3D Printing

Federal Government Can't Just Allow 3D Gunmaking Software To Proliferate Without a License, Federal Judge Declares

Various states sued to stop the feds from allowing such gun-making files to circulate legally. Now, a federal judge says the decision to not prohibit them was "arbitrary and capricious."

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The federal government in 2013 told Defense Distributed—a company whose business involves the distribution of tools and software for the 3D-printing or otherwise home-milling of weapons—that certain software files it distributed constituted the illegal export of armaments under International Traffic in Arms Regulations (ITAR) and the Arms Control Export Act (AECA).

Seeing the files as analogous to a book containing instructions on how to make a gun, Defense Distributed, along with other parties, sued the State Department in 2015 on First Amendment grounds. The federal government settled that lawsuit in July 2018. As part of the settlement, the feds announced certain such software files, known generically as CAD files (for computer-aided design), would be removed from the United States Munitions List (USML). Items on that list require a license to export.

Within days of that announcement, various states and the District of Columbia sued the federal government for taking the files off the list, claiming that the removal was done "in violation of the Administrative Procedure Act [APA]." The plaintiffs claimed that "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." The plaintiffs also said the decision "violates the Tenth Amendment by infringing on states' rights to regulate firearms."

This week, Judge Robert A. Lasnik of U.S. District Court for the Western District of Washington, in deciding on motions for summary judgment in that suit, State of Washington et al. v. U.S. Department of State et al., agreed that removing those files from the USML was unlawful based on the APA arguments (though not the 10th Amendment ones), and reversed the federal government's choice to allow free distribution of the files.

As discussed in Lasnik's decision, the federal government's initial reaction to the states' suit "justified the deregulation of the CAD files [that could help make weapons]…by pointing to a Department of Defense determination that the items 'do not provide the United States with a critical military or intelligence advantage' and 'are already commonly available and not inherently for military end-use.'"

However, the government has been temporarily enjoined from following through on their "temporary modification of the USML" as the suit progressed. In practical terms, this has been meaningless to any actual interest of the states suing, unless that interest was just to bedevil Defense Distributed, as the files—like most things on the internet—can be and are widely distributed by anyone else who pleased besides Defense Distributed. They're just files, after all, and nothing on the internet is easier to share.

Defense Distributed argued that the State Department's decision should lawfully be at the government's discretion with no judicial overview. Lasnik admits that "The AECA expressly commits one type of decision to agency discretion, namely the decision to designate an item as a defense article or defense service."

But the rub, as Lasnik sees it, is that the regulatory decision the plaintiffs were challenging was not about designating files, but rather removing them from USML. Lasnik thinks the suing states have legitimate cause to challenge the government's "failure to comply with statutory procedures and/or to consider certain congressionally-specified factors when making removal decisions under AECA. Congress did not expressly make such removal decisions unreviewable."

The federal government, for its part, argued that the suing states were not legitimately injured parties who should have legal standing to sue, though Lasnik concluded that "the States' interests in curbing violence, assassinations, terrorist threats, aviation and other security breaches, and violations of gun control laws within their borders are at least marginally related to the interests protected or regulated by the AECA."

Lasnik concluded that the removal of the CAD files from USML was done illegitimately without legally required 30-day notice to Congress, and that, despite arguments to the contrary from Defense Distributed,

this procedural failure cannot be rectified by providing Congressional notice thirty days in advance of making the 'temporary' removal 'final:' the temporary modification implemented the removal immediately, without waiting for the proposed rule to become final and without giving Congress notice and an opportunity to exercise its oversight role. Because the removal to which the States object occurred as of July 27, 2018, a subsequent notice is obviously not timely under the statute.

Thus, the removal "must be held unlawful and set aside under §706 of the APA."

Lasnik also finds the removal decision to be illegally "arbitrary and capricious" because "Congress directed the agency to consider how the proliferation of weaponry and related technical data would impact world peace, national security, and foreign policy," and that the State Department seemed to evaluate "export controls on small caliber
firearms only through the prism of whether restricting foreign access would provide the United States with a military or intelligence advantage," which is too narrow.

Judge Lasnik thus believes "the delisting was not 'based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute,' [thus] it must be invalidated under the APA." Lasnik believes the State Department should be required to give more detailed reasoning for why they changed their mind on the USML listing of those files, since the government "failed to identify substantial evidence in the administrative record explaining a change of position that necessarily contradicts its prior determinations and findings regarding the threats posed by the subject CAD files and the need to regulate the same under the AECA."

Nothing in Lasnik's decision gives any consideration to the notion that the very lawsuit against the government, which the government was settling when they made that decision, argued that having those files on the USML violated the First Amendment rights of Defense Distributed. Because it was a settlement and not a decision on the merits, the government is not on record as saying it agreed its previous actions violated the First Amendment.

The Lasnik decision ignored free speech in his close-focus on APA consideration, though the judge did point out that the federal government "has not relied on the First Amendment as justification for its action, and neither the Court nor the private defendants may supply a basis for the decision that the agency itself did not rely upon."

Chad Flores, lead counsel for Defense Distributed, said in an email today in reaction to Lasnik's decision that "The First Amendment protects the freedom of speech from all abridgment, including this lawsuit's indirect censorship methods. The APA is important, but no statute can require the federal government to violate the First Amendment."

In Flores' eyes, "with today's unprecedented ruling, a few rogue state officials have commandeered the State Department to do their unconstitutional bidding nationwide.  Defense Distributed will be appealing and fully expects a swift reversal."

NEXT: Is Trump's EPA Seeking To Gut Good Science?

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67 responses to “Federal Government Can't Just Allow 3D Gunmaking Software To Proliferate Without a License, Federal Judge Declares

  1. How about we just stop listening to courts? Korematsu vs the US is still not overturned, after all.

    1. Korematsu v. United States is like a small town, a town where no one likes you! Ain’t that right meteor!

    2. The judge lost a bit of credibility with me when he a) showed he doesn’t know how to count, and b) said that the First Amendment rights of DD are not relevant to the case.

      Also, there’s the entire bit where he accepts the claims that these guns are “undetectable” and that blueprints/designs are the same as possessing, manufacturing, or using a gun – obvious nonsense to anyone with half a brain.

      1. He lost even more credibility when he didn’t examine the process of something getting ON the list, but now frets about something being taken OFF the list

        This follows the DACA paradigm. Obozo himself said repeatedly that he didn’t have the Constitutional power to enact DACA. Then he did it through executive fiat. Trump came along and tried to undo the anti-Constitutional mess and wound up in the Supreme Court over the issue.

        In short, there’s no barrier to government doing something stupid. The resistance is to correcting the stupidity.

  2. The people’s right to keep and bear arms shall not be infringed crapped upon, folded, spindled and mutilated.

    No, still doesn’t work.

    1. It’s like the First and Second Amendments don’t even exist in some federal courtrooms.

    2. I think the Second Amendment should be amended to include the sentence, “Any legislator who questions the validity of the Second Amendment or votes to limit its scope in a legislative forum, may be shot by anyone without repercussion.”

  3. So the Judge decided that the Government can decide whether or not knowledge or information created by one person can be voluntarily shared with other persons.

    That sounds very much like prohibiting speech

    1. It is, and they’re going out of their way to make it about everything else.

    2. It is about prohibiting speech. But they wish it wasn’t so it can’t be corrected due to an administrative technicality. Because procedures matter more than rights. FYTW.

    3. It’s quite a bit worse than that: He’s decided that the government has to do it, even if the government thinks it shouldn’t.

  4. Judge Lasnik deserves to rot in Hell along with the traitors, thieves, murderers and other assorted slime that infect government at all levels.

    1. It’s his fault that the plaintiff didn’t cite the First Amendment?

      1. The plaintiffs are the ones who want speech restricted here, why would they cite the first amendment?

        Timeline:
        Under Obama admin, feds crack down on Defense Distributed for making the files available on-line in violation of weapons export laws

        Defense Distributed sues
        Trump wins 2016 Election
        Defense Distributed wins a couple of important intermediary appeals.
        DOJ under Trump Admin settles case with Defense Distributed in Defense Distributed’s favor.
        Several state governments sue to prevent implementation of the settlement with Defense Distributed. This is the suit we are talking about.

      2. It’s his fault that the plaintiff didn’t cite the First Amendment?

        Who do you think the plaintiff was in this case? Or do you just not know what the word “plaintiff” means?

    2. It’s like this guy thinks the fine art of gunsmithing should only be known to a select few. By that logic the spear should have been patent protected, so that not just anybody could figure out how to mount a bit of pointy rock to a stick.

  5. Now, a federal judge says the decision to not prohibit them was “arbitrary and capricious.”

    It would be nice to think that the silver lining here is that this judge is pushing back on the concept of Chevron Deference that gives agencies a free hand in interpreting their own rules and the scope of those rules, but I suspect it’s only uh, whatever the silver equivalent of fool’s gold is. Arsenopyrite?

    1. How could the government refusing to make new rules be prohibited, unless there is (constitutional) legislation that specifically outlaws the thing in question?

      1. They’ve got a mandate to “figure out if a policy, or lack thereof is hurtful to the world at large”. Funny how mission creep works.

      2. I had to read the headline 3x to get my head around the concept that *failure* to prohibit something could be “arbitrary and capricious”. What happened to a “islands of authority in a sea of liberty”? The presumption is that things are NOT prohibited, not the other way ’round.

        1. Ah, but in the modern America, anything that has ever been prohibited, even if it violated someone’s rights, must remain prohibited forever until SCOTUS hears your cries for mercy and grants you cert.

          1. Head

            about

            to

            E X P L O D E

            Ah, that feels better.

      3. This isn’t the government refusing to make a new rule.

        This is the federal government removing a pre-existing rule because it was challenged in court and it looked like the challenger would win, so the settled the original case.

        Then another party(state governments) filled a second lawsuit challenged the removal of the rule pursuant to the settlement of the first case.

        Standing for the state governments in this second case is a bit wonky, as the law underlying the rule being removed is an export control law.

    2. One man’s arbitrary and capricious is another’s consistent and cautious.
      “Judges” are given WAY too much power.

  6. I’m working on a 3-D printed woodchipper.

  7. what’re they gonna do when someone can whip up a new Court?

    >>in violation of the Administrative Procedure Act [APA].

    terrifying.

  8. Is this the same federal judge that declared a cavity search and total dismantling of a car without a warrant OK, but a cell phone search totes off limits?

    1. Must be an oversight that this article failed to mention Clinton nominated this numb-nuts judge because everyone knows that #appointmentsmatter and thus appointers must be more carefully considered and scrutinized to minimize the chance of a reciprocating screwtinaztion of We the People.

  9. Lasnik sounds like the psycho chick from Fatal Attraction.

  10. Seeing the files as analogous to a book containing instructions on how to make a gun, Defense Distributed, along with other parties, sued the State Department in 2015 on First Amendment grounds.

    Serious question: Does this have implications for cases involving DNA?

    1. I could see a case for treating smallpox’s genome as a munition under the export law. Without the 2nd amendment hook, because biowarfare agents aren’t “arms”, but still having the 1st amendment hook, because all you’re doing is describing the genome.

  11. This is a weird new thing in the Trump hero. We have judges deciding that the federal government can make decisions in arbitrary and capricious ways, but cannot unmake those decisions.

    Really does Boggle the mind.

    1. Well, at least the government is consistent, in that the *judges’* decisions are arbitrary and capricious.

    2. No, same thing in the Reagan administration regarding passive restraints in cars.

  12. “export controls on small caliber
    firearms only through the prism of whether restricting foreign access would provide the United States with a military or intelligence advantage,” which is too narrow.

    Wait, so now the weapons we civilians own are possibly able to repel the threat of the US Military if turned on its own citizenry?

    Beta O’Rourke hardest hit.

  13. All you need is a legal AR-15 and a micrometer and other precision measuring equipment, and you have the data needed to make any AR-15 parts. Then, with a CAD/CAM machine, Bob’s your uncle.

    Or, there are folks who’ll make MAC10s.

    https://reason.com/2019/11/11/biker-gang-leaders-diy-guns-are-part-of-a-predictable-prohibition-story/

    1. Philip Luty, a UK subject, built a sub-machine gun from common hardware components, as a political protest of UK gun laws, and was convicted and imprisoned for his efforts. After getting out, he wrote a book on how to do it, and was charged under UK anti-terrorism laws for writing/publishing the book. Is that where the USA is headed? Could the State Department restrict export of such a book? Is there really a practical difference between digital information and printed material?

      1. It might soon be time to lose all of my kitchen cutlery in a tragic boating accident.

        1. +100000000

  14. I don’t get it what interest do states have in these files being exported?

    1. Control of people everywhere. Duh.

    2. because guns are like, bad. Super bad. And we need to do stuff. About the bad.

      1. For the children!

    3. They don’t want these files, or the ability to 3D print a gun, to exist at all.
      They are doing their level best to nip this in the bud.

      1. But anyone can buy an 80% polymer frame that takes less than an hour to finish? For the cost of printing one you could probably buy ten.

        1. They’re less concerned about that, because the business you buy it from might maintain records that could be seized. Probably already have been seized by the NSA without a warrant, realistically.

          Whereas if you print it, there’s a good chance they wouldn’t have any way of finding out.

    4. In theory, their interest is public safety, because these files could lead to a tidal wave of ghost guns, that shoot through walls and turn your children into ravening vampires. Or something like that, according to news headlines.

      However, in the actual legal world, this case absolutely should’ve been mooted the second that DD could demonstrate the files were loose on the internet, because they’ll be there forever accessible to everyone and there isn’t a court in the entire country that can provide any sort of relief from that fact.

      1. ^This
        It seems really “arbitrary and capricious” to prohibit Daniel Defense from having something on its website that’s available all over the www.

        Particularly when we’re talking about plans for a relatively expensive way to print inferior firearms, which are easier and cheaper to produce using readily available 19th-century technology.

  15. Typical Team D Clinton judge logic….POTUS Trump needs to replace his ‘senior status’ ass ASAP.

  16. The listing was a 1A violation in the first place.

    1. But they didn’t actually rule on that.

  17. 1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    If the government does not respect the right of the press…

    1. 2A: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

      Soap box. Ballot box. Ammo box.

      1. Spot on.

  18. So – – – –
    NOT doing something unconstitutional has to follow an administrative process?
    Whiskey
    Tango
    Foxtrot

    I have come to the conclusion that “ol’ Willy was right” should start with the judges, then move to the lawyers.

    1. And then clean up any politicians who are not lawyers, just to make the point.

  19. So another lefty judge violates the constitution and clearly written law? Color me surprised.

  20. IIUC this so-called judge just over-ruled the previous court decision, based on admin procedures?

    BTW: How do States have any control over export laws?

    1. That’s what I don’t quite get – how does the APA apply to court ordered outcomes, like settlements and rulings?

  21. I looked; no body else cited it?
    “…If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.”

  22. “The federal government settled that lawsuit in July 2018. Lasnik concluded that the removal of the CAD files from USML was done illegitimately without legally required 30-day notice to Congress,…
    Because the removal to which the States object occurred as of July 27, 2018, a subsequent notice is obviously not timely under the statute.”

    Yeah, emkay and in the ensuing 15 months since the Congress has been too busy to notice and respond because orange man bad despite historical democrat gun control vigilante-ance has remained in democrat crosshairs.

  23. Okay USA how about I put my gun CAD on a server on the Isle of Mann and also on one on St Helena Island. What are you going to do about it?
    Governments are still wholly ignorant when it comes to the WWW and the Internet.

  24. OK Mr. Judge, which part of those files is illegal, the ones, or the zeros?

  25. The good judge is unaware that numerous CAD/design programs are available to anyone who cares to buy them, which make it almost child’s play to manufacture a gun, or anything else anyone desires. The limit is only the extent of financial resources to buy the tools, and that’s a low bar.

  26. The problem is these statists in those States have never produced anything of value in their entire lives.
    So the idea of using craftsmanship skills to actually make a gun from plumbing parts or an 80% plastic part is beyond their thinking.
    But a computer! And a printer! Even they know how to use those.
    So that is what they will fixate on. And ban using the courts

  27. You can operate this with Deltek Vision erp software

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