As reported earlier this month, the Justice Department wanted to settle a lawsuit with Defense Distributed and the Second Amendment Foundation over the government’s many years of legally barring the former from hosting and distributing certain computer files that can help instruct devices to manufacture weapons at home. Defense Distributed believed, among other things, that their First Amendment rights were implicated by being legally prohibited from spreading the speech within those files. The government’s official announcement that it was lifting its prohibition of the distribution of such files (the government originally argued spreading the files constituted illegal munitions export, essentially) was supposed to happen today.
Panicked, a trio of gun-control interests (Brady Campaign to Prevent Gun Violence, Everytown for Gun Safety, and GiffordsPAC) tried to muscle in on the lawsuit at the very last minute and prevent the settlement from going into effect. Friday, after a hearing before Judge Robert Pitman in U.S. District Court for the Western District of Texas, their attempt failed, the settlement went into effect, the lawsuit is over, and the files are being freely distributed.
Cody Wilson, the founder of Defense Distributed and maker of the first usable 3D printed plastic gun, explained in a phone interview Friday evening how his opponents tried their legal maneuver in the middle of the night while everyone’s asleep on Wednesday, a clearly “vexatious” attempt to interfere between the two relevant parties that had no legal basis. Given the meaning of his victory for their gun control cause (Wilson thinks the technologies of home gun making via computer instruction will be the death knell of meaningful gun control), “I don’t even blame them.”
The Brady Center and their partners, Wilson thinks, were just hoping to stall resolution of the settlement and “kill us with paperwork and keep us in court” for possibly years longer. “The Judge saw through everything, is the long and short of it” Wilson says. The executive branch, Wilson says, “gets to decide on national security prerogatives” and in a sense Wilson says his side was being forced to defend the arguments of his ostensible legal opponents in the federal government, “which is that the courts can’t review” the decision to let the files be distributed.
“The files are being published,” Wilson says.
While the years of legal fights between him and the federal government are over, Wilson says the state of New Jersey threatened him this week with a lawsuit over his distribution of gun-making files. New Jersey’s Attorney General Gurbir S. Grewal sent Wilson a letter which read in part that “Defense Distributed’s plans to allow anyone with a 3D printer to download a code and create a fully operational gun directly threatens the public safety of New Jersey’s residents.”
Then, making one of Defense Distributed’s core legal points in this whole lawsuit for them, Grewal complained that “Posting this material online is no different than driving to New Jersey and handing out hard-copy files on any street corner.” Indeed, as Wilson has long argued, the information he wanted to distribute should be protected under the First Amendment, just as if he were printing it, as indeed books or instructional pamphlets about gunsmithing already are.
Josh Blackman, a lawyer on Defense Distributed’s side who helped argue this case before Judge Pitman on Friday, says that the attempted intervenors very last minute attempt to throw a spanner in the works required the Defense Distributed team to write over 60 pages of briefs in less than 24 hours. The motions from the three gun control groups were filed very late in the evening on Wednesday, seeking a temporary restraining order on the government to stop them from settling with Defense Distributed.
A hearing was swiftly set up in Austin, Texas, Friday and “after an hour the judge announced from the bench that he’d denied the motion to intervene.” Thus, the settlement went into effect “and the case is closed.” The gun control groups did not bother trying to appeal the judge’s decision and “now there is nothing left to intervene in. They were intervening to prevent the settlement” but the settlement has now gone into effect.
“The important thing to understand is that Brady has no interest here,” Blackman says. “If the government wants to issue a license and thinks its consistent with national security, they can do that.” The gun control groups “suggested Trump is abdicating his role and capitulating on an important issue of national security, and it’s rubbish.” In general when it comes to the Second Amendment, Blackman says, “Trump is taking the same position Obama took.” The change here has nothing to do with the Second Amendment, and is just a matter of shifting policies and responsibilities over ITAR, as explained further below.
As explained in the memorandums of opposition Blackman and his team were forced to produce at such great speed, under existing precedent Brady and the other groups would have to prove the government’s choice to settle “significantly and ‘perceptibly impaired’ the organization’s ability to provide its ‘activities.'” which they failed to do. (Their claim, roughly, was that if the gun-making files were more readily legally available, they’d have to spend more money on their gun control activities.) The suing gun control groups “cannot state a…claim as a means to enjoin an action that hasn’t even happened yet, and in which…they have not yet diverted any resources. There is no injury in fact.”
Further, Blackman and his team (which also included Matt Goldstein and Second Amendment superlawyer Alan Gura) explain in their briefs, the alleged injury Brady and the others imagined from legal ability to distribute those files cannot reasonably be placed on any action of Defense Distributed; their “parade of horribles is premised on a false perception of reality: so long as the government builds a virtual wall around the Plaintiffs [Defense Distributed], criminals and terrorists will be unable to 3D-print firearms. Nonsense.” It points out that such files were, despite the government’s threats to Wilson and his team, as available as could be.
Further, the specifics of the export control laws under which Wilson was being restrained are such that “there is no judicial review of the decision to grant, or not grant a license. The Groups injury cannot be remedied in this Court…The Groups have failed to explain, or perhaps failed to recognize, that the decision to grant the Plaintiffs a license is immune from judicial review. Their purported injury cannot be redressed by an injunction.”
One of the points Brady and the other groups try to make would, if taken seriously, have breathtaking implications, the brief points out:
they state, without equivocation, that the settlement will result in a “direct[] threat.” The claim is breathtaking. Federal courts cannot allow individuals to challenge the Executive’s diplomatic and foreign policy decisions on grounds that such decisions harm their personal security. One can predict an avalanche of citizen lawsuits targeting every foreign arms sale, the “nuclear deals” with Iran and North Korea, decisions to impose or lift embargos, decisions to meet or not meet with foreign leaders or participate or abstain from international organizations, and so on. These concerns may all be legitimate, but they are not a ticket to federal court.
The briefs also touch on the problems associated with Brady et al’s last minute attempt to intervene:
The Plaintiffs have been silenced for nearly six years. Litigation-by-ambush will not force us to consent to an additional moment of silence. Instead, counsel for Plaintiffs stayed up all night preparing these urgent pleadings, and traveled on short notice to attend the hearing…nothing bars them from filing their (meritless) lawsuit against the Government. Indeed, the Plaintiffs are not even named as parties in the groups’ proposed complaint…. to the extent the groups claim that only their intervention could stop the files’ publication, that proverbial ship has long ago sailed out the previously open barn doors with the published files, which just about everyone on the Internet continues to be free to publish without any governmental interference—everyone, that is, except the Plaintiffs.
The brief concludes addressing theories that this settlement was reached because of some sort of sinister pro-gun agenda on the part of the Trump administration while explaining the legal changes overtaking export control law enforcement that were in play:
While this case was being litigated, the Obama and Trump Administrations have engaged in a sophisticated and detailed plan to transition the regulation of certain technical data from the jurisdiction of the State Department to the jurisdiction of the Commerce Department. And, in May 2018, the State Department announced its plan to amend ITAR to that effect. That shift placed the Department of Justice in an odd position: the Plaintiffs, and the Plaintiffs alone, would still be litigating against a soon-to-be-repealed State Department regime….Reasonably, the Plaintiffs and Defendants reached a settlement agreement. It’s that simple. In today’s rancorous culture, it is unfortunate that friends of the court have charged the federal government with bad faith, based on wild speculation.
As a separate filing regarding Friday’s hearing elaborated, the above jurisdictional move regarding ITAR means “Department of Commerce Export Administration Regulations (“EAR”)….will require licenses for exports of firearms, [but] the EAR does not impose a prior restraint on so-called “technical data”—that is, public speech.”
That the files Wilson wanted to distribute, and was uniquely prohibited from doing, constitute speech and not munitions export was the core of his long legal fight, a fight that’s now over.
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