Category: Second Amendment


FAN 59.1 (First Amendment News) Online Instructions on How to Make 3-D Printable Guns — Protected Speech?

It’s fun to challenge the State to greater and greater levels . . . To challenge it successfully enough leads to its own suicide, its own collapse. . . . There is a certain kind of logic to it, an extreme logic, a fatal startegy.  — Cody Wilson (ReasonTV)

Cody Wilson -- have gun, will publish

Cody Wilson — have gun, will publish

Cody Wilson likes guns, of a certain variety that is. He savors guns of the 3-D printable genre. With Mr. Wilson’s instructions and a costly 3-D printer, anyone can make a “Wiki weapon” or “Liberator” as he tags these plastic guns that can fire deadly bullets. The process is summarized by the “techno anarchist” in this YouTube video (see also 25-minute ReasonTV video interview here).

What does this mean? Well, it “won’t be long before a felon, unable to buy a gun legally, can print one at home. Teenagers could make them in their bedroom while their parents think they are ‘playing on their computer.’ I’m talking about a fully functional gun,” adds New York Times reporter Nick Bilton, “where the schematic is downloaded free from the Internet and built on a 3-D printer, all with the click of a button.” Worse still, says Bilton, “[a]fter committing a crime with a printed weapon, a person could simply melt down the plastic and reprint it as something as mundane as a statue of Buddha. And guns made of plastic might not be spotted by metal detectors in airports, courthouses or other government facilities.” (See May 6, 2015 NYT story here re history leading up to this controversy.)

We’re not interested in making you a machine where you have a more productive life. We’re interested in multiplying the problem. — Cody Wilson (BackChannel, March 11, 2015)

According to a Fox News report, “[w]ithin two days of publishing the blueprints on the Internet, on May 5, 2013, 100,000 people around the world had downloaded them. The goal, Wilson said, was to invalidate the government’s ‘unconstitutional’ hold on gun technology.” Predictably, the government stepped in. The State Department “claimed Wilson violated the International Traffic in Arms Regulations, which ‘requires advance government authorization to export technical data,’ and as a result, could spend up to 20 years in prison and be fined as much as $1 million per violation.”

In October 2014 Wilson revealed his biggest project to date: the Ghost Gunner, a miniaturized [Computer Numeric Control] milling machine small enough to sit on a desktop. It’s thousands of dollars cheaper than big CNC mills [and can be used to make plastic guns] . . . . Defense Distributed sold out a pre-order of 500 machines, collecting nearly $700,000 in the process. Wilson moved back to Austin. By December, Defense Distributed was assembling Ghost Gunners in a new, 1,800-square-foot factory. [Source here]

Wired Magazine branded Cody Wilson as one of the “15 most dangerous people in the world.”

Acting through his 3-D gun printer company, Defense Distributed, the former University of Texas Law School student (he dropped out) has decided to defend his purported Second Amendment rights by way of a First Amendment defense to publish his computer code gun-making instructions. To that end, the 27 year-old Wilson has taken on the State Department by filing a lawsuit charging that the government’s attempts to prevent him from publishing his instructions are an unconstitutional prior restraint of his free speech rights.

  • Name of Case: Defense Distributed v. U.S. Dep’t of State (complaint here)
  • Named Plaintiffs: Defense Distributed & Second Amendment Foundation
  • Complaint filed in: US District Court for the Western District of Texas, Austin Division

The attorneys in the case are:

  1. Alan Gura (he successfully argued Dist. of Columbia v. HellerMcDonald v. Chicago)
  2. Matthew Goldstein, and
  3. Professor Josh Blackman.

Summary of Complaint

Alan Gura

Alan Gura

“Contrary to the Justice Department’s warning that such actions are unconstitutional, Defendants unlawfully apply the International Traffic in Arms Regulations, 22 C.F.R. Part 120 et  seq. (“ITAR”) to prohibit and frustrate Plaintiffs’ public speech, on the Internet and other open forums, regarding arms in common use for lawful purposes. Defendants’ censorship of Plaintiffs’ speech, and the ad hoc, informal and arbitrary manner in which that scheme is applied, violate the First, Second, and Fifth Amendments to the United States Constitution. Plaintiffs are entitled to declaratory and injunctive relief barring any further application of this prior restraint scheme, and torecover money damages to compensate for the harm such application has already caused.”

First Amendment claims 

  1. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as an unconstitutional prior restraint on protected expression.
  2. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as overly broad, inherently vague, ambiguous, and lacking adequate procedural protections.
  3. Defendants’ prepublication approval requirement is invalid as applied to Defense Distributed’s posting of the Subject Files, because Defendants have selectively applied the prior restraint based on the content of speech and/or the identity of the speaker.
  4. Defendants’ interruption and prevention of Plaintiffs from publishing the subject files, under color of federal law, violates Plaintiffs’ rights under the First Amendment to the United States Constitution causing Plaintiffs, their customers, visitors and members significant damages. Plaintiffs are therefore entitled to injunctive relief against Defendants’ application of the prior restraint.



UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394



California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506





Kentucky: Boy, 5, Kills Sister, 2

That’s not my headline.  It was in the New York Times earlier this month, in the section where the paper provides short blurbs about what is happening around the country.

My youngest daughter is in kindergarten.  Here is a list of some of the things that she either cannot do or is not allowed to do: cross a busy street by herself; pour milk from a full gallon jug; ride in a car without a booster seat; and tie her shoes (I know . . . she’s working on that one).  She is, however, a highly capable kid.  So it might be fairer to her if I listed some of what she can do:  get herself ready for school; ride her bike around the block; make her bed; use a variety of electronic devices that begin with an “i”.

But regardless of whether the list is of “cannots” or “cans,” it does not square with this statement from the county coroner in Kentucky:

 Mr. White said that the .22-caliber rifle had been kept in a corner and that the family had not realized a bullet was left inside it. “It’s a Crickett,” Mr. White said, referring to a company that makes guns, clothes and books for children.  “It’s a little rifle for a kid,” he said, adding, “The little boy’s used to shooting the little gun.”

I grew up in a small Wisconsin town.  At my high school, so many teachers and students were absent on the first day of deer season that school might as well have been cancelled.  Today some of my close relatives keep hunting rifles in their closets.  So while I absolutely do not want to suggest that I know anything about the family that suffered this terrible tragedy, I am familiar with the kind of culture in which a .22-caliber rifle is put in a corner.

Which is not to say that I wasn’t jarred by the phrase “a company that makes guns, clothes and books for children.”  Or that I expected, when I visited Crickett’s website, to see child-sized guns in bright blue and pink.   And watch out Joe Camel, because Crickett’s mascot is a jolly green frog sporting a rifle, boots, and a hunting cap.

Footbinding, smoking, drunk driving—these are all legend among law and norms scholars.  But with few exceptions, almost no one talks about trying to change gun culture through the sort of small, incremental changes that have made such a difference elsewhere.  Certainly it is daunting to even think about how to spark change.  And it’s also true that those whose ideas would make a difference would only receive posthumous gratification, because change might not actually be realized until my kindergartener has great-grandchildren.

But Boy, 5, Kills Sister, 2.


Stanford Law Review, 64.1 (2012)

Stanford Law Review

Volume 64 • Issue 1 • January 2012

The Right Not to Keep or Bear Arms
Joseph Blocher
64 Stan. L. Rev. 1

The Ghost That Slayed the Mandate
Kevin C. Walsh
64 Stan. L. Rev. 55

State Sovereign Standing:
Often Overlooked, but Not Forgotten

Kenneth T. Cuccinelli, II, E. Duncan Getchell, Jr.
& Wesley G. Russell, Jr.
64 Stan. L. Rev. 89

Establishing Official Islam?
The Law and Strategy of Counter-Radicalization

Samuel J. Rascoff
64 Stan. L. Rev. 125

Lobbying, Rent-Seeking, and the Constitution
Richard L. Hasen
64 Stan. L. Rev. 191

Bringing a Judicial Takings Claim
Josh Patashnik
64 Stan. L. Rev. 255


Federalism and the SAGs’ Brief in McDonald

A few weeks ago, before I got caught up with finishing the semester and creating an exam, I wrote up a post exploring the role of State Attorneys General (SAGs) as agents of popular constitutionalism. In it, I asked whether that role is complicated by whatever obligations SAGs have to represent the interests of the states qua states, as opposed to the interests of “the people.” I used the SAGs’ McDonald v. City of Chicago amicus brief as an example, since it argued for incorporation of the Second Amendment and therefore seemingly against the interests of the states, while advocating a right that three-quarters of the American people support. Since I’m presently trying to avoid grading the aforementioned exam, now seems like a perfect time to revisit the first of those premises — namely, that the argument for incorporation in McDonald cannot be justified on the basis of state interests. The SAGs themselves argued that it could, though I have a hard time seeing how.

Read More


Constructive “Keeping” and the Second Amendment

Eugene Volokh recently linked to an interesting case involving the Second Amendment rights of people who share a home with someone barred from possessing guns. The case’s result seems to turn on the fact that the prosecution simply failed to show that the defendant intentionally helped her boyfriend (a felon) possess her gun. But it also raises interesting questions about what counts as “keeping” and “bearing” for the purposes of the Second Amendment, particularly as those concepts relate to criminal liability for constructive possession.

Inasmuch as debates about the Second Amendment concern its text, they tend to focus on terms like “well regulated Militia,” “the people,” “the right,” and “Arms,” with the definitions of “keep” and “bear” essentially following along with one’s preferred reading of the Amendment’s purpose. If the Amendment is about protecting militias from disarmament, then “keep and bear Arms” is a unitary phrase with a military meaning. If it’s about an “individual” right to self-defense (or something else), then “keep” and “bear” mean simply “have” or “carry,” as the Court held in Heller.

Since Heller, much attention has been given to what types of “the people” have Second Amendment rights, and what types of “Arms” they can bear. But the meanings of “keep” and “bear”–even now that they’ve been redefined as “have” or “carry”–also raise complicated questions, which don’t seem to have attracted the same amount of attention. What amount of control must I exert over a gun in order to assert that I am “keeping” it for Second Amendment purposes? Presumably it doesn’t have to be on my person or even in my immediate control, or else keeping and bearing would mean the same thing, and I wouldn’t have a Second Amendment right to store my guns in an attic or a shed.

Is constitutional “keeping” (i.e, “having”) simply analogous to “possession” in criminal statutes? The concepts are certainly closely related, since a felon’s loss of the right to keep includes a loss of the right to possess. That suggests possession is at the very least a subset of keeping. And if that is so, is there some version of “constructive keeping” akin to constructive possession? Knowledge and intent to control a gun are usually treated as essential elements of constructive possession under state and federal criminal law. That makes sense, given the mental state requirements we generally have in criminal statutes. But does that necessarily mean that they are also essential elements of “keeping” for Second Amendment purposes?


State Attorneys General and Popular Constitutionalism

David Pozen recently published his second article on judicial elections in the pages of the Columbia Law Review. In the first, “The Irony of Judicial Elections,” 108 Colum. L. Rev. 265 (2008), he explored the “new era” of judicial elections and discussed the tradeoff between those elections and the traditional role of the judiciary. In the new piece, “Judicial Elections as Popular Constitutionalism,” 110 Colum. L. Rev. 2047 (2010), he investigates the linkages between judicial elections and popular constitutionalism. In reading it, I couldn’t help but wonder if there’s another set of actors at the state level who are also highly relevant to the enterprise of popular constitutionalism: the state attorneys general.

Read More


Another possible reason for the LAT story on NRA v. Chicago

pistolOver at the conspiracy, Eugene Volokh points out an odd fact — while the L.A. Times gives rather extensive coverage to the recent NRA v. Chicago, it gave no coverage at the time to Nordyke v. King, which was a California case. Eugene offers a few possible rationales for this difference:

To be sure, there are possible explanations: Today’s story was by the Times’ Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it’s made higher profile by the controversy about Judge Sotomayor’s participation in the Second Circuit’s no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit’s incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

(In comments, VC readers seem to mostly be of the opinion that the story shows a concerted editorial campaign to promote gun control through skewed news reporting.)

I’d suggest another possible reason — there’s a man-bites-dog aspect of the story which Eugene doesn’t mention; and no, it’s not the cheesy “wow, Republican judges can rule against gun rights” factor. Rather, it’s the fact that incorporation was widely expected to have an easier road than this. Read More


Practical Advice: Don’t Let Your Client Pay You in Guns

Wow.   A pharmacist accused of murder decided to pay his lawyer with his firearm collection.  When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.  Quick: which amendment gets play?  (Hint: it’s not the 2nd!)

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box told the judge he has accepted other unusual payments in the past, including comic books.

The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store.  You can see the video here.  And as for the constitutional right to withhold information about Ersland’s gun collection?  That would be the right against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

This advice is generalizable. Take cash over credit, and credit over barter.  And never, ever, take the instruments of the crime.


A Talk About Heller at ‘Bama

Alabama_counties_Yellowhammer.jpgThis Thursday I’ll be in recently rain-swept Tuscaloosa, giving a talk at the University of Alabama School of Law on “The Future of the Right to Arms After D.C. v. Heller.” at the kind invitation of ‘Bama’s chapter of the Federalist Society. I hope to discuss Heller‘s revision of U.S. v. Miller, the role of nineteenth-century state court decisions in Heller, and future Second Amendment battlegrounds such as incorporation, concealed carry, and the possible renewal of the expired federal “assault weapons” ban. Time permitting, I’ll also discuss what Heller illustrates about the distinctive character of American conservatism.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat to encounter some CoOp readers there.

Travel bleg:

I’ve never been to Alabama. Any suggestions for things to do/see during a brief visit to Tuscaloosa or Birmingham (where I’m staying)? I do plan to visit the Birmingham Civil Rights Institute.