Leo Combat’s case is over. Seeking a new plaintiff.
What is this case about?
The Arms Export Control Act* and ITAR require all manufacturers of “defense articles” to register and pay an annual fee of $2,250. Firearms (with a few exceptions) are “defense articles,” and therefore ANYONE who makes guns, or even essential components for guns (barrels, hammers, sears, etc) must register or potentially face felony charges. Obviously this covers Type 07 FFLs, but also lots of people and companies who aren’t required to even have an FFL. The International Traffic in Arms Regulations go so far as to say that a single instance of manufacturing counts, so if you’re a gunsmith who once made a hammer from scratch to repair a customer’s obscure rifle–you are a felon. Incidentally, it also covers receiver blanks (“80% frames”) as “castings or forgings.” And you have to register even if you don’t export a single thing.
What are my arguments?
- The fee provision of the law, as passed by Congress, contains no guidance on what the fee should be, and thus is an unconstitutional delegation of the legislative power.
- Because the law is an exercise of Congress’s foreign commerce power, it cannot require any action from companies that do not engage in foreign commerce (the interstate commerce power is what gives us the Gun Control Act and the FFL system, and is entirely separate).
- The fee is so high that it constitutes an undue burden on Second Amendment rights with no rational relationship to the purpose of restricting exports to hostile powers or terrorists. Here I have pulled in both Abortion and Free Speech jurisprudence in support of the right to keep and bear arms. We’ll find out if liberal judges are intellectually consistent or not!
What happened with the first case?
Judge Wang dismissed the case on the grounds that Leo Combat LLC lacks standing. That is, because nobody is actually being prosecuted, there is no “case or controversy” between the parties. She did not reach the merits of the case, that is, whether or not I’m right. Leo Combat is a Type 07 FFL, has designs ready to start building, and the only thing stopping me is the ITAR rules. That’s not enough, apparently, to allow me to challenge an unconstitutional law.
Why not appeal?
An appeal will suck up at least a year of time even if I win it (to say nothing of the time and energy wasted if I lose). On top of that, beause this sort of decision is explicitly committed to the “discretion” of the trial judge, it’s hard to win an appeal. I think the judge is wrong, but that’s not enough. I’d have to show she was really out there in la-la land, and I don’t think I can do that.
What happens if I win?
It depends on exactly how. If the fee is an unconstitutional delegation of legislative power, then everyone who pays it, from Boeing to the corner gun shop, will be entitled to a refund–although Congress can then reenact the fee in a better way that subjects us all to it again. But we will have the opportunity to lobby them to prevent that. If registration is an unconstitutional use of the Foreign Commerce Clause in a domestic context, then non-exporters will be able to escape the fee, and only exporters will have to worry about it. That would be a reasonably fair result, since it is exporters who profit from foreign trade. If the fee is an undue burden on Second Amendment rights, then presumably it will have to be reduced, but not to zero.
So now what?
I set up a GoFundMe page in the hopes that donors would help me pay the ITAR fee and file a new lawsuit. Unfortunately the campaign collected only $200 in a month, despite hundreds of views and many shares. Thank you so much to my donors! The money donated will be refunded. The next step now is to find a gunsmith or shop that doesn’t export, but does pay the ITAR fee. If that person or company will agree to be the plaintiff and pay the filing fee, I will serve as their attorney for free and try to get their money refunded. Because I’m that angry about these rules! If you know of such a company, please hit the contact page.
Curious about the first case? Read the complaint here. Opening briefs from The government and Leo Combat. Response briefs from the government and Leo Combat. The government’s surprise reply brief that they didn’t warn me about. And of course the decision.