In the wake of this summer's Supreme Court ruling on firearm rights, various states and the Federal government have been trying to find new ways to do what the court said they cannot do. In New York, a revised law has been declared by a judge to be 'probably unconstitutional' -- but allowed to go into force anyway.
This bias towards allowing the unconstitutional is also in evidence at the Department of Justice, where new 'rules' governing the 3D-printing of so-called 'ghost guns' have gone into effect.
Though manufacturers sell full kits for firearm enthusiasts, the recent rise of 3D printing has allowed tinkerers to create their untraceable lower receivers, which until recently was what legally constituted the “firearm” component of a gun.
The DOJ’s updated language, which it refers to as the “Frame or Receiver” Final Rule, tries to address this issue by explicitly stating kits capable of being converted into functioning firearms are subject to the same regulations as more traditional guns. Prior to this week’s update, realtors were relying on language written in 1968 and 1971 to determine what defined firearms.
A problem with this approach is that the 'language written in 1968' -- in the wake of the MLK assassination -- explicitly defines firearms differently from how the new rule does so. The new rule usurps the authority of Congress, having an executive office by mere internal rule-making alter the meaning of a Federal law.
The term 'firearm' means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
You can see the problem: the only way this definition admits of parts is if there is already a 'weapon' that 'may be readily converted' into a working firearm. But a bunch of parts are not a weapon, except in that vague sense that literally any physical object can be used as a weapon. The vagueness doctrine exists for attempts to assert powers, even under actual laws and not mere administrative rules, that make it unclear what exactly is and is not banned.
It allows the frame or receiver to be regulated, but not (say) a thing that is only more-or-less shaped like a frame or receiver. For many years now, 80% complete lower receivers have been sold unregulated because they are not, in fact, receivers. The DOJ rule asserts that these just are receivers even though they cannot be used as such; but that also implies unconstitutional vagueness in the law. Why would anyone think that a thing that is 80% X is in fact X? Further, if a thing that is 80% a receiver is a receiver, what about a thing that is 79%? How do I tell the difference, as an ordinary citizen, between a 79% one and an 80% one?
How about 70%? Two percent? Just a block of aluminum? A dumpster full of aluminum cans that might be recycled into a block of aluminum? At some point the regulation would not apply, and there's no logical reason why it should be either here or there.
The government's position is consistent, though, in wanting people to have to fight in court every inch of the way. Draining private persons' resources while defending objectively unconstitutional laws with taxpayer money, the governments at both the state and Federal level are working hard to get away with encroaching on what is clearly improper conduct.
10 comments:
In New York, a revised law has been declared by a judge to be 'probably unconstitutional' -- but allowed to go into force anyway.
How would striking the law under the circumstances argued be any less unconstitutional? The judge ruled, for good or ill, that the plaintiff had no standing to bring the suit. Ruling on convenience is what Progressive-Democrats do. Americans are better than that. Or we need to be. Either we're a nation of laws, or we are a nation of men.
Full stop.
Eric Hines
The idea that a citizen might not have standing to object to living under unconstitutional laws is worse than just letting an unconstitutional law stand while it’s appealed. The courts are hardly upholding their part of the bargain.
Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.
Guns Owners of America New York is not a citizen, not even a person, nor can it show any personal harm, and so it lacks an ability to bring a case in this matter.
There are plenty of actual persons--citizens of the State of New York--who can show personal harm and who could bring this case. And win. The lawyers for GOANY, and GOANY itself, could have found one or more of these to join as plaintiffs and so bring standing to the case.
It's dismaying and disappointing that those lawyers and that organization chose to take the lazy path instead.
Eric Hines
GoA includes many citizens. It's just an excuse. The judge outright states that the law is unconstitutional, and then finds a dodge to let it slide. In so doing they waste the money private citizens donated so that GoA could represent them, and now more money will have to be spent as well. Meanwhile the government, having enacted an unconstitutional law, gets to carry on with it -- and their lawyers are paid by taxpayers.
"Rule of law." There's no more fundamental point to American law than that unconstitutional acts have no force. They are null and void. As soon as unconstitutionality is recognized, a so-called law should be wiped away like the stain on our system that it is.
I'm pretty froggy about the whole 'standing' thing after the Election Fraud cases, in which no one at all was found to have standing to bring a case -- not citizens, not states, not legislatures against their executive branches, not Presidents, not anyone at all. 'A government of laws' maybe, but all governments -- and therefore all laws -- are subject to the principles of the Declaration of Independence. When they become destructive of rather than protective of natural rights, they may be set aside and replaced. At some point, they must be.
No, the judge didn't outright state[] that the law is unconstitutional, he said it was likely unconstitutional. He didn't get to an analysis of that, since he found no standing.
It's true that GOANY includes many citizens, but those citizens weren't party to the suit, only the institution of the GOANY was. And there are many reasons the two are legally separate: think, for instance, buying a fridge from GE. GE the institution stands in for its millions of shareholders, so the purchase and sale contract doesn't have to be circulated among the lot of them before the sale can be consummated.
As for the lack of standing in the cases brought in fall '20, blame that on the idiot lawyers like Giuliani and Powell, who were too hasty and sloppy to get their cases filed and their names in the papers, and to curry favor with Trump, to trouble themselves to locate actual voters who were actually harmed.
Aside from their inability to form a coherent argument on the matter to counter the opposing litigants' arguments. They didn't even, as far as I have seen, mention Art I, Sect 4, regarding occasions in which State Secretaries of State and a State Supreme Court on their own recognizance changed election procedures and election law--in one case when the State's SecState implemented an election procedure that the State's legislature had explicitly rejected that summer. And they brought those cases from the jump in Federal courts instead of the State courts like they should have done. That's where ignoring the Constitution has done the damage in that situation.
The cases that were brought carefully, and so more slowly, are starting to bear fruit--especially the ones being brought in State courts.
Sticking to procedure can be time consuming and deucedly frustrating, but the law and its required procedures are what protects us all from the devil.
Eric Hines
That’s a moving film, but Sir Thomas More was executed according to the law. Washington had a better answer to devils in power.
Theologically, the power to defend against devils will not be found in man made systems nor mortal things. Pragmatically, laws are at least as often the tools of devils as a hindrance to their kind.
Pragmatically, laws are at least as often the tools of devils as a hindrance to their kind.
That's why We the People have to do our own duty.
Eric Hines
Perhaps if you are only thinking of acquiring a gun that will be considered a real firearm.
Honestly the previous definition of "firearm" was completely preposterous on it's face, but we've had it in use so long we've gotten used to it.
I mean c'mon- "(C) any firearm muffler or firearm silencer"
If you're using "firearm" as the modifier to a noun, then the thing you're describing is *definitionally* not a firearm.
And yes, the standing issues have been amazingly frustrating.
Didn't the Supreme Court rule corporations are people? So how is a non-profit with paying members so different?
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