Eugene Leitl wrote:
> Date: Tue, 3 Jul 2001 13:19:04 -0700
> From: Tim May <email@example.com>
> (There are even restrictions on such established things as _gun
> research_. A hobbyist interested in building a better kind of rifle,
> or even building an old-fashioned kind of rifle or handgun, has
> committed various felonies merely by building such a thing without
> having all sorts of expensive licenses and "permission slips" from
> the BATF and probably other local, state, and federal agencies. Even
> if he never sells his handiwork he has violated BATF
> regs...essentially a licensing restriction on R & D. Not such a big
> deal to Ruger or Kahr or Smith and Wesson, perhaps, but a mighty big
> insult to the Constitution...and to the Founders, some of whom were
> gun makers.)
This is incorrect. According to the BATF's own interpretations of the
NFA of 1934 and the GCA of 1968, construction of a non class II or III
weapon (i.e. anything other than a fully automatic weapon or silencer,
etc) it is fully legal for a private individual to construct for their
own private use, they do not need a manufacturers license and they do
not have to put serial numbers on their firearms.
The recent case of the Maadi-Griffin is about Stewart making the kits
for sale to others putting too much work into the parts, which made the
customers mere assemblers of previously manufactured parts. The man
making the kits thus violated the above described interpretation. The
rights violating thing is that the BATF will not issue a ruling on how
much work the private user must put into the firearm for it to be
considered manufactured by them, thus failing to set a standard unfairly
deters otherwise law abiding people from even venturing into this area
of home hobbying. In this case, the BATF is acting extra-legally to
regulate something they have no authority over.
> Tangential to this issue, but intersecting it, is the issue of
> licensing in general. More and more employment requires that the
> state issue a permission slip. As with the cloning arguments seen
> here, the debate is usually couched in terms of "public safety."
> (Though how the licensing of fortune tellers, here in Santa Cruz, is
> a matter of public safety is quite mysterious.) The real issue, as
> readers of my stuff will know, is the creation and support of guilds:
> licensing is a rent-seeking mechanism.
This licensing does fit into a libertarian scheme as well, where one
would obtain the lowest insurance premiums on one's liability insurance
if one's skill is certified by some credible third party.
> To cut to the chase, we are seeing a transition to a world of:
> -- licensed and approved members of professions. Lawyers, doctors,
> accountants, geologists, tax preparers, fortune tellers, even
> engineers and programmers (in more and more states). At this rate,
> Uncle Sam will have to give his blessing for any activity other than
> purely amateur or leisure activity. This is NOT what the Constitution
> is about. (And please don't anybody cite the "commerce clause": the
> 1964 landmark case arguing that interstate commerce was affected by a
> rib joint not serving blacks--hence making their discrimination
> policies subject to Congressional rule--was pretty bogus even back
> then. Arguing that a programmer needs to be licensed, regulated, and
> controlled because he might sell a program across state lines is even
> more bogus. People often lose sight of the forest for the trees.
Now, the Constitution DOES, in fact, authorize congress to regulate
interstate commerce, while each state has its tenth amendment authority
to regulate intrastate commerce to whatever degree its citizens deem
appropriate. US v. Lopez is a far more recent case than the writer cites
above, but even that still declares that regulating behavior with direct
impact on commerce is completely constitutional. I suggest the writer
look to that decision, as the most recent significant commerce clause
decision, for further guidance.
With the internet, it is guarranteed that anyone with a website
promoting their skill as a programmer is, in fact, engaging in
interstate commerce. Whether you actually have customers in other states
is immaterial, you are literally advertising your services across state
lines, which is, in fact, regulatable under the commerce clause the
first time someone from another state browses your website, or when your
website is indexed by a search engine spider.
However, there is a significant difference between regulating and
banning. One is not the other. Banning one form of interstate commerce
is not regulating it, since with the act of banning, no such commerce
does occur. The proper 'original intent' means of instituting an
effective ban is to impose a prohibitive tax upon undesired activity.
This was properly applied with the National Firearms Act of 1934, which
did not ban machine guns or silencers, it merely imposed a $200.00
federal tax on the sale and transfer of such devices. Since silencers at
the time retailed in hardware stores for about $5.00, this was a
significantly prohibitive tax of 4000%. At the same time, machine guns
were selling for $25-125.00 in the same corner hardware stores, so a
$200.00 tax on the purchase of one was also a significant deterrent
against their purchase.
Thus a proper 'regulatory' response to the desire to control the
proliferation of technology would be to tax it at a level commensurate
with the estimated costs of allowing such technology to get into the
hands of bad people. This is the only sort of response which could
withstand a court challenge, with the only possible defense being one
which utilizes the principle that exercising one's rights cannot be
> -- to a world where broad areas of research are banned or restricted
> to controlled institutions. Seen with CBW research, and now cloning.
> How long before it carries over to other areas in biology? Why not
> restrict computer virus research? Or nanotech research?
> (Some of these areas are even "dangerous." Imagine Ben Franklin being
> arrested for "conducting banned research into electricity"? "We are
> ordering a timeout on Dr. Franklin's dangerous experiments with kites
> and keys. We have it on good authority from our own experts that Dr.
> Franklin might hurt himself. And, as we know, lightning causes fires.
> Man was not meant to know such things...unless we in government are
> doing the work. Dr. Franklin should consider this a warning shot." As
> an exercise, make up a list of all of the other kinds of research
> which might have been banned on the grounds that it might be
> dangerous to the researcher or, someday, to others. "But these flying
> contraptions will no doubt crash and kill many innocent people. All
> we are requiring is a "timeout" on this forbidden research by these
> Wright brothers.")
Very salient examples indeed. As in my own example above, restrictions
must be properly based upon an excise framework to withstand repeated
court challenges, and even then, excessive taxes upon the use of such
technology can be challenged under the 'cruel and unusual punishment'
clause. If its wrong to punish convicts cruelly and unusually, doing so
to law abiding citizens should be doubly so, so any tax regieme would
have to prove the validity of its own numbers.
> -- the "ban on bomb-making instructions" proposed by the usual
> suspects is a variant on this issue. If such a ban is passed into
> law, and upheld, how long before it carries over to requiring
> encyclopedia editors excise articles on bombs, ANFO, and Astrolite?
> How long before court transcripts are censored to remove forbidden
Such information is now restricted in the US from being displayed on the
internet, which is unenforcable given the internet's international
> The next point shows where this takes us:
> -- and as with "precursor chemicals," chemicals which _could_ be made
> into methamphetamines or Sarin or other banned items, there will be
> bans on "precursor knowledge." This is probably exactly what is
> happening now with the Rael group and their early work on human
> cloning. Odds are excellent that they are at least several years away
> from actually attempting a human cloning. It's the groundwork, the
> precursor knowledge, that the government is now cracking down on. A
> very disturbing trend.
THe problem is that real examples like Aum Shinrikyo are of sufficient
magnitude that they trigger the 'police or chaos' response that
revolutionary terrorism is intended to accomplish, and government seems
to have no problems with playing the game to gain more power. The fact
that Rael group is obviously a bunch of wackos is specifically intended
to trigger a similar response in people, and I would not be at all
surprised to find out that the Rael group is playing the 'agent
provovateur' game in this regard, just as they played the government's
game in promulgating the ufo garbage to help the gov't cover up its top
secret aircraft work by labeling witnesses as flying saucer loonies.
This archive was generated by hypermail 2b30 : Fri Oct 12 2001 - 14:39:41 MDT