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 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.
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.
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.