By Tanya K Metaksa
Second Amendment Foundation (SAF) recently announced a new lawsuit, DD/SAF v. Department of State, et.al., (DD/SAF) against the U.S. Department of State and the state of New Jersey.
DD/SAF is a case that concerns not only the Second Amendment, but in essence the First Amendment, the American right of free speech. The introduction sums it up perfectly:
At stake now is the modern right to speak about the Second Amendment by sharing computer files with digital firearms information. Even though federal free speech laws protect this freedom with full force, both the United States Department of State and the New Jersey Attorney General are breaking the law multiple times over with unprecedented acts of censorship.
The story began at least seven years ago when a Texan named Cody Wilson manufactured a 3-D printed handgun and took it to a gun range where he successfully fired it using .380 caliber cartridges. Not being a bashful fellow he drove back to Austin and uploaded the instructions for manufacturing this gun to his website, defaced.com. Information concerning this activity spread like wildfire and according to www.wired.com those documents were downloaded more than 100,000 times in the days following. In addition to gun enthusiasts this activity got the attention of the US Department of State that sent Cody a letter.
The letter stated, “Until the Department provides Defense Distributed with the final CJ determinations, Defense Distributed should treat the above technical data as ITAR-controlled. This means that all such data should be removed from public access immediately.” ITAR is the International Traffic in Arms Regulation that defines the U.S. Munitions List (USML) which is a State Department list.
But as many people have learned the hard way—the internet is forever. Wilson removed the offending material from his website, but its printable instruction for manufacturing guns had already spread to websites across the globe including Pirate Bay and other underground web sites. In the intervening years those blueprints have evolved and multiplied on websites across the internet. And the only persons unable to share these files are Defense Distributed and SAF.
As a result of the State Department’s letter on May 6, 2015 Defense Distributed and Second Amendment Foundation, Inc. v.U.S. Department of State, et al was filed in the US District Court for the Western District of Texas. The principle argument of the case was that the State Department’s ban on publishing the blueprints constituted prior restraint of a First Amendment right. In September 2016 the Fifth Circuit Court of Appeals ruled 2-1 against Defense Distributed. Petitions for en banc rehearing were denied and SCOTUS refused to take the case.
Yet, that was not the end of the controversy. The District court ordered the parties to engage in settlement negotiations which they did and an agreement was reached in mid-2018. When the Trump administration in May 2018 transferred the power to approve international sales of small arms exports from the Department of State to the Department of Commerce, it gave State Department a way to settle the lawsuit. All parties to the lawsuit signed the “Settlement Agreement” on June 27, 2018. The State Department immediately began to fulfill some of the Settlement agreement’s obligations. On July 30, 2018 the district court entered an order providing that “the case is “DISMISSED WITH PREJUDICE”and the “action is CLOSED.”
The Court might have thought the case was closed, but New Jersey Attorney General Grewal and a group of Attorney Generals from eight other Democrat controlled states initiated a civil action on July 30 against the U.S. State Department, and both plaintiffs in the lawsuit. The case was State of Washington et al., v. United States Department of State, et al, No. 2:18-cv-1115-RSL. The very next day, July 31, the States obtained a temporary restraining order against the State Department thereby stopping the implementation of the “Settlement Agreement.” One month later the States got a preliminary injunction against the State Department.
After the preliminary injunction the U.S. State Department folded and never contested the lawsuit. All remaining decisions occurred on summary judgment. Although the State Department could have appealed the final judgement, it refused to do so. Defense Distributed and SAF appealed the final judgement, but the States moved to dismiss the appeal as moot and the Ninth Circuit Court dismissed the appeal.
In addition to refusing to fight the lawsuit filed by the States and then refusing to appeal the final judgement, the State Department disavowed the “Settlement Agreement” of June 27, 2018. After waiting for more than two years, Defense Distributed and SAF have now initiated a new lawsuit requiring the State Department to fulfill the terms of the July 2018 “Settlement Agreement”, stopping Attorney General Grewal’s actions against both plaintiffs and asking for monetary damages from the defendants.
The lawsuit by the nine State Attorney Generals, the action by the State Department following the initiation of that lawsuit and the unrelenting threatening and harassment by New Jersey Attorney General Grewal has effectively prohibited Defense Distributed and the Second Amendment Foundation from exercising their First Amendment rights to publish and disseminate information regarding 3-D printing of firearms. Hatred of the Second Amendment rights has effectively banned the exercise of First Amendment rights.
