New Jersey Assaults the First and Second Amendments
By Bob Barr
Last week I wrote about a spate of bills in the New York State Senate, sponsored by a liberal Senator from Brooklyn, intending to squash gun ownership across the entire Empire State. On the other side of the Hudson, New Jersey politicians are upping the ante, with a measure signed into law last month that criminalizes speech. Not just any speech, mind you; but speech relating to the Second Amendment.
You can still rant in New Jersey about Donald Trump, or call conservatives any manner of vile names. But, if you try to communicate online about certain firearms matters, Bingo! The “Garden State” authorities will come after you for daring to provide instructions for readers to learn how to print plans for a 3-D firearm. This is not about criminalizing the possession of such an instrument (New Jersey competes with its older brother in making it extremely difficult to legally own a firearm at all). The new law makes it illegal to even communicate how to print one.
Insidiously, New Jersey political leaders, whose fear of the right to keep and bear arms knows no bounds, have constructed this latest Second Amendment speech infringement in such a way that it effectively makes it unlawful for anyone to place such plans online anywhere, not just in their state. What prompted this draconian measure? One small company — Defense Distributed, a non-profit defense firm based not in Newark or Jersey City, but in Austin, Texas. Defense Distributed had the audacity to provide instructions for individuals who want to try their hand at printing a 3-D firearm to do so.
There is, of course, more to what New Jersey is doing beyond just banning the communication of the firearm plans themselves. As in New York, which is moving to force gun purchasers and owners to give law enforcement unfettered access to all their social media and internet searches in return for the “privilege” of possessing a firearm, the broader purpose is to chill people from even considering owning or purchasing firearms in the first place.
If New Jersey had simply banned the manufacture of 3-D printed firearms within its borders, it would be another kneejerk reaction typical of most any liberal state legislature, but would likely — and unfortunately — survive a court challenge. However, by going a step further and banning the “facilitation” of manufacturing such a firearm by making it illegal to “distribute by any means, including the Internet, plans on how to print a 3-D gun to a person in New Jersey,” the law crosses the line into First Amendment territory.
This new tactic, if permitted to stand, lays the groundwork for a state to criminalize everything from engineering books detailing the process of the 3-D printing of firearms for educational purposes, to hosting digital copies of 3-D printed gun designs regardless of where they are in the world, if someone from New Jersey has any way whatsoever to access them. It will then be a small step to banning the transmission of plans for any firearms-related actions.
Even in today’s society where the interpretation of “interstate commerce” has been stretched by government to afford it the right to regulate virtually any product or activity in which an individual might engage, this law reaches new heights of unconstitutional behavior. And our federal Courts, which are supposed to be the constitutional failsafe by which citizens are protected against unconstitutional acts by government, have failed to lift a finger to help. It seems that while federal district courts are all too happy to jump in and issue nationwide injunctions to stop President Trump from implementing federal policies with which they disagree politically, when it comes to stopping favored but nonetheless unconstitutional acts by state governments, federal jurists are content to sit idly on the sidelines.
Ironically, it was this year that the state of New Jersey won a Supreme Court case against a law passed by the U.S. Congress banning sports betting online. New Jersey, then, was an aggressive champion for free Internet speech. But now, mere months later, it has changed its tune. The state’s former free-speech advocates have morphed into Nanny State Internet censors. Their justification for such blatant hypocrisy? The tried and true, go-to justification for virtually all Second Amendment-limiting state action: “public safety”; which trumps not only “individual safety” but every other constitutionally-guaranteed right in today’s world.
It remains to be seen whether the Supreme Court will at long last step in and undergird the Second Amendment with the same degree of authority as it has its sister provisions in the Bill of Rights. Perhaps this outrageous action by New Jersey, which locks the First and Second Amendment in a single challenge, will be that case. In light of recent actions by the High Court, however, I will not be holding my breath.