8 States Sue Federal Government, Defense Distributed Over Gun-Making Computer Files
The states allege that the Feds decision to settle its lawsuit with Defense Distributed violates administrative procedure law and the states' 10th Amendment rights.
In a lawsuit filed today in federal court in the Western District of Washington in Seattle, the state of Washington along with seven other states and the District of Columbia insist that the federal government's decision to settle a multi-year lawsuit with Defense Distributed—a company launched by Cody Wilson, creator of the first usable 3D printed plastic gun, and dedicated to distributing gun-making software and hardware—and the Second Amendment Foundation violates both the Administrative Procedures Act and the states' 10th Amendment rights.
The federal settlement with Wilson's company and the Second Amendment Foundation resulted from a lawsuit filed by latter two groups in which they asserted that the federal government's refusal to permit the distribution of Defense Distributed's computer files under federal ITAR (International Traffic in Arms) regulations violated, among other rights, the plaintiffs' First and Second Amendment rights. The settlement does not grant that anyone's rights were violated, but it does allow the files to be legally distributed.
As summed up in a press release issued this morning in advance of the actual lawsuit filing being made public, Washington's Attorney General Bob Ferguson's office claims the settlement is
in violation of the Administrative Procedure Act….there is no indication in the settlement agreement or elsewhere that any analysis, study or determination was made by the government defendants in consultation with other agencies, before the federal government agreed to lift export controls on the downloadable guns. In fact, the agreement states that it "does not reflect any agreed-upon purpose other than the desire of the Parties to reach a full and final conclusion of the Action, and to resolve the Action without the time and expense of further litigation."
The lawsuit also argues the settlement violates the Tenth Amendment by infringing on states' rights to regulate firearms. Washington has a robust regulatory system meant to keep firearms out of the hands of dangerous individuals. That system is jeopardized by the Trump Administration's action and will be undermined by the distribution of Defense Distributed's downloadable guns.
[UPDATE: The full lawsuit is now also public.]
While I'm no lawyer, the 10th Amendment argument—more or less that the federal government making a decision about how it interprets and enforces its own munitions export law somehow illegitimately prevents state's from having the gun control laws of its choice—seems frivolous.
Randy Barnett, a law professor at Georgetown University, says in an email that "A state's claim that the federal government's refusal to ban a particular item somehow violates the 10th Amendment is as thin as the paper on which the Amendment is written. Conversely, neither does it violate the Supremacy Clause for a state to refuse to ban something banned by Congress. This name for this is 'dual federalism.'"
And, again, while lawyers and judges will have to hash this out in court, it seems that, as explained in a filing from last week in response to an attempt by various states to prevent the settlement from going into effect in the first place, the decision to license the gun-making files for legal distribution is outside any judicial review, and that—explicitly by law—any court
lacks jurisdiction to review State Department license decisions under the Arms Export Control Act ("AECA")…The AECA provides that "[t]he President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services." 22 U.S.C. §2778(a)(1)….
the AECA expressly bars the Court from reviewing such State Department designations of articles under the ITAR because 22 U.S.C. § 2778(h) expressly, clearly, and unequivocally precludes judicial review of such decisions:
"(h) Judicial review of designation of items as defense articles or services The designation by the President (or by an official to whom the President's functions under subsection (a) have been duly delegated), in regulations issued under this section, of items as defense articles or defense services for purposes of this section shall not be subject to judicial review."
Josh Blackman, one of Defense Distributed's lawyers, said in an email today that "The District Court in Washington already approved the settlement. This latest suit is another collateral attack on a rule-making process that began in the Obama Administration."
As reported yesterday, Defense Distributed is already embroiled in its own lawsuit against New Jersey and Los Angeles over those authorities' threats, and simultaneously is fighting Pennsylvania's request for a temporary restraining order against them. (Both those states are also part of today's federal lawsuit filed in the Western District of Washington.)
While the various court filings about this continue to suggest that August 1 is the date on which Defense Distributed will begin distributing the files—which, again, the settlement legally permits them to do—the distribution is already happening.
Cody Wilson of Defense Distributed is already fundraising off the suit via Twitter. He told me five years ago, when I was writing a feature story on the beginnings of his fight with the government over gun-making files, that "This has been a continuous process of different levels of authority figures trying to stop it from happening and thus allowing it to happen…Of course we are going to succeed—because you all are trying to stop me. That seemed natural and ended up being true." So far, that has continued to be true.