OSD 259: The floor is lava
OSD 259: The floor is lava
The prohibited persons ban is the weirdest part of the Gun Control Act. And that's saying something.
Apparently we’re preoccupied with the Larry Vickers prosecution.
In “OSD 244: You’re so vague you probably think this law is about you” we talked about the vagueness of the machine gun ban exemption which he pled guilty to violating, and we also explained how coercive plea bargaining works.
In “OSD 257: Greed is good — civil disobedience edition” we talked about how, as Adam Smith put it, someone who engages in malicious compliance for the crass purpose of collecting cool guns is actually helping undermine bad laws — “led by an invisible hand to promote an end which was no part of his intention”.
What’s left to discuss? Well, the sheer tragic drama of it. Larry Vickers was convicted of breaking a federal paperwork law in order to acquire cool guns. His sentencing date is not yet scheduled, but the punishment will have two components. First, very possibly a prison sentence. The second part is ironic like a punishment the ancient Greek gods would have handed out for defying them. From the Wall Street Journal:
For Vickers, the felony conviction means that one of the nation’s leading gun gurus can no longer own or possess firearms. He must forfeit his gun collection to the U.S. government. Prosecutors said he can still use airsoft guns, but only for active-shooter training.
“Nothing could be a greater punishment for him than his inability to possess, use and demonstrate the use of firearms,” said Gerald Ruter, his attorney.
Larry Vickers, who has built his life around firearms, can keep talking about guns. He can keep writing about them and teaching about them. He can take pictures of them and even be near them. But he can never legally touch one for the rest of his life.
There are two ways to look at this, neither of which is particularly satisfying.
The first is LAV-as-Sisyphus. Able to get tantalizingly close to the forbidden goal, but never able to touch it.
The second is LAV-as-Beethoven. An obsessive master of something he loses the ability to experience directly. This is a viable, if poignant, template for the remainder of LAV’s career. (Thanks to
for this analogy.)The law that bans LAV from touching a gun is 18 USC § 922(g). You can think of this law enumerating all the different types of prohibited person as a time capsule from 1968, the year of the law’s passage. That Congress, unknowingly at the high-water mark of federal erasure of gun rights, thought that the following people, among others, should go to prison for ten years for touching a gun:
Anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year”.
Anyone “who is an unlawful user of or addicted to any controlled substance”. Addiction is undefined, as is the question of whether the unlawful use happened one day, one year, or one decade ago.
Anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution”.
Anyone “who, having been a citizen of the United States, has renounced his citizenship”.
Anyone “who, being an alien— (A)is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))”.
Some notes on the first and last of those.
For #1: the prohibition on convicted felons is remarkably broad. The nature, seriousness, or date of the crime don’t matter — the ban is lifelong no matter what. It’s also often used as a sword of Damocles that hangs over a convict, forever ready to drop the moment that a prosecutor decides that would be convenient. For example, take the case of Steven Cooper, caught up under Minnesota’s state-level copy of the federal ban:
When Steven Cooper found a gun and ammunition in the Chevy Blazer his brother gave him, he did what he thought was the right thing.
He wrapped the gun in a sweatshirt, put it inside the secured door of his apartment building, and waited for his parole officer to show up.
As a felon for a violent offense, Cooper isn’t allowed to possess a firearm and doing so could send him back to prison for years.
He turned the gun over to his parole officer and told her it probably belonged to his brother, who recently died and left behind some belongings in the car.
Cooper’s parole officer called the Duluth police, who put Cooper in handcuffs and took him to jail.
…
The Department of Corrections chose not to send Cooper back to prison for violating parole. A spokesperson for the department said Cooper was formally sanctioned and had conditions of his supervised release “restructured.”
But the St. Louis County Attorney’s Office charged him with felony possession of a firearm, which carries a minimum sentence of five years.
For #5: the breadth of the prohibition on people with nonimmigrant visas is also really underdiscussed. Some examples of people in the US on nonimmigrant visas: international college students, all workers on H-1B visas, and most tourists. Gun “possession” is a strict definition under this law. It includes handling a gun or ammo even for a few minutes without firing, even in the owner's presence.
Legally, nonimmigrant visa holders are in the same category as convicted murderers.
There are some exceptions for nonimmigrant visa holders. Some are esoteric (e.g. you are “a distinguished foreign visitor who has been so designated by the Department of State”). But the main one is that you can possess a gun or ammo if you maintain a valid hunting license.
This might sound like a never-enforced anachronism, but people get prosecuted over it. Take this case of Saudi students convicted under 922(g) because a rental range owner freaked out at the sight of Saudis at his range and called the feds. The students were convicted, imprisoned, and then deported after their prison term.
Another one: this case of Chinese students at the University of Arizona. They bought hunting licenses, so they thought they were ok. But someone didn’t like that they were collecting guns and reported them to the police. Prosecutors said that because the students were nonimmigrant visa holders, they should have bought nonresident Arizona hunting licenses. That made the resident hunting licenses they’d bought retroactively invalid. And that made their gun possession a felony. No 922(g) prosecution, but guns confiscated and lives turned upside-down.
An even more 🙃 wrinkle: some visitors whose home countries have friendly relations with the US (e.g. Canadians with TN status) can apply for entry at the border instead of getting a visa. When that’s granted, it’s called a “status”, not a visa. So then they can possess a gun because they’re not on a nonimmigrant visa, they’re on no visa at all.
See Eugene Volokh’s longer writeup on this. Tldr federal law absurdly makes a felon out of almost every tourist who comes to the US and shoots a gun:
Come from England or Japan for a short visit? Feel free to shoot at a range! Return on a student visa? Federal felony for you (and friends who take you) if you go shooting. Unless, of course, you’ve gotten a hunting license — even if the range visit is completely unrelated to the hunting.
It’s a Greek tragedy that the prohibited persons law now affects Larry Vickers. And the much broader tragedy is that it felonizes millions of people who don’t even know it. There’s not much to like about federal gun law. But today’s version of 922(g) is particularly ripe for the dustbin.
This week’s links
The user interface to fire a BAE railgun
Shoutout to @MachinePix/@kane.
New YouTube channel: T.Rex Labs
Isaac Botkin intensifies. We’re enjoying all the technical depth in this content, and looking forward to lots more.
This is the more technical channel of T.Rex Arms, where we will focus on topics pertaining to radios, drones, maps, and some behinds the scenes stuff from the day to day operations of our manufacturing shop.
WSJ: “Could a rogue billionaire make a nuclear weapon?“
The deflationary force of technology, in the limit.
I first learned of a secretive Pentagon-funded study about rogue nuclear entrepreneurs more than five years ago from Stephen Lukasik, a former head of the Defense Advanced Research Projects Agency.
We were talking about the Office of Net Assessment, the long-term analysis division of the Pentagon, famous in Washington policy circles for its predictions about the Soviet Union’s military capabilities and then later China’s rise. Lukasik mentioned that he had led several studies for the office, including one that looked at whether a private company or wealthy entrepreneur could produce nuclear weapons.
“We worked out what a private organization would do if it wanted to build and sell nuclear weapons,” Lukasik told me. “It turned out to be a fairly profitable business.”
Intrigued, I asked if he would share a copy. A few days later Lukasik, whom I had known for two decades, sent me all four volumes of the study, which was completed in 2013. The report laid out in exquisite detail, including staffing levels and cash flow projections, how such an enterprise could operate.
It would take as little as a billion dollars’ investment and five years to produce the first bomb, the study concluded.
Vermont man shoots home invader with muzzleloader
Tally ho, lads.
Rumors of an incoming federal attempt to ban private sales
This is still unconfirmed rumor but floated around a few different news outlets last week. If this is true, it’s much likelier to backfire spectacularly than it is to actually hurt private sales. But keep an eye on it.
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After reading this, I am left wondering whether most tourists really are prohibited and how I might find that out. The US has visa waivers with 39 countries, including Germany, Japan, Holland, England, Australia, Canada and many other countries. It seems plausible to me that most tourists actually enter under the visa waiver program.
That said, it is a curious fact that a tourist without a visa can legally shoot at a range but the same person, if they come back as a student, can't.
I'm of the opinion that civilian prohibitions on nuclear weapons are ultimately unenforceable.
Sure, if you can stop them before it is complete, and it's hard to build one of these in secret, then you have a solid case. This is why you do your development and build in some facility in international waters or some other difficult to control place. This is starting to sound supervillain-ish, but sometimes you just gotta be that way.
The instant they have a functional nuclear explosive device, however, they are now a state-level actor and outside of conventional law.
Nukes are the Sam Colt of international diplomacy.
And much like the Torment Nexus, someone will eventually build it, because if they don't then someone else will, and then you'll be behind the ball.