Gun Control

Rep. Thomas Massie and 14 Colleagues File Amicus Brief in Case Regarding Barring Distribution of 3D Weapon Printing Files

Massie's brief argues State Department claiming powers to halt speech related to 3D weapon printing that the relevant law does not, and cannot, give.


Libertarian-leaning Republican Rep. Thomas Massie of Kentucky and 14 other congresspersons Thursday filed an amicus brief for the plaintiff in the case of Defense Distributed v. U.S. Department of State.

It's a case I've been reporting about from its beginning in May to a recent failure to enjoin the government from its speech-quashing actions while the case proceeds. An appeal of that refusal to enjoin the government is now at the Fifth Circuit Court of Appeals.

The case involves government use of the Arms Export Control Act (AECA) by the State Department under its ITAR (International Traffic in Arms Regulation) to order Defense Distributed (DD), the entity under which Cody Wilson and partners spread CAD files that instruct 3D printers to make a plastic pistol, to cease spreading those files or be prosecuted as an illegal exporter of, essentially, highly sensitive technical data related to munitions.

The amici in Thursday's filing start by noting that:

Members of Congress have a particular interest in seeing that federal statutes are properly interpreted and implemented. Moreover, Members of Congress are bound by oath to support and defend the Constitution…..

Representative Thomas Massie, of Kentucky—an MIT-trained engineer and inventor—is a Member of the Committee on Science, Space & Technology. His views are particularly relevant because the State Department's improper and unconstitutional interpretation of federal law is likely to chill scientific and technological advancement in the United States.

Massie and his colleagues go on to argue that, beyond the merits of Defense Distributed's challenge to how the State Department's actions are harming its First, Second, and Fifth Amendment rights (which the amici agree it does, and believe DD should win on those grounds), interpreting ITAR as allowing them to quash DD's speech involve a use of agency power not justified by the actual law:

[AECA] says nothing about the regulation of domestic public speech. Rather, the statute authorizes the President, "[i]n furtherance of world peace and the security and foreign policy of the United States . . . to control the import and export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services."…

This straightforward statutory language does not permit the State Department to ban the domestic publication of unclassified public speech through its current expansive interpretation of the word "export" and application of ITAR…..The word "export" in particular, which is the entire basis of the State Department's position, simply cannot be stretched to mean domestic publication with incidental receipt by foreign persons….

[The State Department's order to DD] captures purely domestic discussions between Americans in America simply because those discussions were undertaken by means of the internet rather than on paper, or orally, or by any other method. To interpret "export" to mean "publish on the internet to the general public" simply does not comport with the common meaning of the word.

The brief goes on to show that State Department positions in previous court cases and its own internal memoranda support that notion that AECA does not give them the power to order DD to not communicate in America to Americans, just because the communication went over the Internet.

The brief further argues that if the law gave them that power, then the law itself is unconstitutional absent some greater nexus with foreign commerce.

Massie and his colleagues end with the pragmatic point that:

Chilling the speech of actors like Defense Distributed by imposing export controls on them that were never meant to apply domestically will slow innovation in the United States and leave the field to other countries.

From Massie's press release about the brief, he notes his co-signing congressional colleagues:

include Duncan (R-SC), Gosar (R-AZ), Webster (R-FL), Labrador (R-ID), Conaway (R-TX), Rokita (R-IN), Farenthold (R-TX), Posey (R-FL), Miller (R-FL), Babin (R-TX), Jones (R-NC), King (R-IA), Fleming (R-LA), and Kelly (R-PA).

The plaintiff's lawyer is Alan Gura, who won both modern landmark Second Amendment cases before the Supreme Court, 2008's D.C. v. Heller and 2010's McDonald v. Chicago. This reporting from me sums up Gura and his team's arguments.

I interviewed Massie as part of a roundtable of liberty-minded congressfolk in March 2013.

UPDATE: Links to some other amici brief in the case filed this week, from the Reporters Committee for Freedom of the Press, Electronic Frontier Foundation, Madison Society Foundation, and Cato Institute.

NEXT: Movie Review—Star Wars: The Force Awakens

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  1. Fucking government hacks, I swear to God!

    1. Ed, technology isn’t intrinsically good or evil. It’s how it’s used. Like the Death Ray.

      1. What about the Death Star? Any possible good uses for that? Industrial mining of moons, maybe?

        1. Uh, defending the Empire? Or are you one of those pacifist types?

  2. “Congress shall make no law…”
    (tulpa hates that ellipsis, which makes me like it more)

    1. Are you a well-regulated militia, Sevo? If not then, that particular amendment doesn’t pertain to you. Also, the word “infringe” doesn’t mean what you or the idiots at Webster’s think it means. Duh.

  3. OT: Just returned from Episode VII. Four stars out of five.

    I feel like such a stereotype in saying this, but it was better than any of the prequels.

    1. The prequels …. each one was so bad, I assumed the next couldn’t be any worse, and each proved me wrong.

      If Lucas had tried to make any more in the franchise, I would not have seen them.

      1. The prequels …. each one was so bad, I assumed the next couldn’t be any worse, and each proved me wrong.

        Some people liked episode 3, or at least say they did. I assume that those who did and weren’t just being blindly loyal to George Lucas aren’t terribly interested in movies on the whole. Like, they liked the Original Trilogy as kids and these days go to one or two movies a year.

        I feel a little different than you. I thought each movie in the PT improved over the one before it, albeit slightly.

        If Lucas had tried to make any more in the franchise, I would not have seen them.

        Oh, I would have. Morbid curiosity would have brought me back.

        1. Maybe I exaggerated a bit. The third did seem slightly better as a whole, I suppose, but I remember almost nothing about those prequels. They vanished from my memory like a dream which evaporates upon waking, almost as you remember it, like core memory which destroys its bits as they are read out. So it’s not fair to say each was worse than the previous.

          I remember liking the first Matrix movie, but the next two were so bad that they erased whatever I remembered of the first one, like evaporating dreams or the three prequels.

          1. Pod racers are cool. That’s all I got.

    2. If your dad leaves you without having a baseball catch there is no reason to find him, or kill him, or make friends with him. Is there a premise to Star Wars?

      1. thread fail.

    3. Did you camp out?

      1. I didn’t have to. Turned up around 8:15 for a 9:00 show, got a decent seat.

  4. Han Solo kicks bucket. Chewbacca has a sex change and can’t figure out which galactic bathroom to use and Luke regains his original hand. Spoiler alert

  5. Sounds like we have a sleeper cell right there in Congress. Put them on the 3D No-Fly List, Mr. President.

    1. Put him on the No-Gun and No-Pseudoephedrine lists too.

  6. Massie kicks ass.

  7. Moreover, Members of Congress are bound by oath to support and defend the Constitution…

    I realize this was an amicus brief, but could this reason also be given to show that someone has standing to sue for a law to be found unconstitutional? If so, does this mean any federal employee (all of whom take similar oaths) would have standing to sue. I’m asking because sometimes it seems difficult to find anyone who has standing to sue against certain laws and they usually end up focusing on trying to find someone who was actually harmed by the law…

    1. Interesting question. “Standing” seems like a pretty wishy-washy concept. And there’s always that pesky jury-nullification thing. Does *that* involve “standing”?

  8. This can be an example where technology is being utilized in a negative manner. But we can’t fully place the fact that the technology as a whole is negative. There have to be the two sides of a coin. Here my response to it is that, strict laws and regulations should be drafted in order to prevent these politicians to use 3d printing kind of technology in a very transparent manner, otherwise the technology which was invented for having a better life would ultimately prove to be a life threatening one.

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