Friday, October 01, 2021

Lawsuit Filed to Protect Second Amendment Right to Make Your Own Gun

 Image from FPC lawsuit against San Diego

On September 23, 2021, the Firearms Policy Coalition filed a lawsuit challenging a ban on the sale and possession of precursor materials used by individuals to make their own firearms. The ban flies in the face of long standing precedents. Individuals have been legally and practically able to make their own firearms ever since the Republic was founded. From 

“The right of individuals to self-manufacture arms for self-defense and other lawful purposes is part and parcel of the Second Amendment right to keep and bear arms and an important front in the battle to secure fundamental rights against abusive government regulations, like San Diego’s unconstitutional ban,” said Adam Kraut, FPC’s Senior Director of Legal Operations. “FPC will continue to aggressively work to defend the People’s rights and property in this case and dozens of others throughout the United States.”

The United States chose not to follow the path of Japan, where the warlord/rulers, after using firearms to unify Japan under one government, made the individual manufacture of firearms without a license illegal, then consolidated all firearms manufacture to one city; then banned firearms manufacture and all ownership by private individuals. In most governments around the world, the private manufacture by unlicensed individuals is forbidden.

Most other governments in the world have strict controls on what can be  said or written and published. Such controls are becoming more common in formeerly free countries such as Australia, England, and Canada.

The lawsuit compares the First Amendment and the Second. From the legal complaint:

34. In the First Amendment context, free speech rights include the ability to build one’s own printing and communications devices, print one’s own fliers, and utilize largely unregulated channels of speech in the exercise of the rights secured. In that context, it is well established and readily accepted that the government cannot lawfully narrow the channels for exercising the right to freely speak through government-approved gatekeepers who create or provide limited channels of speech and limited means of distribution for a beholden populace.

35. Likewise, in the Second Amendment context, the government cannot lawfully narrow the channels for exercising the right to keep and bear arms by limiting one’s access to the instruments essential to self-manufacturing in the exercise of that right, by forcing people to exercise it solely through the acquisition of firearms from limited, government-approved manufacturers of firearms and firearm predecessor materials.

It is likely this complaint will go to Judge Roger T. Benitez, of the District Court in the Southern District of California.  Judge Benitez is the author of other decisions about the scope of the Second Amendment. Judge Benitez is a careful scholar with excellent logic and writing skills.

If he is assigned the case, we should know relatively soon. The lawsuit calls for an immediate injunction against the enforcement of the San Diego Ordinance no. 0-2022-7

A ban on the possession of objects which can be made into firearms receivers or frames is a very broad ban indeed. It logically would include a great many metal pipes; perhaps blocks of metal or plastic. It is part of the rabbit hole of gun control. You cannot effectively control guns in an industrial society, unless you control the information about how to make guns, and the tools needed to make them.

The idea that "untraceable" and "unregistered" firearms are a unique threat to society is false. Most guns in the United States are untraceable and unregistered. If even a million of them are made in a given year, it is a small number compared to the hundreds of millions already in existence in the United States.

The firearms made are of the types in common use for self defense and other legal purposes. The ordinance is not narrowly tailored to have minimum impact on ordinary citizens, nor is the "harm" from the private manufacture of guns shown to be more dangerous than the ordinary manufacture of firearms.

The Second Amendment, necessarily takes some policy decisions "off the table". This is one of them.

If the lawsuit goes to Judge Benitez, I expect it to be found unconstitutional. There is no longstanding law that forbids law abiding citizens to own, make, or sell partly finished firearms frames or receivers.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Anonymous said...

I have a shotgun my father bought in the late 30's as well as a .22 pistol from the early 50's. Neither is registered and therefore are untraceable. You are correct when you say there are millions more that fit the same category of "untraceable."

Anonymous said...

When the second amendment was written any one could make their own gun and did. The government had no arsenal to issue weapons from . the revolutionary war was fought with mostly home made guns. The first commercially manufactured gun was the Brown Bess with interchangeable parts.c

Anonymous said...

Well the government claims there are 450 plus guns in this country and that is the number they are estimated to know about. through registered sales and serial number identification. Serial numbers were not even require by manufacturers for well over 100 years. Many of those guns still work fine. I am one of millions that owns metal lathes capable of making any thing I desire out of metal. I have a fairly well equipped reloading bench and teach reloading to friends. And if it ever gets down to having to use black powder I know how to make my own and black powder can be used in any fire arm it just requires a lot of cleaning up. Hot soapy water and plenty of oil. gun cotton is another possible use but it is very touchy. when it dries out. It must be made into pellets while wet. Break a cotton fiber after it dries and bang. Black powder is susceptible to static electricity so don't shuffle across a carpet. and stay away from power lines. any spark will set it off so use glass or brash when working with black powder. Crude black powder is made of very simple ingredients all but the sulfur is in most kitchens. you can dig up sulfur.10, 15, and 75 % of the necessary ingredients mixed dry then combines with enough rain water to make a paste. let it dry completely and grid what you need into the grain size you want. the finer you grind it is important the really fine is called flash powder. well I do not keep my charcoal (Carbon) in the kitchen but the meat tenderizer (salt peter) is there, fine for rifle, pistol, shot gun and larger for cannons. Only use brass to prevent a spark to grind it. Gun cotton requires battery acid, raw cotton and distilled water. I can make a press to make aspirin size tablets It is a longer process but simple. making other things that go bang is more involved dynamite is just nitro glycerin mixed with saw dust. Don't handle it carelessly after the nitro dries. crack the dry nitro and bang. dissolved silver coins can be used for an interesting bang. How many people know how to dissolve silver coins? the information is out there for those that have an interest. only the very careful should try any of this. Most of the mistakes can be identified by the number of missing fingers, arms or heads. The really big mistakes are picked up with tweezers. I helped disarm 150 anti tank mines once about 1.200 pounds of TNT. and I'm still here with all of my fingers. some times in Vietnam we used C-4 to heat our C-rations in the tail end of a mortar flair shell. they make a great little camp stove. never try to put the fire out just let the C-5 burn out. A marble sixe piece is all that is required with a stick match and a mortar tail. Chow is ready in five.