FEC Complaint Filed Over Fact-Check On Kamala Harris' 2A Views

Gun Owners of America and Second Amendment journalist John Crump have filed a complaint with the Federal Election Commission arguing that social media giant Facebook, the press outlet Agence France-Press, and Kamala Harris violated the 1971 Federal Elections Campaign Act by suppressing actual information about the Democratic vice-presidential candidate through the use of an AFP “fact check” on an article written by yours truly.

The article in question can be found here, but if you want the TL;DR version (which, I confess, is still pretty lengthy), I pointed out that Kamala Harris was part of an amicus brief filed by several district attorneys as the Heller case was before the Supreme Court back in 2008. As part of that brief, Harris and other attorneys argued that if the Court didn’t uphold Washington, D.C.’s ban on handguns and a storage requirement that forced grandfathered gun owners to store their firearms locked and unloaded with ammunition stored separately, it would create “a broad private right to possess any firearm that is a ‘lineal descendant’ of a founding era weapon and that is in ‘common use’ with a ‘military application’ today.”

Create a right, not recognize a pre-existing right. Since then, Harris has said things like “You can be in favor of the Second Amendment and also understand that there is no reason in a civil society that we have assault weapons around communities that can kill babies and police officers,” and “it’s a false choice to suggest that you are either in favor of the Second Amendment or you want to take everyone’s guns away,” but she’s never come out and said that she believes the Second Amendment protects an individual right to keep and bear arms, nor has she offered up any example of a gun control law that she believes would run afoul of the Second Amendment.

AFP, which is part of Facebook’s “Third-Party Fact-Checking Program”, jumped on my piece a few days after it was written, and soon readers of my column were informed through a pop-up that it was “False Information” and were directed to AFP’s fact-check of the piece. The problem, as Crump and GOA point out in their FEC complaint, is that the AFP fact-check relied on opinions and assertions rather than facts. For example, here’s the “evidence” that AFP used to declare that Harris’ role in the amicus brief didn’t amount to a declaration that the Second Amendment doesn’t protect an individual right to keep and bear arms.

Legal scholars, however, say that although Harris supported the amicus brief, it is false to conclude from it that she believes — as the article claims — “you don’t have the right to own a gun.”

“The brief in question is not about whether there is an individual right under the Second Amendment. It is about the crime-related consequences of invalidating the DC handgun law at issue in Heller,” Aziz Huq, of the University of Chicago Law School, told AFP by email. Huq studies how constitutional design interacts with individual rights and liberties.

Adam Winkler, a specialist in gun policy at the UCLA School of Law, made a similar argument.

“This statement is false,” he said of the article’s claim.

“The brief she supported argued that DC’s gun laws should be upheld but not because there was no right to own a gun,” Winkler said in an email to AFP.

“Rather, the brief argued that the laws should be upheld because there is a tradition of gun restrictions, and DC’s were reasonable regulations,” said Winkler, the author of “Gunfight: The Battle Over the Right to Bear Arms in America.”

The amicus brief which Harris joined argued “that at least as far as the Second Amendment is concerned, it doesn’t relate to private rights,” said Charles, of the Duke Center for Firearms Law.

But he added: “I’m not sure it’s fair to claim that as her current position given that the Supreme Court decided in Heller that people do have that right, and I haven’t seen her questioning the Heller decision.”

With all due respect to the law professors quoted by the AFP, the brief that Harris joined absolutely does make the argument that the Second Amendment doesn’t protect an individual right to keep and bear arms. Not only does it talk about the Supreme Court creating a right to do so if it were to overturn the District’s ban on handguns, the brief also includes the following statement:

The District Attorneys respectfully join in the arguments set forth in Petitioners’ brief. For all the reasons set forth by Petitioners, as well as the various reasons advanced by the amici in support of Petitioners, the three statutes at issue in the D.C. Code do not violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia.

So, the amicus brief filed by the D.A.s (including Harris) agreed with the argument put forth by the District of Columbia as to why their handgun ban should be upheld. And what was the main argument of the District of Columbia? That the Second Amendment doesn’t protect an individual right to keep and bear arms, but only “militia-related firearm rights.”

The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes. Instead, it protects the possession and use of guns only in service of an organized militia.

Kamala Harris and the other District Attorneys who offered up their support for the District didn’t say “Look, we think the District is wrong about the scope of the Second Amendment, but we still think the handgun ban is constitutional.” No, they agreed with the District’s arguments, which were based first and foremost on the idea that neither Dick Heller nor any other resident of Washington, D.C. had a right to own a gun at all.

The AFP fact-check failed to contain any statement by Harris in which she professed her belief that the Second Amendment protects an individual right to keep and bear arms, and even the quotes by Harris that AFP used to try to bolster their case were all statements that suggested the Second Amendment posed no barrier to the gun control laws that she was advocating for.

Rather than outright opposition to gun ownership, Harris has supported legislation aimed at increasing safety. Nor has she called for the destruction of the Second Amendment, which says: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

At a Judiciary Committee hearing in March 2018, Harris called for “common sense gun safety laws” and said “it’s a false choice to suggest that you are either in favor of the Second Amendment or you want to take everyone’s guns away.”

She made similar comments at a CNN Town Hall on January 28, 2019, after she announced a bid to seek the Democratic presidential nomination, which Biden later won.

“You can be in favor of the Second Amendment and also understand that there is no reason in a civil society that we have assault weapons around communities that can kill babies and police officers,” Harris said at the 1:06 mark of this video clip.

In the complaint filed with the FEC, GOA and John Crump claim that when Crump tried to raise the issue of the veracity of AFP’s fact check with several Facebook employees, he was brushed aside.

On the same date, Complainant Crump accessed a private “group” on Facebook entitled “guns,” made up of current and former Facebook employees. Complainant then made a post in the “guns” group, opining that AFP Fact Check had incorrectly “fact checked” the Edwards Article, and informing the group that Complainant would be investigating the issue and writing an article on the subject. Complainant Crump’s post quickly was deleted and rendered inaccessible to the group by Facebook. Thereafter, some of the other users of the private group(current Facebook employees) commented that they would raise the issue internally within Facebook.

Crump then tried posting a link to the amicus brief signed by Harris on his personal Facebook page, but claims that his page was disabled by the company shortly thereafter.

That post, which simply contained a link to the Harris Amicus Brief, was deemed “fake news” by Facebook and superimposed with the AFP Fact Check Article. That post has since been deleted and rendered inaccessible by Facebook.On the same date, Complainant sent the following message to [email protected]:
I am writing in article for AmmoLand News and under deadline.The AFP have been marking accurate articles on firearms as false. For example any article the talks about Kamala Harris’s amicus brief in the Heller SCOTUS case is being marked as false, yet these articles are easily verifiable. This leads me to my question. Why does Facebook allow the AFP to keep marking articles as false when a quick Google search would turn up the amicus brief? Attached are some examples.
Complainant Crump did not receive a response to this inquiry. Rather, when he later attempted to log into his Facebook account, he was greeted with the following message:
Your Account Has Been Disabled.
For more information, or if you think your account was disabled by mistake, please visit the Help Center.
In response to clicking “for more information,” the following message then appeared:
Why was my account disabled?
We’ve determined that you are not eligible to use Facebook. This decision is final. Unfortunately, for safety and security reasons, we can’t give you any additional information as to why your account was disabled. For more information about our policies, please review the Facebook Terms.
On the same date, Complainant contacted various person(s) who are current Facebook employees and, on Complainant’s behalf, these person(s) opened what is called an internalFacebook “opps” report (basically, an internal appeal). This internal appeal was quickly denied by Facebook, and no reason was given other than that the decision to lock Complainant’s Facebook account was final and not subject to further review.
Prior to August 19, 2020, Complainant had never experienced any other objection fromFacebook about his Facebook account. The account has always been in good standing, and there has never been any warning, admonition, or any other action by Facebook against Complainant or his account. Thus, there is no activity other than that outlined above which could have led to the disabling of Complainant’s Facebook account.
There’s much more to the GOA/Crump complaint to the FEC, including a similar “fact-check” of a sourced article written by GOA’s Rachel Malone, but the gist of the complaint is that the Second Amendment organization and the journalist accuse Facebook and AFP of using the fact-checking system to make an in-kind contribution to the Biden/Harris campaign by declaring both my article and Rachel Malone’s column to be “false information,” and forcing readers to first click on AFP’s fact check before reading the Bearing Arms article or Malone’s piece, which originally ran in the Houston Courant.
The complaint concludes by asking the Federal Election Commission to investigate the matter and sanction any party that it finds in violation of federal election law.
While I’d love to see the FEC’s response to the allegations by GOA and John Crump, the fact of the matter is that currently the Federal Election Commission is down to just three members. There are supposed to be six commissioners, and it takes a quorum of four to actually launch any investigation, which means that for now, anyway, the complaint isn’t likely to go anywhere.
I don’t know what will ultimately happen with the complaint, but I’ll keep writing and reporting the facts in my posts here at Bearing Arms, including fact-checking fact checkers when need be.