SAF, Dept. of Justice Settle Defense Distributed First Amendment Lawsuit

Cody Wilson Defense Distributed 3D Guns SAF DOJ Suit

courtesy radiofreedom.us

It appears that the Second Amendment Foundation has reached a settlement agreement with the Department of Justice in the suit they filed challenging the State Department’s mandate that Defense Distributed take plans for 3-D printed firearms off of their website in the name of national security.

As we reported last year,

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.

Now, however, in a press release from attorney Josh Blackman, it appears that Defense Distributed and SAF have reached a very advantageous settlement with the Department of Justice. And the release contains this paragraph:

Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.

That distant sound you hear are heads exploding on the anti-gun left.

Here’s the press release:

DOJ, SAF REACH SETTLEMENT IN DEFENSE DISTRIBUTED LAWSUIT

For Immediate Release                                      Contact:  Alan Gottlieb (425) 454-7012

BELLEVUE, WA – The Department of Justice and Second Amendment Foundation have reached a settlement in SAF’s lawsuit on behalf of Cody Wilson and Defense Distributed over free speech issues related to 3-D files and other information that may be used to manufacture lawful firearms.

SAF and Defense Distributed had filed suit against the State Department under the Obama administration, challenging a May 2013 attempt to control public speech as an export under the International Traffic in Arms Regulations (ITAR), a Cold War-era law intended to control exports of military articles.

Under terms of the settlement, the government has agreed to waive its prior restraint against the plaintiffs, allowing them to freely publish the 3-D files and other information at issue. The government has also agreed to pay a significant portion of the plaintiffs’ attorney’s fees, and to return $10,000 in State Department registration dues paid by Defense Distributed as a result of the prior restraint.

Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.

“Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called ‘weapons of war,’ and with this settlement, the government has acknowledged they are nothing of the sort.

“Under this settlement,” he continued, “the government will draft and pursue regulatory amendments that eliminate ITAR control over the technical information at the center of this case. They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech. That will allow Defense Distributed and SAF to publish information about 3-D technology.”

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms.  Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

comments

  1. avatar million says:

    “They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech.”

    which implies that ITAR still imposes prior restraint on public speech.. but hey i’ll take a win at the intersection of 1A and 2A!

  2. avatar Geoff "Mess with the Bull, get the Horns" PR says:

    “That distant sound you hear are heads exploding on the anti-gun left.”

    And about time.

    Can anyone tell me if this news blurb means anything significant for us? :

    “Republicans kill Obama’s awful ‘Operation Choke Point'”

    “The U.S. Department of Justice is officially putting an end to Operation Choke Point, the Obama-era effort to cut off from access to banking services a long list of lawful-but-disfavored businesses including gun dealers and makers of small loans.”

    https://www.washingtonexaminer.com/republicans-kill-obamas-awful-operation-choke-point

    1. That story is almost a year old. It’s no longer DOJ practice to encourage financial institutions to treat gun-related businesses like porn or drug purveyors.

      Instead, now they’re doing it on their own.

      1. avatar Geoff "Mess with the Bull, get the Horns" PR says:

        Duh, me.

        *facepalm*…

  3. avatar ACP_armed says:

    “Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.” [emphasis added]

    Now that is something to put in the face of gun (owner) controllers, the AR-15 is not a “weapon of war” or “military style assault rifle” it’s just a rifle.

    So could this be a defense against an “assault weapon” ban?

    1. avatar Jon in CO says:

      It COULD be used as a defense argument in court to repeal current AWB’s, but that would require someone generally to be thrown on the sacrificial alter for the good of the rest of us. IANAL, but I would think it might only hold weight in the 5th circuit, but I could be wrong.

      1. avatar MeRp says:

        IANAL either, but I think settlements hold no water in any court except with regard to the case being settled. They do not set precedent.

        1. avatar LKB says:

          It may not be precedential or officially binding on the government (except as concerns DD), but it still is a big deal.

          This is the United States government — Uncle Sam — saying, officially, that AR’s are not inherently military. That’s now admissible evidence in every case that challenges an AR ban, and is going to swamp the attitude of “but we all know that these are weapons of war, so we don’t need no steenkin evidence” that some courts have expressed (see, e.g., the 4th Circuit’s upholding of Md’s AR ban — which I sure hope somebody challenges again once Kavanaugh is confirmed).

        2. avatar Rad Man says:

          The DOJ statement is sure to be used as “persuasive authority” (non-binding) in any future relevant court case.

      2. avatar Nigel the expat says:

        Not just in court, but this should be rolled out every single time that the anti’s use language like ‘assault weapons’, ‘military grade weapons’, ‘weapons of war’, to call them on it and make it plain that they are using disingenuous inflammatory rhetoric–that has been ‘officially’ debunked by .gov–, that they are demonstrating their ignorance, or both.

  4. avatar Sam I Am says:

    “Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.”

    Isn’t this the same reasoning that allows SBRs, sawed off shotguns, and other weapons not suitable for military use to be regulated as not infringing on 2A? Or ma I just getting my infringements mixed up?

    1. avatar LKB says:

      Just the opposite. US v. Miller upheld the ’34 Act regulation of SBS’s under a claim (which was never actually litigated, as the case was never actually tried) that SBS’s had no military value, and thus were not the sort to be useful to a militia. (Had the case actually been litigated, there could have been evidence presented that SBS’s were, in fact, widely used in the trenches in WWI.)

      The Fourth Circuit’s goofy opinion upholding Md.’s AR ban went the other way, holding that *because* AR’s were military weapons (without, of course, any evidence that any military in fact uses semiauto AR’s), regulation was permissible. (The disconnect between that case and Miller is only one of myriad flaws of that result-oriented decision.)

      1. avatar Sam I Am says:

        And the current case declared the common semi-auto rifles were not useful for military. Hence, my question. Wasn’t “not useful for military” what got us NFA? If not useful for militia, then are these weapons not justly eligible for whatever restrictions are desired?

        1. avatar LKB says:

          ’34 Act had nothing to do with “not useful to a military, ergo can be regulated.” Crikey, the main thing the ’34 Act regulates are machine guns and destructive devices, which is why you can’t just go to the LGS and pick up a Ma Deuce on your way home.

          Originally, the ’34 Act would have banned possession of machine guns, destructive devices, suppressors, and handguns. They then added SBS’s and SBR’s to the proposed ban to keep people from circumventing the handgun ban. However, the DoJ opined that such a law might be found unconstitutional, and so they stripped handguns from it (but then inexplicably left SBR’s and SBS’s in), and changed it from an outright ban to a $200 tax (which in 1934, effectively banned them for all but the very wealthy).

          The “no military utility” argument was a fig leaf the Supreme Court concocted in US v. Miller to justify reversing a lower court decision finding that the ’34 Act regulation/taxation of SBS’s violated the Second Amendment. (That case is procedurally strange for all sorts of reasons — worth reading up on.)

  5. avatar Hannibal says:

    There isn’t much to celebrate here. The current caselaw says that they can exercise prior restraint all they want, and the only way to reverse that would be to have SCOTUS negate it (which might be doable coming up soon).

    THIS Justice Department can decide not to enforce the previous (bad) decisions, but as well know, that has no bearing on what the next one will do.

  6. avatar LKB says:

    Unfortunately, the description of the case is not accurate.

    DD filed suit and asked for a preliminary injunction blocking DoS’s actions. District court refused to grant the preliminary injunction, **but did not decide the merits of the underlying case.**

    Denial of injunction then appealed to Fifth Circuit on interlocutory appeal (you typically can’t appeal until the case is tried, but there’s an exception from grants/denials of temporary injunctions). CTA5 panel voted 2-1 to affirm the trial court, finding there was no abuse of discretion in denying the injunction, **but again not reaching the merits.** Strident dissent by Judge Edith Jones (disclaimer: I clerked for her on the Court three decades ago) that essentially gave DD a road map on how to try the case when it went back down.

    DD unsuccessfully tried to get en banc and Supreme Court review of the appellate decision — which, again, **was not on the merits.**

    As I read the decision, it was a narrow one that simply refused to second guess the district court’s decision not to grant a preliminary injunction (which is an extremely common practice), but especially given the points raised by Judge Jones DD was going to have a downhill run when the case was actually tried. With a new DoJ in place (OK, at least in some quarters), I’m not surprised that they essentially surrendered — which is what they’ve now done.

    1. avatar Geoff “Mess with the Bull, get the Horns” PR says:

      “I’m not surprised that they essentially surrendered — which is what they’ve now done.”

      Could they have been fearful of it being grated cert. by a newly-conservative SCOTUS and the likely decision setting precedent?

      (Kinda like the DC circuit passing on challenging the shall-issue case?)

      1. avatar LKB says:

        They were afraid of losing at the district court when the case was tried on the merits (I reiterate: the appellate decision was explicitly **not** on the merits).

        The reality of this case is not of law but realpolitik: DoS’s position was, from a legal perspective, a very bad joke, as any constitutional lawyer will tell you. But the Obama administration felt it had to “do something” about 3d printed guns and magazines when Cody started tweaking their nose about it. Now that many of the Obama-era folks are gone from the DoJ and DoS commands (not nearly enough, IMHO), saner heads have prevailed, and have now dropped this ill-considered position.

        1. avatar Sam I Am says:

          Yeah, only government believes it can put the paste back in the tube.

          Long ago, a DOD industry mag printed open source information in an issue, about a subject DOD didn’t want to talk about. DOD got permission to squelch the further production of “classified material” (already publicly available in libraries). The magazines still at the printers were confiscated, and every commercial airplane was searched for copies of the now contraband magazines. Individual subscribers seemed to be exempt, somehow.

          Then, the real press in those days launched a couple of articles about the fiasco, and DOD finally had to admit that it was impossible to classify previously publicly available materials.

          The next iteration of this “Through the Looking Glass” mentality came only three years later. Those of us with specific high level clearances had to sign an NDA about our work. The silliness was the wording to the effect, “information and data that is currently classified, and could, at some time in the future become classified” could not be discussed, circulated by any means, or acknowledged. Failure to sign the NDA immediately upon presentation would result in immediate discharge from the military, and possible court martial action for refusing a lawful order.

          There were days we believed we worked for The Three Stooges.

    2. avatar raz-0 says:

      Thanks, your explanation makes way more sense than what I have been reading on this.

  7. avatar Texican says:

    Tench Coxe said: “Who are the militia? … Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of am American.” At that time militia eligible men were those aged 16 to 60. Anything that has or will ever be used to fight in a war are the birthright of an American. Full stop. Too bad we have to waste time with those who don’t understand that concept.

    1. avatar Ed Schrade says:

      Texican…I was reading a book about the famous Texas Ranger, Frank Hamer. The book was authored by a retired cop from California and you can tell it. In one part of the book, he references that the National Guard was called out to quell riots and then a few sentences later refers to the guard as the militia. Don’t believe they are one in the same. This is the liberal definition used to push the second amendment supposedly meaning the right to bear arms means national Guard and not citizens. When the Second Amendment was written there was no National guard that I am aware of.

  8. avatar mark1955 says:

    False Flag Alert…Apologizes for Thread “Hijack”!

    This Friday is FRIDAY THE 13th ( A key date for Satanist and the illuminati ) I fully expect some type of STAGED False Flag this week. Some possibilities:

    1. FBI STAGED Mass “Shooting” to Try and get more Gun Control!

    2. US/NWO STAGED Naval Confrontation vs China/North Korea!

    3. US/Israeli STAGED chem/bio attack against Syrian people Falsely Blamed on Syria’s President Assad and military!

    4. Israeli STAGED False Flag Falsely Blaming Iran!

    There are endless possibilities for this FRIDAY THE 13th but if “Anything” happens, please call it out for the STAGED Farce that it is, so we all don’t lose any more of Our God Given Rights under the guise of, “To protect us”!

  9. avatar Southern Cross says:

    So the DOJ are worried about 3D printer files but completely ignore freely available engineering diagrams and CNC files.

  10. avatar Arc says:

    Sounds like the DOJ settled to keep the status quo. They knew if the case went to the COTUS, they would lose. The second Amendment / COTUS was written and intended to cover all arms, including military arms. But what to I know, I only read history and swore to support and defend the COTUS and bear true faith and allegiance to the same…

    There is no distinction in the COTUS between recreational arms and military arms.

  11. avatar Chip in Florida says:

    “.. the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.”

    This makes me happy. This is a quote I am putting at the top of my list for rebuttals to any idiot that uses the terms ‘weapons of war’ or ‘military grade/style’ in reference to firearms.

    *You* can call them weapons of war but the Department of Justice disagrees with you.

    1. avatar Mark H says:

      Department of State.

      DoS is responsible for enforcing ITAR.

  12. avatar Cletus the Slack Jawed Yokel says:

    Thanks for your comment LKB, I’m not really knowledgeable about these matters, but I could not understand how the US Government could legally block someone from posting the plans for an AR15. It’s good to know they really can’t.

    Especially when any real foreign terrorist can just call Iran or any number of other countries and get all the AK rifles they want.

    If you were a terrorist which would you rather use?
    1. An AK47
    2. A 3D printed plastic lower and an AR15 parts kit assembled by fellow terrorist.
    3. A big truck bomb assembled with easily obtainable chemicals

    This whole thing was really stupid. It reminds me of the hysteria that one of the news shows like 60 Minutes was foaming about maybe 10 years ago. It seems that a few very wealthy people bought the demilled remains of a couple of Cobra Gunships and rebuilt them into flying helicopters. They started with a fuselage that was chopped into 3 parts and I’m sure they had spent millions of $ to get them airworthy. They had some ‘expert’ who was crying about how dangerous this was. I was just thinking that if I was a terrorist, the last thing I would do is spend several years and millions of dollars on a scary helicopter when you can just rent a UHaul and go to the farm supply store.

  13. avatar mark1955 says:

    Great News but we Can’t Let Our Guards Down!

    I Fully Expect .gov to not take this Lying Down!

    Get ready for the FBI to Try and Stage a False Flag Mass “Shooting” soon with “Ghost Guns” as the Firearm, ( Possibly this Friday the 13th ) using ‘crisis actors’ and where no one is actually Killed, to Try and create a Firestorm to pass legislation Banning “Ghost Guns”!

    Fully expect FRAUD Trump and the entire republican party to get behind this legislation!

  14. avatar AJ says:

    Where is the part in the BOR that specifies “sporting purposes”?

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