The Defense Distributed Settlement Isn’t a Done Deal…Here’s What’s Next

3D Guns Defense Distributed DEFCAD

courtesy wired.com

By PA Deacon

What exactly happened with the lawsuit that Cody Wilson’s Defense Distributed (DD) filed against the State Department? Specifically, why did the State Department settle the case to allow DD to put its files for 3D printed firearms on its website, DEFCAD?

The Agreement

The State Department stated that the DEFCAD files posted by DD are exempt from the licensing requirements of the Arms Export Control Act’s implementing regulations known as the International Traffic in Arms Regulations (ITAR). In the settlement, State only said that the files are exempt, but didn’t give a reason or criteria to define the exemption.

Instead, the State Department agreed to publish the rationale and definitions of the exemption in a public rule making. That implies DD’s lawsuit triggered a new type of exemption for the public sharing of non-military weapon designs and information.

Under 22 CFR 125.4 (b) the State Department lists exemptions from ITAR. It is interesting that subsections (b) (1) through (12) detail very specific reasons for exemption, but subsection (13) basically reads that something is exempt from ITAR if the State Department says so.

We will all take the win for an exemption, but that sort of ambiguity is dangerous.

Free Speech

In its settlement with Defense Distributed, the State Department said that it would draft a new federal rule in the Federal Register to exclude the type of technical data that Defense Distributed put on DEFCAD. The new rule may explain why the State Department agreed to settle and permit publicly sharing the weapon design information published by DD.

Drafting a new rule can take weeks, months, or even years. According to the settlement, while the State Department is drafting the rule, it will put an announcement on its website that the State Department is temporarily permitting public sharing of DD’s files.

The announcement will be online on or before July 27, 2018. In that announcement, State may include the reasons why it settled with DD, agreed to temporarily exempt the weapon designs from ITAR, and why the State Department committed to a new rulemaking to address when publically sharing weapons designs is exempt from ITAR.

People of the Gun are not the only ones interested in knowing why the State Department settled with DD. The Brady Campaign to Prevent Gun violence filed a Freedom of Information Act request (FOIA) to answer that question. This is ironic because the Brady Campaign is using a FOIA request in order to find new ways to suppress the freedom of information.

The Fate of Military Equipment

According to the press release from the Second Amendment Foundation, 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 sounds great, but the devil is in the details of the new rule.

First, this settlement agreement is not the same as the final regulation. The settlement may be helpful in another, future lawsuit, but this settlement cannot bind the outcome of the final regulation. Furthermore, the final regulation may not even mention the settlement’s definition of “Military Equipment.” It is important that the State Department cement this distinction in a binding government document, like the pending new rule.

Second, the State Department only promised a process to address the regulation. That process may be favorable to gun owners or it may be so narrow as to barely affect our purchase and ownership of firearms and the designs to make them.

The State Department will first publish a Notice of Proposed Rulemaking (NPRM) that will detail the potential new regulation exempting certain firearm designs intended for sharing. The NPRM will also detail the time period for the public to submit comments on the proposal in support or opposition.

This is a critical phase of the notice-and-comment process. After the comment period, the State Department may receive so much negative feedback on its proposal that it determines it should craft something much more restrictive of gun rights.

What To Expect

Based off the information we have now, we can make some cautious inferences as to what this could mean for gun control.

The State Department agreed to settle because it determined that the regulations don’t permit the government to prevent file sharing. State also realized that the files don’t fit within any of the current exemptions. That’s why the State Department relied on the catch-all exemption in 22 CFR 125.4 (b)(13).

Since the settlement included a definition of military equipment as being larger than .50 caliber and fully automatic, the new proposed rule might be an important defense for America’s most popular rifle.

But, this depends on how the State Department drafts the new proposed regulation.

Payback

Almost as gratifying as the settlement is the fact that the State Department agreed to pay Defense Distributed’s legal fees, totaling $39,581. I know its tax money, but I choose to look on the bright side. It’s a donation to the cause.

comments

  1. avatar Rememberlexingtonandconcord says:

    Where was the ACLU in all this? This would have been an excellent place to make a stand on the extent of our right to free speech as protected by the Constitution.

    We as People of the Gun should call out all civil liberty organizations out on this. Either they protect liberties for all of us, or admit they are nothing more than a mouthpiece for the Leftist agenda.

    1. avatar TrueBornSonofLiberty says:

      The George Soros funded ACLU has just very recently came out and said the Second Amendment is not an issue they will defend. Period. (Having nothing to do with this particular case, but in general)

      1. avatar arc says:

        Only certain civil liberties apply to certain people, aka the more equal animals.

      2. avatar LarryinTX says:

        That’s not real recent, pretty sure it was 10+ years ago, recall because before that I was donating to ACLU. Couldn’t figure how to get my money back, think they should be sued for fraud, RKBA is very clearly a civil liberty.

      3. avatar JC says:

        Hell, the ACLU now says they won’t now defend the *1st Amendment*, in some cases. The ACLU is an organization caught between forces on the Left and extreme Left, these days.

        I expect the ACLU as it existed doesn’t have a long-term future. Leftists are simply no longer willing to defend the rights they used to claim were important.

    2. avatar Nigel the expat says:

      The ACLU now only counts 8 numbers when counting to 10. Now in addition to ignoring the 2nd, they have been caught internally saying they will not be supporting the 1st (unless it feelz good).

      1. avatar LarryinTX says:

        Really. I had not heard that. Wow.

    3. avatar PistoleroJesse says:

      The ACLU is on the brink of being obsolete.
      https://reason.com/blog/2018/06/21/aclu-leaked-memo-free-speech

      1. avatar little horn says:

        i used to have some respect for the ACLU but over the last few years, i’ve had to take that card back. for the reasons everyone has listed.

        if it was JUST guns they were against i could, and have, let that slide but now they are just expanding their egotistical attitude. ironic they are turning into the fascist they are supposed to protect against.

    4. It really is surprising that the ACLU did not jump into this case. They have gotten involved in 2A cases when another right – one they care about – is involved. For instance, they came out strongly against using the “no-fly list” on due process grounds.

    5. avatar Calin Brabandt says:

      The ACLU? Are you kidding me? Even the NRA and the NSSF have snubbed Cody. At least the SAF was willing to take up the cause!

      1. avatar JC says:

        The NRA did not “snub” him. The NRA isn’t the cavalry, they are the artillery. There are various organizations better equipped and tasked with fighting those cases, and they’re NOT the NRA.

        Even so, SAF works closely with the NRA on multiple items, and you can bet the NRA is pleased with this outcome.

        Stop shitting on the organization that acts as the umbrella that permits many of our most effective organizations to do their work unknown and unmolested by the gun controllers.

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

    And what’s to stop a future Leftist administration from reversing the ‘interpretation’?

    1. avatar Texican says:

      It doesn’t matter what a future administration does. By then computer files of guns will be all over the intertubes never to be erased.

      1. avatar arc says:

        I’m surprised someone hasn’t taken caliper measurements from a 20MM anti-tank rifle and made a CAD drawing out of it yet. For a rifle that large, anyone that can cut the parts can probably turn their own brass and bullets.

      2. avatar David Wehlage says:

        …and the Supreme Court will be loaded 6-3, maybe even 7-2 with Constitutional originalists, for the next two decades at least.

      3. avatar Cuteandfuzzybunnies says:

        They already are. I’m surprised full auto files aren’t available. They likely are also.

    2. avatar Boba Fett says:

      Nothing! Nothing at all! Gotta love bureaucracy.

  3. avatar arc says:

    IMHO, ITAR is unconstitutional. The constitution makes sees no difference between a flint lock and an anti-tank rifle. It sees no difference between the bottle rocket and surface to air missile. Not that there are too many people who both want and can afford such armaments.

    If ITAR is preventing people from publishing a weapons design, then ITAR is flawed and is infringing on first and second amendment rights of Americans. If its my property, I absolutely should be able to give or sell it to whom ever I please, unless I’m not really free, and its not really my property. If I have the right to speak freely, the right to publish my written works, The right to publish my artwork, then I have the right to publish my designs as well.

    Congress needs to remove the infringing portions of ITAR. If the government doesn’t want to export, good for it, but the same should not be applying to free people.

    1. avatar California Richard says:

      The meat and potatoes of ITAR was meant to prevent our enemies from obtaining cutting edge and/or strategic weaponry or the information on how to build it. The hope was/is that our fighting men will maintain an edge and thus mitigate our battlefield losses…… Like everything else the left touches, ITAR was weaponized by the progtards for domestic oppression. Justifying the DD decision is easy: technology and information that has been widely and freely available to the public since 1958 is not covered by ITAR. A cave man in northern Pakistan can make a better COMPLETE weapon by hand that is more likely to kill more innocent people, than a plastic printed reciever. This limitation unnecessarily burdens the 1st ammendment protected free speech of a law abiding citizen.

  4. avatar Joe R. says:

    Obviously [just read the ITAR regs – if their website works: https://www.pmddtc.state.gov/regulations_laws/itar.html%5D the State Department’s job is to protect foreign nationals from regular U.S. commerce and protected Constitutional Rights.

    There are few problems we have, in the Federal Government, like we do with the State Department.

    F em. F em all.

    1. avatar California Richard says:

      ITAR also says that it is not applicable to information, products, or manufacturing techniques that are widely available to the public….. like the left always does: they cherry pick what they want to apply, ignore what limitation they don’t like, and weaponize it (regardless of original intent) against the American citizen.

      1. avatar Southern Cross says:

        Information is out there already. With my library which includes a photocopy of the USMC M16A2 armoror’s manual, which lists in great detail every component including dimensional specifications, there is more than enough information to produce reproduction firearms.

        I also have the M16A1 manual in PDF format.

        And 3d printed guns have been appearing in Australia for several years, so they are hardly a secret anymore.

  5. avatar MarkPA says:

    I read this provisional definition of “military” with some ambivalence. I suggest that we all take a skeptical look.

    The Miller decision reasoned that “arms” with some arguably useful connection to the militia ought to enjoy 2A protection. The Heller decision reasoned that “arms” “in common use” ought to enjoy 2A protection. Are these two reasonings mutually: EXclusive; or, INclusive?

    In an earnest struggle to discover any possible meanings from these two opinions, let’s try to think of a couple of arms that might clearly fit into one but not the other contemplation. A 20mm cannon would fit military but not common use. A 2-shot derringer would fit common use but not military. (I invite you to think of other examples that might be more troubling.)

    Could SCOTUS begin to reason its way away from the Miller rationale and toward the Heller rationale? E.g., all the “little lady” really “needs” is a Colt-equalizer for self-defense. The needs of the militia to be “well regulated” for the purpose of “securing a free state” is (somehow) no longer operative; Miller’s rationale has been superseded by Heller’s.

    We, as the PotG, are cordially invited to put our heads in this noose. We cry-out praise for the new definition: ‘There, we told you all along! The AR-15’s superficial similarity to the M-16 is irrelevant. The HUGE difference is the select-fire switch on the latter that marks the difference between military vs. civilian arms. All we are insisting is that the 2A guarantees our right to civilian arms in common use.’

    SCOTUS will find millions of remarks on gun blogs to the effect that the AR-15 is NOT military. And, so, will be encouraged to sanction a controlling distinction between military vs. non-military arms and conclude that the latter are “good enough” for We the People.

    SCOTUS will then cheerfully empower the Feds to draw – and re-draw from time to time – the line between military vs. non-military arms. Merely by way of illustration, the Feds might declare that any arm that chambers 5.56 NATO is military; there is no need for compatibility in ammunition between the arms used by civilians vs. those used by the military.

    I think we the PotG would be better off taking the position that the criteria for construing an “arm” to be under the protection of the 2A are mutually-INCLUSIVE. If a candidate weapon fits into any one of the qualifying criteria then it would be an “arm” enjoying 2A protection. Thus:
    – an AR-15 is suitable for the militia to assist the National Guard to suppress insurrections or foreign invasions;
    – a derringer or revolver is suitable for self-defense;
    – a pepper-spray, Taser or stun-gun is suitable for self-defense;
    – a futuristic “light saber” would be suitable for military or self-defense use;
    but, perhaps,
    – a ghetto mace made of a 2X4 with nails driven thru one end would not enjoy 2A protection as being neither suitable for military nor self-defense purposes.
    – a syringe filled with acid would not enjoy 2A protection as forbidden for military purposes and unacceptable for self-defense
    – a fire-extinguisher filled with poison gas would not enjoy 2A protection . . .

    The cannon of criteria for defining “arms” ought NOT EVER be closed. For example, a museum might one day feel compelled to argue that a poison gas weapon from WW-I has a legitimate claim to 2A protection as a curio or relic of historical significance.

    My suggestion is that here we might be looking at an opportunity to stake-out-some-ground that could serve to widen and keep open the criteria that SCOTUS ought to use in future cases to hold that some artifact deserves 2A protection as – for any legitimate reason – an instance of an “arm” guaranteed protection under the 2A.

    1. avatar Ralph says:

      @MarkPA, I think it’s okay. The State Dept said that the firearms in question were not inherently military, not that they were militarily useless or exclusively civilian in nature.

  6. avatar Rocketman says:

    What bothers me most is that according to the State Department AR-15’s are not considered military weapons. According to the Constitution military weapons are clearly A PROTECTED CLASS and therefore have the strongest safeguard legally. Is this an end run for a later democrat administrations to say that since they are not “weapons of war” that they are not as well protected legally?

    1. avatar Ralph says:

      “What bothers me most is that according to the State Department AR-15’s are not considered military weapons.”

      State didn’t say that. State only said that certain firearms aren’t inherently military, not that they are non-military or exclusively civilian.

      And Remington just got a military contract for off-the-shelf rifles — the same ones that we buy. So just because civilians use them doesn’t make them non-military.

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

        “And Remington just got a military contract for off-the-shelf rifles — the same ones that we buy.”

        A SOT can legally manufacture a select-fire weapon for law enforcement use, no?

        And they can manufacture them in quantity and keep a supply of them ‘on-the-shelf’ if an LE contract comes up?

        So isn’t ‘off-the-shelf’ with regards firearms a rather vague term?

    2. avatar California Richard says:

      You’re thinking in terms of “consistancy”, “rules”, and “integrity”. These virtues are simply a thin veneer when it comes to the left. Their main operating objective is “agenda”.

      Read some of Kurt Schlichter’s articles. He calls your thinking “the old rules of the game”. Their goal is advancement and they will lie, bend, ignore, scream, and stab-in-the-back in order to advance.

  7. avatar Geoff says:

    As I understood ITAR, it only restricted MILITARY WEAPON designs.
    What Military in the World would have any use for a one shot plastic gun?
    And the AR-15 files are not restricted, any company can build one, even foreign ones.
    No Military uses the semi-auto AR-15.
    What the Heck was the big problem.
    Oh. Wait. obama was President.

    1. avatar California Richard says:

      ITAR is nothing more than a tool the left used to advance their objective. Don’t think of in terms of what it was meant to do (protect our cutting edge defense systems), but think of it in terms of what it can be used for in order to control “wrong think”…. that’s how the left sees it.

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

      “As I understood ITAR, it only restricted MILITARY WEAPON designs.’

      And who has recently been shrieking the loudest about semi-automatic rifles being “Weapons of war!”?

  8. avatar Ralph says:

    “obama was President.”

    I think you misspelled “Soros.”

  9. avatar Nickel Plated says:

    “People of the Gun are not the only ones interested in knowing why the State Department settled with DD.”

    Gotta be honest, I don’t think I am all that interested.
    Really, who cares what the Department of Irrelevance says or why? The files are out there, if you want them, they’re not at all hard to find. What they say has no real weight at this point, they just don’t realize it yet.
    I can make a 3D printer file for a gun and upload it from some burner-phone from a public Wi-Fi hot spot. What are they gonna do about it?
    Dept. of State doesn’t seem to realize how the internet works. They should go consult Al Gore about it.

    This is pretty much the death knell of gun control. And the better that 3D printer technology becomes, the deader it will get.

  10. avatar Docduracoat says:

    For all of you doing mental gymnastics over the weapon of war definition, this agreement has no force in any court in the entire country.
    This is a State Department Regulation, not a law.
    No judge will take any notice of this in a court of law.

  11. avatar SF says:

    Thanks for posting this. I’ve read half a dozen other articles on the case in the last week and this is by far the most detailed and well researched and least fear-mongering.

  12. avatar Daniel says:

    *it’s tax money

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