram, and Twitter are the 21st century equivalent of the town square, a place where opinions, both popular and unpopular, are shared with the rest of the public.
Since shortly after their founding, social platform executives have been subjected to intense scrutiny from the federal legislature, initially being haled in to provide testimony on what they were doing with regard to things like combatting terrorist recruiting and the sharing of illegal materials.
As a response, all of these companies increased content moderation and incorporated new reporting features enabling users to report content they believed to violate terms of service. Less terrorism and kiddie porn on the internet sounds like a good thing, right? Of course, censorship is never that simple.
Social media moguls have gone too far in their censorship of content, serving as the gatekeepers of speech. While I was on Instagram this week I discovered that #abolishtheATF was a “hidden” search term. Why? Because “the community has reported some content that may not meet Instagram’s community guidelines”.
There are three possible reasons for this act of censorship: 1) some content violated the platform’s entirely arbitrary guidelines; 2) anti-gun activists are reporting any pro-gun material they find in order to silence gun rights advocates; or 3) Instagram’s employees decided to ban the hashtag to chill speech of their own volition.
None of these possibilities should sit right with liberty-minded individuals.
Is the ATF moving to ban AR and AK pistols?
If you’ve been following gun news over the last month it’s reasonable to assume that you’ve heard about the ATF’s decision to play head games with Q, the company that manufactures the Honey Badger AR pistol, issuing and then temporarily suspending a cease and desist order claiming that the firearm is not a pistol, but a short barrel rifle. While we were waiting for the situation with Q to pan out, there were some new rumblings about the ATF contemplating a massive firearms reclassification which would affect the importation of certain arms.
For some background, the Gun Control Act of 1968 dramatically restricted the ability of Americans to import arms from abroad. The purpose of this Act, among other things, was to eliminate the availability of popular, affordable handguns. These arbitrary import restrictions, which focus on size and materials of handguns, did, and continues to restrict the ability of underprivileged Americans to acquire arms.
The GCA required any imported arms to be “generally recognized as particularly suitable for or readily adaptable to sporting purposes,” thereby completely ignoring the most fundamental reason Americans have a right to arms: for self-defense.
Over the years, the firearms the ATF has considers to be suitable for “sporting purposes” has ebbed and flowed, with handguns being the only arms with fairly straightforward criteria. Handguns were given points for being above a certain size, having adjustable sights, and other factors.
In light of this, to satisfy the tremendous demand Americans have for fine foreign-made arms, many companies abroad would sell firearms such as the Mp5, PE90, and more, configured as handguns, without stocks. These arms, as imported, could only be operated as a handgun, and fell squarely within the parameters of importability.
Concerns about the ATF abusing its unchecked (and illegitimate) interpretation “authority” to reclassify AR and AK pistols first arose this summer. According to a client alert issued by Wiley Rein, LLP, the ATF may implement a new “objective design features” test to determine whether a firearm constitutes a pistol for importability’s sake under the GCA. Features to be considered include:
- Incorporation of rifle sights;
- Utilization of “rifle caliber ammunition” (both 5.56mm and 7.62mm have been considered as such);
- Incorporation of “rifle-length barrel;”
- The “weapon’s heavy weight;”
- Ability to accept magazines that range in capacity from 20 rounds to 100 rounds, “which will contribute to the overall weight of the firearm”; and
- Overall length of the weapon which “creates a front-heavy imbalance when held in one hand.”
Of course, there have been heavy handguns since handguns existed, and the ATF’s importability standards favor heavier, longer-barreled pistols, awarding “points” for every inch. This move is more than profoundly ironic.
The GCA was not always so restrictive. The “sporting purpose” requirement, for decades, did not prevent importation of a variety of fine French, German, Chinese, Polish, and other arms that were massively popular up to 1989, where Bush 41 administratively tortured the requirement into an “assault weapon ban” of sorts. This resulted in sports like practical shooting being considered “not sporting activity” by the ATF, creating the extant mire that makes importing semi-automatic rifles nigh-on impossible.
Remember, though, the NFA’s definition of AOW excludes “pistols,” a different word than the GCA “handgun” question.
In any event, the simple fact is that the “sporting purposes” requirement ignores, and ultimately infringes upon, the core of our Second Amendment protection: the right to keep and bear useful arms in defense of ourselves and our property.
It looks like Michiganders will be able to carry at the polls
Constitutional rights are not mutually exclusive. You don’t have to choose between exercising your right to assemble and your right to due process of the law, and you don’t have to choose between being free from unlawful search and seizure and keeping and bearing arms (or at least you shouldn’t). The same holds true for voting and bearing arms; just because you’re going to the polls doesn’t mean you should have to sacrifice your natural right to self-defense.
Unfortunately, Michigan didn’t get the memo, and state Attorney General Dana Nessel decided that Michigan Secretary of State Jocelyn Benson had the power to ban the open carry of firearms at or near polling places. This is the same Attorney General who referred to pro-gun activists as cowards and called the right to bear arms at the state capitol a “stain upon the state.”
Unfortunately for the Attorney General (and fortunate for the rest of us), it seems Secretary Benson doesn’t have the power to enforce the ban; something that some sheriffs in the state had already recognized was impermissible under the state constitution.
Unsatisfied with the correct outcome, Benson and Nessel filed an emergency appeal to the state Court of Appeals. Of course their argument is totally nonsensical – they claim that the restriction “does not infringe any statutory right to open carry because it does not forbid the open carrying of firearms at any location where the Legislature has said that open carry is allowed.” I guess Benson and Nessel skipped their constitutional law class, because the right to keep and bear arms is a negative or intrinsic right – it exists without the crown’s grant.
That means that unless the Michigan legislature passes a law constraining the right to bear arms at polling stations, people can go about exercising their rights as they please. Maybe Nessel should have a chat with Delaware Attorney General Kathleen Jennings who, after seeing the light, issued a clarifying statement affirming that under Delaware law voters are free to carry arms while casting their ballots.
Crenshaw mad about people bearing arms in protest
Representative Dan Crenshaw, a fan of government surveillance and red flag laws, recently decried armed protesters during a NSSF townhall, saying that to bring new members into the gun community “[w]e need a lot less guys dressing up in their Call of Duty outfits, marching through the streets[.]” Apparently Crenshaw thinks that guys wearing plate carriers in public are bad news because they intimidate other people who might want to buy a gun. That’s just ridiculous.
America is about choice. People can choose to carry guns or not. People can vote for the candidate of their choice, drink, smoke, and gamble. People can wear a suit, Hawaiian shirts, or even a furry costume while they exercise their right to carry; it’s nobody else’s business what someone wears.
If Dan’s concern is marketing, he should work with an agency that helps gun companies and advocacy groups with their advertising and outreach instead of being critical of people exercising their right to protest.
Government forces man to decide between First Amendment and prison
This month an Arizona man was arrested for “unlawful assembly” while attending a protest in Phoenix. He was jailed without bond because he had outstanding charges from previous demonstrations. The prosecutors eventually offered a $100,000 bond, and subsequently, a lower bond, on the condition that the defendant not participate in future public protests.
If this doesn’t bother you, it should.
The very idea that the government has the right to prevent an individual from criticizing the government offends the First Amendment, which specifically protects the right to peaceably assemble and to petition the government for a redress of grievances. In other words, by letting this stand, we’re saying that the government has the authority to silence us when it doesn’t like what we have to say about its actions.
That should especially concern gun owners in an age where campaign contributions are placing anti-gun candidates in legislative and executive positions. But what about the outstanding charges? Well, “unlawful assembly” is frankly horse shit. It can be applied in just about any instance (and often is) even if protesters aren’t engaging in violent or dangerous activity, and creating the conditions justifying arrest for these violations is remarkably simple, a great example of this is the kettling technique applied by the NYPD.
While this is substantially less likely to occur if protesters are armed (looking at you, Dan Crenshaw), the ability of the government to arbitrarily arrest peaceful protesters and then restrain them from speaking against the government is a decent indication of our shift from liberty toward tyranny.
Backlog in gun sale processing interferes with RKBA
Gun sales are booming these days, even in the anti-gun jurisdiction of Hawaii. Unfortunately for Aloha State residents, Hawaii’s gun permitting restrictions have led to a backlog in gun sale processing. One Honolulu resident, a first-time gun buyer, reports that he started his gun permitting process in February and won’t be able to take home a firearm until next year.
The standard process requires three months to get a permitting appointment, two weeks to conduct a background check, and another three months to register the firearm, but thanks to the backlog it’s taking even longer.
By requiring Hawaiian residents to wait nearly a year to take home the firearm that they’ve purchased, the state is depriving them of their right to keep and bear arms and their ability to use their private property. If these buyers were purchasing land, this would be like permitting the government physically occupying the land without compensating the new owner, an action that would be impermissible under the Fifth Amendment.
If Hawaii’s registration program were constitutional and “keeps guns out of the hands of criminals” (or some other trope, your pick), then the Hawaiian government needs to either hire more people to process permit applications or better yet, repeal its licensing regime so that law-abiding individuals can exercise their constitutionally protected rights.
Was Giffords behind COVID gun shop closures in Virginia?
It shouldn’t come as a surprise to anybody who’s been following the anti-gun activities of the Virginia legislature and Governor Ralph Northam, but it seems that just ten days prior to issuing his executive order closing gun shops back in March, Northam was invited by Giffords to attend a dinner party and talk about anti-gun legislation.
That’s right, while everybody was sitting at home trying not to fall ill from COVID or infect their vulnerable family members, Northam went to a crowded dinner hosted by an anti-gun rights group, a dinner presumably attended by donors and other politically valuable guests, not even a fortnight before passing a draconian anti-business executive order that financially crippled the state’s residents and foreclosed their ability to purchase a firearm for self-defense.
There isn’t much else to say here but it bears repeating: anti-gun politicians don’t want to keep you safe, they want to stop you from ensuring your own safety and autonomy from the government.
The government wants to track your money, and that’s bad
When the government can’t find hard evidence that you’ve done something it doesn’t like, it tries to sidestep the Fourth Amendment by doing things like tracking your expenses and movements, building a web of information and activity sufficient for them to convict you of whatever ridiculous crime you’ve been charged with. The federal government is particularly fond of this technique. After all, they were the ones who invented RICO.
In modern times the tracking of money is conducted by the Financial Crimes Enforcement Network — FinCEN for short — which is a bureau within the Treasury Department. The primary mission of FinCEN is to aggregate information on financial transactions to fight things like money laundering, terrorism financing, and other financial crimes, and the network shares this information with other law enforcement agencies.
Currently, FinCEN flags any money transfers beginning or ending outside the United States that are $3,000 or greater, but now they want to reduce that threshold to a mere $250. Big deal, right? Actually, yeah, it’s a huge deal, because FinCEN shares information with other federal law enforcement agencies, and with a simple rule change FinCEN data could be used by other agencies like the ATF to track people who do things like purchasing gun parts from overseas or anyone using an offshore account to buy firearms domestically.
While it won’t affect the majority of gun owners, it is still a cause for concern because it provides the government with a mechanism to circumvent record-keeping limitations by allowing the use of forensic accounting data to determine firearms and accessories ownership.
Matt Larosiere is the Director of Legal Policy for the Firearms Policy Coalition.