Cody Wilson and the Second Amendment Foundation sued the State Department in federal court in Texas last week over the Department's shutting down Wilson and his company Defense Distributed from putting CAD files to make 3D guns on the Internet, claiming that doing so might—might!—make him essentially an illegal international arms trafficker under International Traffic in Arms Regulations (ITAR).
Wilson saw that as basic prior restraint on speech, speech with a nexus on the right to keep and bear arms, and executed with a decided lack of due process, being made entirely on threat that he might be breaking the law, but stop what he's doing anyway. I discussed and quoted from the suit at length last week.
Today I obtained a further filing in the suit, a "Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction." Below, a summation of the interesting arguments in it.
It begins by pointing out that the ITAR regulations scope and vagueness leaves many citizens, in addition to apparently the State Department itself, in the dark as to whether a given action or product violates ITAR by being "exported" and the "commodity jurisdiction" requests that citizens must go through to find out if they are subject to it are not treated in any efficient or swift manner.
In Wilson's case, 10 different commodity jurisdiction requests have gone nearly two years without any reply from the government. However, a later such request regarding Defense Distributed's newer "Ghost Gunner" home CNC mill for metal lower receivers for AR-15s got back the reply that though the machine and manual and operating software per se are not ITAR-covered, "software, data files, project files, coding" etc that actually produce a "defense article" such as the lower receiver are subject to ITAR rules.
The memo notes that ITAR itself made a policy decision back in 1984 that should have eliminated any "prepublication approval requirement on public speech containing unclassified technical information" which Wilson's legal team considers his CAD files to be. The memorandum points out that all sorts of information related to munitions is now out on the Internet and clearly in an unregulatable public domain.
It's also worth remembering that when and if a decision arises as to whether items fall under ITAR restrictions and require licensing, no possible judicial oversight or reconsideration of that decision exists.
The lawyers argue and demonstrate the political and even artistic value of the 3D printing files for weapons and weapon parts that Wilson and Defense Distributed traffic in.
They maintain that a preliminary injunction is appropriate in this case for various reasons, including that there is every reason to believe they would win on the merits–most importantly because they believe the way the Department is trying to enforce ITAR against Wilson clearly exceeds congressional intent with the underlying laws that created the ITAR regime.
They sum up ITAR's current practice as proof "Defendents have aggrandized for themselves nothing less than a power to censor privately-generated, unclassified 'technical data' on the Internet" on grounds that the Internet is available worldwide, thus anything on it has been "exported" and that thus all "technical data" posted to the Internet "is subject to ITAR controls and procedures….Before addressing the constitutionality of this breathtaking regulatory regime, the Court should ask whether Congress granted Defendents such authority."
"There is no evidence," the memo says, "that Defendents…ever properly considered the implications of applying a prior restraint to all speech containing technical data that might be accessed or overheard by a foreigner" and that "Defense Distributed appears to be the scheme's only target, other websites containing similar computer files are apparently unimpeded."
The memo goes on to explain the obvious First Amendment problems with quashing Wilson's speech via threat of ITAR enforcement, and that the basic notion of ITAR controlling all public unclassified technical data on the Internet is unconstitutionally overbroad, with lots of previous case law cited and quoted to support its assertions.
The inherent and obvious vagueness of ITAR's rules—the agency itself can't seem to decide about what falls under it even given nearly two years—makes it "an unenumerated prior restraint" which is "the very definition of unbridled discretion" to quash speech. In addition, the inability to ever know if your speech is alleged arms exporting under ITAR renders the rules inherently void for vagueness.
The memo also takes on the Second Amendment arguments, insisting that "because there is a right to possess handguns, there is, necessarily, a right to acquire them. And the most basic means of acquiring something, is to make it. Surely, the Second Amendment secures the right to make the arms that might then be kept or carried."
Quoting from an earlier District Court win from Wilson lawyer Alan Gura, in Mance v. Holder, the memo says that "Operating a business that provides Second Amendment services is generally protected by the Second Amendment." Wilson's lawyers insist that the way the State Department's actions have impacted Wilson's Second Amendment rights, and those of the Second Amendment Foundation's members, would survive neither strict nor intermediate scrutiny, the latter because the regs clearly burden more conduct than is reasonably necessary for any compelling state interest.
All in all, a good set of arguments to enjoin the government from continuing to threaten Wilson for expressing himself.