Last fall, the Fifth Circuit Court of Appeals ruled that Defense Distributed’s First Amendment rights were trumped by national security interests. In plain English . . .

John Kerry’s State Department had asserted that Defense Distributed on-line distribution of plans for 3-D printed weapons presented a threat to national security. They ordered DD to take the plans off of their site.

As you might expect, Defense Distributed’s founder, Cody Wilson, didn’t take State’s order lying down. With the help of the Second Amendment Foundation, he sued the State Department on free speech grounds. And in a 2-1 decision last September, he lost.

Their next move was to ask for an en banc hearing of the case by the entire Fifth Circuit. But in a ruling that was handed down today, Defense Distributed’s motion was denied in a 9-5 vote.

Circuit Judge Jennifer Walker Elrod has written a scathing dissent (read the entire ruling here) based on three factors:

1) a failure to consider the suit’s ultimate likelihood of success

2) the justification for prior restraint of free speech based on a flimsy assertion of “national security” by the State Department and

3) what Judge Elrod considers a flawed analysis of the irreparable harm done to Defense Distributed by the State Department’s prohibition

As Judge Elrod summed up her dissent,

We have been warned that the “word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” N.Y. Times, 403 U.S. at 719 (Black, J., concurring). Unfortunately, that is exactly what the panel opinion has done.

You’d assume that at this point Wilson and SAF are now weighing whether to appeal their case to the Supreme Court. We’ll be watching. Stay tuned.

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51 Responses to Fifth Circuit Denies En Banc Hearing of Defense Distributed’s First Amendment Suit

  1. Apparently you can stop the signal, Mal. Although the genie is out of the bottle and technial information, no matter the subject, should never be restricted.

  2. National Security, whatever that may mean at whatever time, is premier over everything else. If the nation is not secure from enemies, the nation can be defeated, rendering any notion of civil rights moot.

    Are we on the brink of saying the president has national security power to stop immigration, but not the national security power to stop transfer of weapons technology?

    FISA, Patriot Act established childhood’s end. Why should anyone be surprised or outraged? Nothing can be done about it.

    • Yeah… Please tell me more about how 3D printing instructions for a polymer one shot pistol constitutes “weapons technology” that’s a threat to national security. The president has every right to keep any person or any group of persons out of this country at any time for any reason. That’s black letter law. In your example, you have to actually PROVE that “national security” is involved.

      • “In your example, you have to actually PROVE that “national security” is involved.”
        Only to a FISA court, which State did not approach. One of the surprising things is the feds did not confiscate Cody’s entire body of assets under asset forfeiture. They missed a trick there.

        The state department determines what qualifies as weapon technology, under federal and international law. Courts are not in any position to evaluate such designations.

        Rights and security are always in tension, but without a secure nation, “rights” effectively do not exist. The constitution is not a suicide pact, forcing the nation into dissolution in the name of the constitution.

        • “Please cite the part of the CotUS granting the State Department such authority.”
          Art 1: Sec 8:
          “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

          Laws are executed by the Executive branch, implementing acts of Congress. The ability of the Executive to fashion rules and regulations implementing congressional acts has not been overturned by the Supreme Court. Individual laws/regulations have been constrained by courts, but never has the making of rules and regulations been completely invalidated. Thus, Congress can pass the laws, and the Executive can fashion rules for the departments.

        • ” i assume you’re paraphrasing the majority opinion. at least in principle.”

          In what sense? Tension between “rights” and “security”? The notion that without a nation, “rights” in that defunct nation are moot? “Security” must sometimes take precedence over “rights”?

        • I’m sure I must have missed the part of your citation where this authority overrides the 1st and 2nd amendment…

        • You asked for the authority for the State Dept to determine what is a weapon, and what it not. The issue can be twisted into a 1 or 2 amendment dust-up, but the fact is no one has a constitutional right to provide “weapons” to current and future enemies of the country. The prohibition of providing “weapons” to national enemies is not an infringement on anyone’s constitutional right.

          But, you asked for constitutional authority for State to determine what is and is not a weapon.

        • Yeah… Still not seeing that authority. Congress can’t grant an authority to an executive agency by creating it out of thin air. The authority must exist in the CotUS to begin with. You keep creating phantoms out of thin air that are somehow “enemies” of the United States that benefit from designs with no realistic military application.

        • Thinking that legislation/laws must trace directly and exactly, word for word, back to the constitution is immature. Congress has constitutional power to pass laws. Executive has power to implement congressional law. That is the entire chain of authority. Courts can decide that laws are unconstitutional. Congress determines which laws are passed under Article 1, Sec 8. Executive implements the law as written, or interprets the law as best it can. Congress can override Executive regulations with clarifying legislation. All within Article 1, Sec 8. Congress has not seen fit to correct State in creating regulations regarding what is or is not a weapon. State responds to the congressional legislation, which is legitimate under Article 1, Sec 8, until courts rule otherwise, or congress clarifies or removes authority.

        • Congress has no authority to pass laws outside the authorities granted to it by the CotUS.

        • What part of Article 1, Sec 8 is difficult? Congress can pass laws. Executive can implement. The constitution establishes the State department. State determines what item is a weapon. State controls flow of arms between US and other countries. Where is the constitutional conflict? Control of weapons flowing to foreign nations does not violate the second amendment. Determination of what is or is not a weapon in international trade does not violate the first amendment. If State declared that writing a gun review constitutes a weapon, then the first amendment would be involved. If State declared that writing about a weapon is a weapon, maybe there would be a first amendment issue. The executive branch determines which/what information involved in government operations is subject to rules of classifying information and data. Unauthorized release of classified information by a person charged with protecting that information is a crime. Publishing that information by a third party is not a crime; it is a first amendment freedom. The originating classification is not a violation of the first amendment. The whole 1/2 amendment approach is an attempt to avoid challenging the authority of State to determine what is and is not a weapon. It is a legal dodge. Cody’s lawyers understand they cannot prevail at overturning the authority of State to make weapon determinations. The lawyers are attempting to hide the pea and claim the matter is about publication.

        • I don’t particularly care what powers Congress has given itself. None of them are valid unless supported by actual power within the CotUS. The CotUS does not grant any branch of government the authority to regulate the distribution of weapons in any way.

        • The constitution does not recognize a natural, civil and human right for people to export weapons. Keep and bearing are not synonyms for trade with foreign governments or agents. Article I, Section 8, Clause 3, “…Congress shall have power o regulate Commerce with foreign Nations, and among the several States,…”

        • So… in the absence of any evidence of risk, invoke the magic word, ‘security’, and the bill of rights is so much toilet paper? Not only no, but HELL no.

        • “Not only no, but HELL no.”

          Not only “Yes”, but HELL “yes”.

          And now you know the rest of the story. Good Day !

        • “Please cite how 3D PRINTING is a national security threat.”

          First, the event/case revolves around State’s legal (not commenting on whether ‘constitutional’) authority to classify items as weapons. The ‘constitutional’ issue presented is not related to the authority granted by law derived from legislation and the constitution.

          Second, people in the US exporting arms or arms information, without license constitutes a threat to the US that said arms/information will be used to harm US citizens. That is a matter of ‘national security’. Same as holding people in Cuba because they wage war against the US in the Middle East, not in the US.

          Third, the ‘constitutional’ issue presented in court (1st Amendment) is an admission that State (representing the US government) has legal authority because that authority is not being challenged. The claim of 1st Amendment violation is an attempt to incidentally challenge State’s authority. In short, a ruse.

          Fourth, the import and export of anything is a matter of national interest. State has the major authority to control exports:https://www.state.gov/strategictrade/overview/

        • Sam I Am, “the foregoing powers” is the key phrase in your Section 8 quote. I’m pretty sure Pwrserge is asking which of the foregoing powers. The answer to that is the power to regulate international trade and maybe some others like providing for the common defense or something. Congress can’t just pass laws because they feel like it. Look at U.S. v. Lopez. There is also a 9-0 decision authored by Ginsburg striking down a federal law against arson for being well beyond the federal governments power.

          Serge’s other point about enumerated powers not trumping the SUBSEQUENTLY enacted bill of rights if perfectly valid.

      • Actually, I don’t need a 3D printed gun, I can go buy a gun. But there are places in this world where you cannot, and that is where DD is valuable. It will be interesting to see how SCOTUS rules.

    • “National Security, whatever that may mean at whatever time, is premier over everything else.”

      Because of the dozens of times continental America has been attacked, invaded… much less overwhelmed with plastic, single shot guns… not.

      I suspect there are plenty enough of real guns to repel such an attack… if any outfit ever even dreamed of trying it.

      • > Because of the dozens of times continental America has been attacked, invaded… much less overwhelmed with plastic, single shot guns… not.

        While not plastic I believe the first and last time that happened was 1812….

    • Sam I Am,

      If we had free and unfettered ability to exercise our Second Amendment rights everywhere in the United States, there can be no threat to our national security other than nuclear, chemical, or biological weapons of mass destruction deployed against us. Since this case does not involve the distribution of plans to make such weapons of mass destruction, I do not see how such plans constitute a threat to national security.

      What does constitute a threat to national security is a government that interferes with our ability to design, innovate, and manufacture firearms for We the People.

      Think about it this way. In the month of November, something like a combined 5 million people go afield to hunt deer in the states of Wisconsin, Illinois, Indiana, Michigan, Ohio, and Pennsylvania. Those people have varying degrees of woods craft, tracking, camouflage, and marksmanship ability. What foreign army could constitute a serious threat to national security in that region of our nation facing those 5 million hunters???

      • Looking for an invasion by air or sea is unproductive. Invasion by border crossings (last I heard, about 1/3 of the Mexican economy lives in the US), by over-stayed visa, are the more likely threats. Providing enemies still outside the border with weapons, ability to make weapons, plans to make weapons does nothing to increase our national security.

        • Fig leaf much? There is no benefit to any potential hostile party from having access to models of weapons that are already well distributed and common knowledge. IF you were talking about a drone or the latest chemical weapon, you’d have a point. Small arms? Not so much.

          The State Department has no leg to stand on and whomever signed that order needs to be stood up against the wall and shot.

        • “The State Department has no leg to stand on and whomever signed that order needs to be stood up against the wall and shot.”

          State has authority. State acted. Whether or not State acted properly is for the courts. The attempt to turn authority of an Executive Branch department into a publication issue is an attempt to get around the authority for State to determine what is and is not a weapon. If the Cody’s lawyers thought they could prevail against State’s authority to declare characteristics of a weapon, the attorneys would have gone that route.

  3. Its ok – the 3d files are all available on the Swedish file sharing site the Pirate Bay – who, even though they are not supporters of firearms, refuse to remove it in the name of free speech and freedom of information.

    It’s a nice package too – you have a few AR lower options (from multiple pieces screwed together to a solid block of plastic) as well as files for glock, AR and AK “standard capacity” magazines.

    • Yup. I downloaded them when the whole debacle began years ago. I’ve been seeding those torrents continuously since then, uploaded hundreds of GB of that data since then. Thats the only torrents I have ever seeded, but figure it’s me doing my part.

  4. But the government by proxy can sell all manner of vehicles, weapons and explosives to our “friends”

    But when a private citizen wants to distribute plans, not an actual product, for free.. he gets shut down.

    This is not freedom, this is not liberty, this is a well maintained pasture.

  5. This is just a preliminary-injunction decision. The real trial has yet to take place. Cody might ask SCOTUS to intervene at this point, but they probably won’t. The real test, however, is the final outcome of the trial and any appeal that might follow.

  6. Picky nit: the decision to deny rehearing en banc was not 2-1, it was 9-5. A petition on rehearing is voted on by all the active (non-senior status) judges on the Court, with a majority vote required to rehear the case before the entire court.

    Let’s also not lose sight of the procedural posture of this case . . . it is only an appeal from a denial of a temporary injunction (one of the few times when you can appeal before the case is decided on the merits). While I agree with Judge Jones (for whom I served as a law clerk three decades ago, BTW) and Judge Elrod that such denial was clearly in error, there’s no question that getting a preliminary injunction against the federal government is usually a *very* heavy lift (unless, of course, you want to enjoin PDT’s executive orders, in which case you just find yourself a friendly liberal district judge who will ignore the law for you).

    The DD case hasn’t been heard on the merits yet, and the federales will have an uphill fight for all the reasons Judges Jones and Elrod point out. And by the time the case goes back up, PDT should have filled three open slots on the Fifth Circuit, which should significantly change the drift of the Court.

    Of course, there’s nothing stopping the Trump DoJ from simply and immediately either (1) withdrawing the underlying State Department ITAR determination, thus mooting the case, or (2) deciding not to oppose the case (a-la the Obama DoJ in various environmental and other cases).

  7. When the anti-gunners lose… en banc hearing is granted immediately which reverses the previous decision. But when judges ignore the 1st and 2nd Amendments it’s just fine.

    Meanwhile the republicans are tripping over themselves.

  8. This is a real slippery slope. What if you post a list of dimensions to a particular firearm? Or a series of high resolution images from which you can ascertain the dimensions? How about detailed schematics? What if the code on your site only permitted you to print out an 80% receiver and the patches to it were available on some bit torrent? Also, I thought National Security pertained to things that were classified. Kind of a stretch to place smokeless powder implements in that category. Ridiculous.

  9. High School Chemistry books are a bigger threat to National Security than some Gcode for an AR-15.

    Stupid is as stupid does.

    • I’ve had a number of deeply informed discussions about how quick and easy it is to build a genuine internationally controlled WMD out of things you can buy in each and every grocery/hardware store in america for less than $100 that would most certainly agree with that sentiment.

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