Second Amendment

The Government Will Allow Cody Wilson's Defense Distributed to Distribute Gun-Making Software

Second Amendment superlawyer Alan Gura doesn't think the settlement means the Trump administration are across-the-board gun rights defenders.

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The Justice Department has reached a settlement with the Second Amendment Foundation and Defense Distributed, a collective that organizes, promotes, and distributes technologies to help home gun-makers. Under the agreement, which resolved a suit filed by the two groups in 2015, Americans may "access, discuss, use, reproduce or otherwise benefit from the technical data" that the government had previously ordered Defense Distributed to cease distributing.

Mark McDaniel/Reason

Before this, the feds had insisted that Defense Distributed's gun-making files violate the munitions export rules embedded in the International Traffic in Arms Regulations (ITAR). Defense Distributed's suit claimed that this was was "censorship of Plaintiffs' speech," since the files in question consist of computer code and thus counted as expression. It also argued that "the ad hoc, informal and arbitrary manner in which that scheme is applied, violate the First, Second, and Fifth Amendments." (The Second because the information in the computer files implicates weapons possession rights.)

In what is a very unusual move in ITAR actions, the government will pay more than $39,000 of the plaintiffs' legal and administrative fees. Cody Wilson, chieftain of Defense Distributed, tells Wired that this is only about 10 percent of what they've spent.

That Wired story is mostly devoted to scaring the reader about what a world in which people are freer to use computer files to make weapons at home might mean. Wilson is open that as far as he's concerned, he's killed the cause of gun control by popularizing the home construction of weapons via computer instructions.

Wired also speculates that the settlement is some sign of a Trump administration bending over backwards to satisfy a Second Amendment constituency. Alan Gura, one of the lawyers on the plaintiffs' side—and the attorney who won both 2008's Heller case and 2010's McDonald, two major Supreme Court victories for gun rights—disagrees, noting the administration's record in other ongoing Second Amendment cases.

"This administration maintained the Obama DOJ's cert petition in Binderup (denied 7-2), and has consistently opposed all other as-applied Second Amendment challenges, including Kanter (they won, Kanter appealed), Hatfield (they lost and just appealed), Medina (they won and Medina, repped by me on appeal, appealed, argument 9/11), and Reyes (being litigated now…)," Gura says in an email today. "They have also continued defending the appeal in Mance [regarding gun purchases across state lines]—they had over a year to change their mind, see the light, and admit that the district court was right, but they stuck to their appeal which unfortunately they won, and are defending against the currently-pending en banc petition. There are other cases they defend, some of course less meritorious, but any notion that Trump is pro-gun and having DOJ roll over would be fantasy."

The more likely factor behind the settlement, Gura believes, is that the government "realized that not a single 5th Circuit judge offered that they were likely to succeed on the merits. To the contrary, the centerpiece of their victory was that they could somehow avoid the merits. When they could avoid the merits no longer, suddenly the national security threat faded away."

In a press release, the Second Amendment Foundation notes its favorite aspect of the settlement:

Significantly, 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.

"Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby," noted SAF founder and Executive Vice President Alan M. Gottlieb. "For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called 'weapons of war,' and with this settlement, the government has acknowledged they are nothing of the sort.

"Under this settlement," he continued, "the government will draft and pursue regulatory amendments that eliminate ITAR control over the technical information at the center of this case. They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech. That will allow Defense Distributed and SAF to publish information about 3-D technology."

Since this is a settlement and not a victory on the merits in court, the government is still officially insisting their actions did not violate any rights. But an optimistic Gura thinks the "courts might remember this episode the next time the government offers up a spurious national security claim."

The government says the removal of these legal restrictions will be announced by July 27 on the Director of Defense Trade Controls' website. In return for that action the plaintiffs agree to drop the lawsuit.

A ReasonTV interview with Wilson from February: