Defense Distributed DEFCAD 3D gun files
Courtesy defcad.com
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From the Second Amendment Foundation . . .

The Second Amendment Foundation and Defense Distributed today are celebrating a court victory in a long-running battle to allow online publication of information related to the 3D printing of firearms, thanks to a ruling by the Fifth U.S. Circuit Court of Appeals that returns claims against the New Jersey attorney general (NJAG) to its jurisdiction.

A district court order had wrongly severed the case against the NJAG, from a lawsuit filed by the plaintiffs, and transferring it to a federal court in New Jersey. Today’s ruling in the Fifth Circuit directs the district court in Texas to “request retransfer from its counterpart in New Jersey.”

“It’s a huge victory for us,” said SAF founder and Executive Vice President Alan M. Gottlieb, “because New Jersey wanted to be severed from our legal action in their effort to prevent publication of the information by Defense Distributed, thus violating the company’s and SAF’s First Amendment rights to promote the exercise of Second Amendment rights.”

This effort began when anti-gun-rights attorneys general, led by Washington State Attorney General Bob Ferguson, filed suit in the Western District of Washington to enjoin the State Department from authorizing the release of Defense Distributed’s files on the internet under a settlement from a previous SAF and Defense Distributed lawsuit. That effort was an offshoot of attempts by then-New Jersey AG Gurbir Grewal and several of his peers to prevent the plaintiffs’ distribution of materials related to the 3D printing of firearms.

Writing for the majority, Circuit Judge Edith H. Jones stated, “Correctly assessed, the NJAG did not carry its burden to clearly demonstrate that transfer is clearly more appropriate than the Plaintiffs’ choice of forum. The district court erred legally and factually in virtually every aspect of this issue, and its decision, which has unnecessarily lengthened this litigation even more, represents a clear abuse of discretion for which mandamus is an appropriate remedy.”

An earlier ruling by a Fifth Circuit panel held that the NJAG is “subject to the jurisdiction of Texas courts” in this case because Defense Distributed is a Texas-based company. Today, the Fifth Circuit ruling directs the district court to:

  • Vacate its order dated April 19, 2021 that severed Defense Distributed’s claims against the NJAG and transferred them to the United States District Court for the District of New Jersey;
  • Request the District of New Jersey to return the transferred case to the Western District of Texas, Austin Division; and,
  • After return, to reconsolidate Defense Distributed’s case against the NJAG back into the case still pending against the State Department.

“This case has dragged on for years,” Gottlieb noted. “What today’s ruling clearly demonstrates is that attorneys general who violate our First and Second amendment rights will be held to answer by the courts, wherever the violations occur.

“NJAG wanted their case severed and transferred,” he added, “and now that will not happen. It’s unfortunate that justice has been delayed so long. It’s time to move forward. This is a case we fully expect to totally win.”

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50 COMMENTS

  1. It’s really getting scary out there. The Courts are actually upholding the 2nd Amendment as a matter of law. Who’da Thunk it.

    • Depends upon your definition of “Court”. We Californians still have the Nutty Ninth messing things up for us.

      • We’re even winning out here in the ninth…until we get to the dreaded “full court pseudo appeal” that always happens after we win the 3-judge panel.

        Gun rights have to win in the 9th circuit twice, every time.

      • The Ninth has the most judgements overturned, too. If you look at it’s makeup, you see mostly octogenarians, who should have retired due to infirmity, years ago.

    • When the violations become so egregious a 19 year old college sophomore can see the Constitutional abuse respectable courts are left with no other choice.

  2. And now we need to get some cases going to sue the hell out of any state or local that want’s to try and ban home gun production.

    • Rather sue “states”, which will only punish the taxpayers, many of whom likely are opposed to their money being used against their own rights, perhaps a better option would be to file Denial of Civil Rights charges against those in government who are attempting to do just that. Force them to use their own money in defense of their tyrannical actions, rather than use someone else’s to increase their power and hold upon those they were elected or appointed to represent.

      • “…perhaps a better option would be to file Denial of Civil Rights charges…”

        IIRC, one cannot sue government employees acting within their authority. Unlike in the beginning, simple legislation establishes authority for government activities. Legislation is de facto legally and authoritatively derived from some sentence in the Constitution. Once legislation is turned over to the executive branch, executive agencies (employees) are within their delegated authority to create enabling regulations. So long as government employees do not act outside those enabling regulations, they are individually immune from law suits. A government agency can be sued, and damages recovered from the agency, but only as an agency, not individual employees.

        LKB??

    • She was the runner up for the slot that went to David Souter in 1990. History could have been radically different had Bush the Elder chosen her . . . think of all the 5-4 decisions where Souter went over to the Dark Side.

      (Disclosure: I was one of her law clerks (1986-87).)

  3. NJAG should pay all defense & attorney costs incurred by defendant.
    And treble damages for fraudulent jurisdiction claims.

    • “NJAG should pay all defense & attorney costs incurred by defendant.”

      NJAG didn’t get it wrong, it was a district court that got it wrong. One cannot ever recover damages from a court. When a court (whatever level) “gets it wrong”, the only result is a notation in the win/loss spreadsheet.

  4. Gun Control zealots puff out their self assured chests and want to appear like they are the ones riding white horses when all along they are concealing an agenda rooted in racism and genocide inside a Trojan Horse. Thanks and Congrats to Allen Gottlieb.

  5. Meh. Whatever. I easily obtained my CHL and proudly carry whenever I’m out of the house. Nothing to it. New Jersey gets a bad rap, but on balance it’s so much better than MAGA sh*t holes like Florida, for example!

    • Try carrying hollow point handgun ammo on NJ.
      And unlike that shithole state NJ, you don’t need to get special permission to buy anything in Florida, or PA or lots of other states.
      Back in the 90’s the NJ state gastapo were arresting NYC police officers who would drive over the Gw bridge to take rt9 north back into NY to go home, why ?
      Because they were carrying there department issue firearms.
      That’s how arrogant NJ law enforcement is.

    • nameless, brainless, d***less troll, all you carry is your d*** in your hand. You are a useless, brainless drive-by troll, who contributes nothing. Please go micturate up the cable, then go pound salt in your @$$.

      Or, if that insults you (and I hope it does), please feel free to hie thyself off to the theological place of eternal punishment – you will NOT be missed. BYE!!!

      • Lol I’m surprised the pretend partners at your imaginary law firm allow you to take time away from your fake caseload in order to post on TTAG 🖕🤡.

        • Things are falling apart. When the dam does break, and it will soon, you’ll find yourself doing the hemp fandango from a lamp post. A bullet is too good for you.

      • Not sure whether you are the same nameless, brainless, d***less troll, or are just playing “me, too!”. Doesn’t really matter, you BOTH sound equally stupid, brainless, and d***less. Does your mommy know you’re using her computer??

        Go micturate up the cable, troll, then go pound salt in your @$$. If it’s the same @$$, I guess that’ll be a lot of salt . . . don’t hurt yourself. Eff off and expire, troll.

    • Well, someone has to be one of the 1200 or so that New Jersey has roaming around the state. So…former judge, sheriff, cop, or just Payoff?

  6. I have made 100 DLR every hour in one day. That was my ideal day in my life and my boss b was very content with me.. CNN is additionally intrigued from my work and is very happy..

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  7. “directs the district court in Texas to request . . .” is a victory?!

    The judge was so frustrated that another court “unnecessarily lengthened this litigation even more” that she – – lengthened it yet further by passing the buck to yet another venue instead of just ruling against NJAG herself?

    • She didn’t think she had jurisdiction, and would have been overturned if she’d done that. Doesn’t appear to me that NJ has EITHER in personam OR subject matter jurisdiction, equally, the judge has no direct jurisdiction over the NJAG or courts. It was a Leftist/fascist power play by the NJAG and the NJ courts to try to impose their version of gun control on another state, on the theory that, even though no one involved in the matter was in their state, the fact that NJ residents could “access” these files on the Internet made it their business. Glad they knocked that down. Even though it’s the “right” result, I agree it’s far from satisfactory . . . welcome to the “justice” system.

      • Well said. It makes me grateful I chose to spend my life in an organization where a leader, if someone appealed to him because of abuse by a lower-level leader, had other remedies available than sending the victim back to the abuser (or at “best” another junior leader) hoping for a better outcome.

    • “Anyone please correct me if I’m wrong but to me this looks like a .01% victory. And explain.”

      The percentage, not even the time span of the “victory”, is important. A judicial decision was put aside, did not become definitive law. That means a ruling that might be cited as justification for spawning an array of similar law cannot be cited. However….fighting laws never ends; only a specific form of law can be ended. New variants will arise, and need to be fought. Politics, not courts, determine whether a law (and all variations) is truly defeated.

      Note: even all the “constitutional carry” laws are only legislation by the majority of politicians; completely reversible without going to court.

  8. “…instead of just ruling against NJAG herself?”

    First, you are confusing justice with law.

    Second, it was not NJAG who created the process error; the district court was at fault. This is how the process works; process is punishment.

    Third, appeals courts do not rule on the facts; only the process/procedures. “They got the wrong person!” is not grounds for appeal. How, “they” got the wrong person is appealable.

    LKB???

    • Rather than argue with your thoughtful and courteous reply, I will simply note that my also (AFAICT) civil comment was held in moderation for-frickin’-ever, while fucking telemarketer Eva got right through and is still here.

    • Sam:

      While the spirit of your comment is in the ballpark, your analysis is more than bit oversimplified.

      If there was no competent evidence admitted that “x did it,” then an appellate court *can* reverse a finding that “x did it,” assuming the appealing party preserved error on the point.

      If the judge mischarged the jury on the law as to how they could find “x did it,” then an appellate court can reverse, assuming the appealing party preserved error on the point.

      If the judge incorrectly admitted inadmissible and prejudicial evidence as to whether “x did it,” then an appellate court can reverse, assuming the appealing party preserved error on the point.

      Etc., etc., etc. But you are generally correct that where there has been a finding of fact that is supported by some admissible, competent evidence, it’s all but impossible for the appellate court to reverse that finding (assuming they are following the law).

      But recall too the very unusual procedural posture of this case, and the analysis gets even more complicated. This case is like a complex hypothetical posed by a sadistic law professor: resolving the issues is like trying to stack three billiard balls atop one another. But I think EHJ got it right.

      • “But I think EHJ got it right.”

        Not quite understanding.

        Rather than reversing the district court, the appeals court should have made a ruling on the NJAG filing for severing from the lawsuit? Had been under the impression that the appeals court could only rule on the next lower court decision, requiring the next lower court to review their decision IAW instructions from the appeals court.

        • EHJ = Edith Hollan Jones. (It’s shorthand for how we referred to her in chambers memos. Old habit of mine.)

          I’m saying the Fifth Circuit decision to unwind the mess that the district court created and send the case back to him with pretty clear instructions was correct. (Procedurally, this case is a train wreck.)

          This case is devolving into a battle of wills between the district judge (who has never been receptive to DD’s positions) and the Fifth Circuit (which has been). A lot of what I get from EHJ’s opinion is a not-so-subtle warning to that judge: “we are watching, we are not amused, and we will keep reversing you if you keep it up.”

  9. “…my also (AFAICT) civil comment was held in moderation for-frickin’-ever, while fucking telemarketer Eva got right through and is still here.”

    Understand. Got my first “moderation” comment last week; 8yrs without a block, and then it happened.

    Feel free to initiate a conversation regarding my comment.

    • LKB made my point already: while I understand that appeals consider process rather than justice, “If [as in your example] there was no competent evidence admitted that “x did it,” “then an appellate court *can* reverse a finding that ‘x did it,'”.

      There seems to be more to the case than what I read here, but it sounds like the judge is saying “You (lower court) didn’t present any evidence to convict this guy, and I’m going to reprimand you for dragging an innocent man through the wringer, but then I will drag it out further myself by sending him to another state for a new trial next year rather than releasing him.”

      • “…but then I will drag it out further myself by sending him to another state for a new trial next year rather than releasing him.”

        Understand.

        Wouldn’t the delay drag out if the appeals court had remanded to the original trial court?

        • Yes it would, but my understanding of the law (and what LKB wrote – “an appellate court can reverse”) is that they don’t need to. If they find you were unjustly convicted, they would exonerate you, or enjoin NJAG’s actions in this case.

        • To Umm: Sam is largely right (although his position overstates things).

          On this particular record and the very unusual procedural posture of this case, the court of appeals cannot simply cut to the chase and decide the ultimate issue. It has to first unscramble the procedural omelette that the district court has made, and then send it back to him with instructions for the case to proceed.

  10. Not sure LKB meant to include utter dismissal as a remedy available to the appeals court. If jurisdiction (Texas, as opposed to NJ) is the issue, it seems a new trial is actually the correct remedy. The case is indeed complex; complex, but very entertaining.

    • There hasn’t been a trial in the DD, not has anything been dismissed.

      This particular appeal is focused on the district court’s strange decision to cut the NJAG out of the case and transfer DD’s suit against him to NJ. The underlying suit against other parties has always still been there and hasn’t been tried.

      This particular appeal presents all sorts of very sticky jurisdictional and procedural issues, but those have been addressed in the opinion.

      • “This particular appeal is focused on the district court’s strange decision to cut the NJAG out of the case and transfer DD’s suit against him to NJ.”

        Good. Even mo’ better understanding (and education) for me. Thanx.

        Is there settled procedure determining whether a case is tried in the jurisdiction of the plaintiff, or the respondent?

  11. DEFCAD is bullshit – they’re charging money to use other people’s designs.

    Those people are giving those designs away FOR FREE at other places.

  12. @LKB
    “EHJ = Edith Hollan Jones. (It’s shorthand for how we referred to her in chambers memos. Old habit of mine.)”

    Ah. Got it. Makes the comment clear. Thanx.

  13. @LKB
    “Unless a case is transferred (fairly rare), it’s tried where the plaintiff filed it.”

    Thanx.

    Could I then “jurisdiction” shop? Living in New York, filing in Mississippi?

    • Venue has to be proper as to the **defendant.**

      If you have a corporate defendant who does business all over the place and is thus subject to jurisdiction and venue in lots of places, you absolutely can forum shop. (That’s why some crazy high percentage of patent infringement cases are being filed in the Waco Division of the Western District of Texas — Judge Albright has hung out the “patent cases welcome” sign, much as Judge Ward did years ago in the Marshall Division of the Eastern District of Texas.)

      And even if venue is proper as to the defendant, the court always has discretion to transfer the case to a different district where the case could have been brought if it would clearly be more convenient for the parties / witnesses. Typically, that rarely occurs (plaintiff’s choice of forum is given considerable weight), but when you have a judge pretty clearly creating a “haven” for particular cases (or, as in this case, just wanting to get rid of part of a case for incorrect reasons), you are increasingly seeing appellate courts willing to reach out and order cases be transferred.

  14. It is critical to ensure that, once received, if the draft does not meet all of the student’s requirements, he or she can request a new version. A person pays for a flawless essay, but if the document is delivered with flaws or is unacceptable, the payment must be refunded.

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