This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights. For a deeper dive into the topics discussed here, check out this week in gun rights at FPC.
Blueprints for 3D printable guns remain in limbo
The Executive Branch has notified Congress of its intent to transfer regulation of small arms sales from the Department of State to the Commerce Department, as we covered before. What this means for distribution of 3D printable gun files, though, remains unclear. Throwing a wrench into the works, the Bureau of Industry and Security had this to say:
BIS shares the concerns raised over the possibility of widespread and unchecked availability of the software and technology internationally, the lack of government visibility into production and use, and the potential damage to U.S. counter proliferation efforts. In this final rule, BIS addresses the concerns raised about 3D printing of firearms by making certain technology and software capable of producing firearms subject to the EAR when posted on the internet under specified circumstances.
Whereas a previous ruling disclaimed regulating files at all, pressure from gun control groups seem to have pressed the hand of the BIS. It went on to say:
Commerce has reached the conclusion that U.S. national security and foreign policy necessitate that BIS maintain controls over the 3D printing of firearms when such software and technology is posted on the internet. The potential for the ease of access to the software and technology, undetectable means of production, and potential to inflict harm on U.S. persons and allies abroad present a grave concern for the United States. Without regulatory oversight, U.S. foreign relations and national security interests could be seriously compromised. For these reasons, this final rule provides that technology and software ready for insertion into an automated manufacturing tool that makes use of the software or technology to produce a firearm frame, receiver, or complete firearm is subject to the EAR, consistent with the regulation of such software and technology when previously controlled under the USML.
This comes after a long series of court battles surrounding the essence of these files. The Department of State’s position that it can regulate gun designs is legally inconsistent with a number of Supreme Court decisions, where the Court has determined that designs, including those in computer code, being compiled by an individual or group of individuals, is First Amendment protected speech.
Right now, it’s pretty unclear what is and is not covered by the final rule. Whether BIS loosens the noose on First Amendment conduct or not, the fight will continue; states such as New Jersey have enacted statutes which regulate possession and distribution of these files, and Firearms Policy Coalition is still fighting back.
Remember this move is characterized as a “relaxing” export controls. However, it doesn’t change the applicable statutory structure, it only shifts responsibility for firearm exports from a department with a track record of hampering transactions, to one that might be more interested in facilitating transactions.
As someone who has personally navigated the Department of State Directorate of Defense Trade Controls, I can tell you it would be hard for things to get any more sluggishly bureaucratic than they are now. The United States has one of the most restrictive import-export regimes in the world when it comes to arms, and it’s certainly harmed the industry.
Again, what this doesn’t do, however, is loosen the arbitrary and irrational restrictions on firearm imports that drive up costs for American gun owners. So leave the champagne chilling for now.
Senator introduces a bill to expand rights to travel with a firearm
Traveling with a firearm can be incredibly challenging. Despite living under a legal system that allegedly recognizes the fundamental right to keep and bear arms, we stress over what states we have to pass through. In many states, simply staying overnight or stopping to dine in a restaurant could render your cargo in violation of the state’s laws.
Senator Steve Daines of Montana has introduced a bill aimed at alleviating a number of concerns traveling gun owners face. The Lawful Interstate Transportation of Firearms Act amends the Firearm Owners Protection Act (FOPA), defining ‘transport’ to include “staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, or any other activity incidental to the transport.” Senator Daines’ stated goal is to give federal protection to legal gun owners that he says are harassed in less gun friendly states.
While well intentioned, FOPA is almost completely gutless. Not only did we have to endure the Hughes amendment, which took lawful machineguns out of the financial reach of most Americans, but the protections offered interstate travelers are unbelievably tedious. The firearm must be locked away, unloaded, in a compartment other than the glove box. So if you’re one of millions of Americans who drive a pickup… sorry, I guess.
Daines’ move seems nice, but the overall protections of FOPA are so thin, one is left to wonder if it really makes a difference. Maybe a better move would be to protect all peaceful interstate travelers from overzealous law enforcement? Or maybe do something for all of us pickup owners with nowhere but the cab to stow the cargo we allegedly have a right to possess.
Michigan passes bill to allow stun guns
Michigan is finally catching up with the rest of the country and the state of the law. Representative Michele Hoitenga of Michigan has advanced state legislation permitting any individuals over the age of 18 to possess a stun gun in the state. Prior to a 2012 Michigan Court of Appeals decision there was a total ban on stun guns, and in the years between, only individuals with concealed pistol licenses were permitted to possess them.
Banning stun guns conflicts with the United States Supreme Court’s ruling in Caetano v. Massachusetts, where the Court found that stun guns constitute bearable arms, and are thus their ownership is protected under the Second Amendment.
New Florida gun law exits State Senate Committee
The Florida senate is pushing Senate Bill 7028, which it claims would close the “gun show loophole” by creating a record-keeping system for private gun sales. The bill also appropriates $5 million for establishing a “statewide strategy for violence prevention[.]”
The Governor and Speaker of the House are rightly critical of this bill. For one, there is no such thing as a “gun show loophole.” If you’re in the business of selling firearms, federal law requires you to obtain a Federal Firearms License from the ATF. The fact that Floridians can transact with one another without asking the federal government for permission is not a “loophole,” but a Constitutional guarantee.
It’s also a massive waste of money. The bill creates what is essentially a state-level ATF Form 4473; it is duplicative, unnecessary, and might I add, if in paper form, not very green.
Guns being seized in airports
Have gun, will travel? Mind the airports. Hundreds of gun owners are being arrested for possessing firearms despite believing themselves to be complying with the law. Customers will dutifully check a firearm for their voyage, just to be detained at an airport in another, less friendly jurisdiction. Between La Guardia and JFK, 438 people have been arrested for possession since 2014.
In New York, this offense carries a potential penalty of three years in prison and/or a $1,000 fine. Fortunately 80% of these cases have resulted in a dismissal or have been pled down to disorderly conduct, but the risk is substantial. Nationally, the average fine is between $2,400 and $4,000, depending on the condition of the firearm, and the owner’s firearm is seized by the local police.
We’re unsure what harm an unloaded firearm locked in a hard case in an overhead carry-on can do, but we recommend that you: 1) check out the TSA website for guidance; and 2) double check the state and local laws wherever you will be traveling with your firearms.
Matthew Larosiere is the Director of Legal Policy at the Firearms Policy Coalition.