ITAR Restrictions Expanding to Cover Firearms Info?

Frank Ettin · Jun 8, 2015

Averageman said:
Clearly these are being used as legislation under the guise of mere "rule" changes.
The idea that the legislative branch should take a back seat to a bureaucrat at an agency where he/she was appointed to this position and not elected by the citizens should be the issue....

However, Congress by legislation authorized the President to make these decisions. See 22 USC 2778(a)(1):

...the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services.....

That, by the way, is core to the rule making power of an administrative agency. An agency can adopt regulations only when it has been authorized to do so by Congress.

old lady new shooter · Jun 8, 2015

X-Rap said:
I don't see that as a problem, the problem is having people the government doesn't want having guns (criminals) in a position that they can have them and use them against society.
The last thing I want is the government knowing all who own a gun, seems like the perfect reason for a ghost gun.

Yes, but the government or at least the current administration can't stand the idea of ANYBODY having a gun without them knowing about it.

Historically registration is what has enabled subsequent confiscation.

barnbwt · Jun 8, 2015

Having had a full day to think about this development...

I had a well thought-out post on what I have come to understand the current situation is, what the changes are, the best guess I can come up with at their implications, and arguments to pester the State Dept and our reps with, but the site shredded it*, so... I guess I'll try again later.

In the mean time, I just want to mention that hours of my layman's scrutiny as well as the opinions of a number of much more qualified individuals haven't appreciably changed my understanding of the massive expansion in censorship threatened by this rule change. It also doesn't seem that many prominent bloggers, news sites, forum discussions, or posters have conclusively determined there is nothing to worry about with these new regulations. It's about the same ratio of doom-sayers and fuggedaboutits as when the M855 thing first got going.

That to me raises all sorts of red flags.

So while I try to recollect my thoughts as best I can, I want to say that I think it is important we come up with well-reasoned, cogent arguments opposing this rule (regardless of whether you happen to think it's 'overblown' or whatever) so that large numbers of forum-going gunnies can construct quality objection letters to submit to the State Department. What I know for sure so far, is that ITAR is a far more complex issue than Armor Piercing ammunition, and that the State Department has far greater legal and political forces at its disposal. Turning this around will be difficult, I'm afraid, but perhaps by spreading as good an understanding of the situation as possible (since God knows the media won't, and most gun bloggers/posters aren't capable of the legal analysis required to hash this --myself included for sure) we can delay this rule adoption long enough to get another guy in the White House that we can perhaps deal with amicably. I think that's the best we can do.

TCB

*ETA: I've been informed my phrasing here suggested action on the part of the moderators; no, a site refresh glitch (since my machine is set to store no cookies, I am logged out periodically when they expire) ate the post

Art Eatman · Jun 8, 2015

What is discussed on any firearms website which is not already known to the gun-makers of Peshawar?

Given the military equipment, including computers, which we have already provided to ISIS, what could the average US civilian tell to anybody which is not already known?

High tech scopes and night vision equipment are already available from China and Russia, and are sold here.

mokin · Jun 8, 2015

I don't think this has anything to do with foreign countries or even who owns guns. I think this is about us gun owners being able to contact each other and form an organized resistance to the political powers that would have us disarmed.

We got together and raised a huge stink when 5.56 ammo was on the verge of being outlawed. "They" don't want to go through that again.

Cump · Jun 8, 2015

barnbwt said:
. . . I want to say that I think it is important we come up with well-reasoned, cogent arguments opposing this rule (regardless of whether you happen to think it's 'overblown' or whatever) so that large numbers of forum-going gunnies can construct quality objection letters to submit to the State Department. What I know for sure so far, is that ITAR is a far more complex issue than Armor Piercing ammunition, and that the State Department has far greater legal and political forces at its disposal. Turning this around will be difficult, I'm afraid, but perhaps by spreading as good an understanding of the situation as possible (since God knows the media won't, and most gun bloggers/posters aren't capable of the legal analysis required to hash this --myself included for sure) we can delay this rule adoption long enough to get another guy in the White House that we can perhaps deal with amicably. I think that's the best we can do.

TCB

Agreed. The content of this thread has been helpful. A consolidated outline of important considerations from one of our legal minds would be excellent, with permission to share with others planning to write comments.

old lady new shooter · Jun 8, 2015

barnbwt said:
They can absolutely be sold, even without a serial, face to face, legally, in states without specific requirements for thise things (universal checks, registration, purchase permit, etc.)

I believe they cannot be sold in California, certainly not unless transferred through a FFL dealer.

barnbwt · Jun 8, 2015

"High tech scopes and night vision equipment are already available from China and Russia, and are sold here."
In large part because they stole defense articles, but yeah. These folks are very clever about finding ways around ITAR (shell corporations, social engineering, and I'm sure embassy activities), essentially all under the umbrella "industrial espionage" but gunz.

It is a very real concern (esp. going forward) but the problem is that ITAR doesn't seem to stop much of it. The whole point of ITAR was preserving our 'tactical advantage' with respect to strategic technology (much like 'the children' and 'homeland security,' 'tactical advantage' is another one of those things that makes government lose all sense of place or purpose --even the slightest whiff of threat causes it to become completely unglued), but at some point the corrosive moral consequences of censorship become a 'tactical disadvantage' themselves. Namely, that our small arms industry withers and dies on the govt-contractor teat just like Britain's, France's, and Germany's.

"I believe they cannot be sold in California, certainly not unless transferred through a FFL dealer."
Yes, because they have mandatory background checks in that state. But there are no federal restrictions (so long as the gun does not cross state borders and the gun is compliant with NFA/etc), just like how bullet buttons aren't required anywhere besides that wretched state.

TCB

RX-178 · Jun 8, 2015

Well, we all seem to be much clearer on this issue than when we started, thanks in no small part to Mr. Ettin.

Next question is how much closer are we on a comment letter to object to this proposed regulation?

There does still seem to at least be a valid concern regarding internet censorship, which despite being a little more.... I guess fear-mongery than the regulation strictly mandates, is the only way I can see to get people who aren't staunchly pro-gun to object to this as well and that couldn't hurt.

Cee Zee · Jun 8, 2015

Coming at this from a life long study of the political process this smells like the government trying another end run around the constitution. Either we have free speech or we don't. It's been clear for some time what the administration would like to do concerning firearms. They want to do damage to the industry any way they can. So IMO the main thing to take away from this is to expect the worst until we are shown different. And above all make your voice heard to politicians who depend on votes to an extent. I've already made calls and sent emails.

barnbwt · Jun 8, 2015

"...I guess fear-mongery than the regulation strictly mandates"

I'm not yet convinced it is. As far as I can tell, all the stuff on the web now will be considered public domain, but all new technical information would be considered a defense article. I just don't see it any other way. I also think we have to assume they will push this thing at least as far as the plain language allows. When they say technical data on defense articles, they are talking about AR15s, as well as any other product deemed strategically useful to us/others. The thirty year old field manual won't be restricted, but your analysis of the heat-handling capability of the fancy new bolt-coatings certainly would be.

If someone can convince me that new research/analysis, or even detailed discussion of new or existing platforms won't fall under ITAR purview, please do; I'd love to lose this queasy feeling.

TCB

barnbwt · Jun 8, 2015

Please post your letter if you think it's any good, Cee Zee. The State Dept may care that each comment they receive be unique, but our representatives sure won't.

TCB

RX-178 · Jun 9, 2015

Barnbwt, it seems to me you're kinda in the driver's seat here on the letters although Cee Zee might make that task a little easier for you.

While we're all working on the actual comment letters, I'm going to spread some awareness about this (as a case of internet censorship) amongst non-gun communities.

Frank Ettin · Jun 9, 2015

Cee Zee said:
...this smells like the government trying another end run around the constitution. Either we have free speech or we don't....

We need to avoid getting sidetracked on useless, meaningless arguments.

Regulations are subject to attack just as are statutes. One basis for attack is that the regulation on its face or as applied is unconstitutional. If you want to attack the regulations on that basis, to be colorable any such attack needs to be founded on established legal principles supported by applicable judicial authority.

And it is well settled law that constitutionally protected rights are subject to limited regulation; so no, we do not have unfettered free speech. But one can argue that the regulations on their face are not within the established scope of permissible regulation of rights protected by the First Amendment. A facial challenge is always a tough sell.

A perhaps more fruitful line of attack would be that ambiguities and vagaries in the proposed regulations invite applying them in ways which would not be constitutionally permissible. And of course any such attack needs to be supported by established legal principles supported by applicable judicial authority.

blarby · Jun 9, 2015

This doesn't answer my question at ALL !

mope540 · Jun 9, 2015

(chuckling)...you folks were warned back in '07 of what was to come if a certain person was elected as POTUS. Looks like those "paranoid tin foil hat wearers" were right all along.

barnbwt · Jun 9, 2015

"If you want to attack the regulations on that basis, to be colorable any such attack needs to be founded on established legal principles supported by applicable judicial authority."

"A perhaps more fruitful line of attack would be that ambiguities and vagaries in the proposed regulations invite applying them in ways which would not be constitutionally permissible. And of course any such attack needs to be supported by established legal principles supported by applicable judicial authority."

I don't suppose you have identified any areas you find particularly troubling? My concern is I simply am not suited (trained/qualified/experienced) to drawing properly supported conclusions merely from the plain text. I think we need an ITAR expert or something, since this is again, a very complex area, and we need to be 'right' as opposed to just loud this time, since the State Dept are heavy hitters. I have identified areas of vagueness that trouble me, and I think the nature of the threatening expansion, but it is still hard to put into words in such a way a congressman will understand.

What we need are specific demands to ask for, and specific impacts to warn congress of. I'm working on a list, and I hope others are too.

TCB

TwinReverb · Jun 9, 2015

I'll believe it when I see it. I'll keep listening to news on it, but this wouldn't be the first time the NRA has freaked out over nothing, if it really is nothing.

I'll still contact my representatives, however.

barnbwt · Jun 9, 2015

Read the source document, then, and tell us what you see. Better yet, try to show how reloading and gunbuilding can still be freely discussed under the terms presented.

hso · Jun 9, 2015

I think an argument could still be made:

I work within ITAR requirements as do other members of THR. Your example of a video game featuring weapons or equipment won't fall under ITAR UNLESS that game presented classified or sensitive information (classified or sensitive weapons detailed plans and manufacturing methods, materials specs, etc.) that itself fell under ITAR. That would require the game company to have access to the classified or sensitive information and to have accurately depicted it so that is could be used by opponents and enemies of the U.S.. Just a depiction of a weapon won't or mention of an item can't.

A lack of understanding of ITAR and a basic mistrust of the government isn't enough by itself to trigger this sort of paranoia about revisions to ITAR being used to attack the 1st or 2nd Amendments. OTOH, the trope that non legislative action by recent administrations to erode the rights of the citizens would make ITAR changes subject to being used to abuse 1st and 2nd Amendment rights can lead some to assume that because ITAR regulates international trade in materials, equipment, and information that are important for national security reasons that such abuse is inevitable. That isn't a given, nor is it probable if you understand what ITAR does and does not do.

hatt · Jun 9, 2015

Looks like the time to find and download this information is now.

I6turbo · Jun 9, 2015

barnbwt said:
...and we need to be 'right' as opposed to just loud this time, since the State Dept are heavy hitters. I have identified areas of vagueness that trouble me, and I think the nature of the threatening expansion, but it is still hard to put into words in such a way a congressman will understand.

What we need are specific demands to ask for, and specific impacts to warn congress of. I'm working on a list, and I hope others are too.

TCB

I disagree. Loud works just fine when it comes to elected officials. There's no particular need for us to sit around wringing our hands while trying to figure out the vagueness, legalese, and double-speak intentionally (no doubt) built into this ITAR expansion. As Jonathan Gruber exposed, they like to confuse those few citizens who are trying to pay attention while they slip their agenda into law.

When Nancy Pelosi said on national TV, while toilet-plunging Obamacare over the threshold, "We have to pass it so you can find out what's in it" I thought that surely people would rebel against that type of stuff-it-down-our-throats governance. Apparently not.

barnbwt · Jun 9, 2015

That was in reference to the State Dept, which will blaze straight ahead unless convinced they will rapidly lose in the courtroom. Courts don't care how loud you are (usually)

TCB

I6turbo · Jun 9, 2015

barnbwt said:
That was in reference to the State Dept, which will blaze straight ahead unless convinced they will rapidly lose in the courtroom. Courts don't care how loud you are (usually)

TCB

You were speaking of specifics of which to warn Congress. State can be impacted by Congress, and Congress only cares about threats to their re-election. Loud works for Congress, and is about the only tool we have. We don't need to become Congress' legal adviser. We only need to show them the open grave on the other side of the next election and they'll figure out how to get it done.

boom boom · Jun 9, 2015

1st Amendment challenges to government statutes or regulations issued under statutes requires the government to meet several challenges.

First, strict scrutiny means that the government must have a compelling interest in limiting the speech, the government has the burden of proving a compelling interest, and then any restriction on speech must be narrowly tailored to address the compelling interest without affecting protected speech. Generally speaking, public safety and national defense secrets qualify as compelling interests. (BTW for those claiming the proposed ITAR based regulation is merely addressing government secrets--the Espionage Act already covers illegal disclosures of national defense secrets as well as other statutes so why would a new regulation be needed). I personally believe that it is directed at the online based movement to manufacture weapons via 3D printing and the like via software.

Second, the major issue that causes government regulations to fail under strict scrutiny is the narrowly tailored part. A regulation in order to pass constitutional muster needs to be as specific as possible so that protected speech is not affected or "chilled". Vague regulations generally fail this test. A perfect example is general ordinances of disturbing the peace--generally time and place restrictions on such things as using a bullhorn at 3am to broadcast a political sermon in a residential area would be held legal--not because of the content but the way that it was delivered which was in such a way as to disturb peoples' sleep. A general ban on bullhorns would probably fail as it would chill and disturb protected speech as well.

Thus, using the internet to distribute classified military secrets to the likes of Wikileaks would be illegal. A general ban on using the internet to discuss weaponry would not. Don't believe that even the ITAR registration requirement would be held legal as generally freedom of the press cases have definitively ruled out registration and licensing requirements for the press or journalists in order to engage in speech. My take is that this is a trolling expedition, in part to persuade gun control advocates that the administration is doing something, and in part because who knows, maybe the courts might allow some sort of regulation on things such as distributing unclassified cad-cam or 3d printing software to make it easier to manufacture guns. That being said, the more negative comments received by the State department on this proposed regulation especially cited instances where protected speech might be affected on reloading, hobbies, etc. that might affect the public's safety negatively by NOT being allowed under the proposed new ITAR regulation would be a good thing. It becomes part of the administrative record that a court would check when the regulation was challenged in court. An agency that acts against overwhelming negative comments has a weaker hand in court review especially if the text of the regulation is not modified to address concerns of the public.

ITAR Restrictions Expanding to Cover Firearms Info?

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