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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.

Mark McDaniel/ReasonMark McDaniel/Reason

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.

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  • Don't look at me.||

    I wasn't going to download it, but now I guess I should.

  • Diane Reynolds (Paul.)||

    In a lawsuit filed today in federal court in the Western District of Washington in Seattle, the state of Washington

    For those keeping score at home, pretty much all our AG does is sue the Trump administration. He's essentially a one-man legal virtue-signaling machine with sights on higher office.

  • Cynical Asshole||

    with sights on higher office.

    Seems like that's a prerequisite for the job of AG, isn't it?

  • TeamsterX||

    Lordy, Eric Holder is testing to see if he should run for President in 2020. That scares the beejezus out me.

  • Scarecrow Repair & Chippering||

    with sights on higher office

    Literally, figuratiively, or virtually?

  • Mark22||

    Yes!

  • dave in PRAA||

    PLEASE!!! come up with a new picture of this guy. Please.

  • Don't look at me.||

    The picture of the gun with the thing that goes up is triggering me.

  • Ekke Ekke Ptang Zoo Boing||

    And the 30 magazine clip

  • TxJack 112||

    You mean the magazine?? A clip is used to load a gun like a M1 Garand. The actual term is stripper clip.

  • μ Aggressor||

    Whooossh

  • WuzYoungOnceToo||

    {YeahThatsTheJoke.jpg}

  • Deep Lurker||

    It's part of the Massive Resistance against the evils of this modern civil rights movement. "Gun control today. Gun control tomorrow. Gun control forever!"

  • Fist of Etiquette||

    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.

    What's a little frivolity when control and votes lives are at stake?

  • FiftycalTX2||

    What's a little frivolity when CAMPAIGN MONEY is at stake?

    FIFY

    Since no self-respecting crook, terrorist or crazy person would stoop to spending $2,000 on a "computer printer" that makes a fully semi-automatic SINGLE SHOT gun, this is nothing but FUND RAISING by the gungrabbers. And they don't care that they will lose and have to PAY for their frivolous law suit because it will come out of the STATES pocket, not theirs.

  • Ken Shultz||

    I read elsewhere that in addition to the agreement Cody Wilson won in his federal case, the government also picked up his legal fees, which were about $40,000.

    Getting sued by 20+ states has gotta be expensive, I'd bet more so than what he spent the first time. And it's really unfair considering that the states that are suing him effectively have bottomless pockets.

    Wish there were another way than Twitter to contribute to his defense. Maybe buy whatever you can afford from Defense Distributed?

  • Ken Shultz||

    I figure if Reason wanted us to link to Defense Distributed's products for sale page, they'd have done so.

    You guys know how to use DuckDuck Go though, right?

  • HenryC||

    This time the states are suing the Feds, not Cody Wilson.

  • Ken Shultz||

    "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.)"

    I've read elsewhere that some 20 states have now joined these suits.

    "Twenty states announced Monday that they plan to ask a federal judge in Seattle to immediately issue a temporary restraining order against Defense Distributed"

    ----Ars Technia

    http://arstechnica.com/tech-po.....-internet/

  • Giant Realistic Flying Tiger||

    They're shitting themselves here. It's pretty obvious.

    Also, they've apparently never heard of the Streisand Effect.

  • loveconstitution1789||

    I love going on Ars Technica and use my 20 accounts to downvote Lefty comments and upvote the comments they try and make disappear.

    The Lefties even comment in a frustrated manner "who is upvoting these"? Hilarious.

  • TxJack 112||

    The fact they are filing the lawsuit in Seattle says loads about their chances of winning. As is typical, they are judge shopping in the most liberal part of the US hoping to get a nationwide injunction as well as ensure the first appeals go to the 9th circuit who will make a moronic ruling as they usually do.

  • Jerryskids||

    The "violation of the APA" argument is interesting - the EPA's been enacting new rules by settlement for years and I don't recall that there are a bunch of AG's suing over how they operate. The EPA even funds the environmental groups that sue them in order to "force" the EPA to adopt new rules outside of the APA framework. Once Pruitt stopped that nonsense, of course, then it suddenly became an issue.

  • Ken Shultz||

    That is so racist.

  • Jerryskids||

    You may be right - now that I think about it, it is suspicious that the EPA goes out of its way to make up its own rules just to avoid any contact with the black letter law.

  • Cynical Asshole||

    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.

    So, does this mean that "state's rights" is no longer a racist dog whistle?

  • Brett Bellmore||

    No, as always it depends on the party affiliation of the person using the term.

  • Get To Da Chippah||

    States have a Tenth Amendment right to violate the First Amendment!

    /progs

  • Alan@.4||

    In Western Pennsylvania, where I these days reside, there is a fairly often heard negative response to really dumb proposals such as the supression of FREE SPEECH advocated by the PA Attorney General and officialdom or officialdumb elsewhere, regardinginformation concerning "printed guns" as they are describd. It runs as follows. GO POUND SALT. In my view, that is the only response the AG's proposal is deserving of.

  • perlchpr||

    Jesus Christ fuck these people.

  • Comal_SanJacinto||

    Tried to download, get a bad gateway error.

  • DaveSs||

    Server is getting slammed. Every couple pages, his host shows an error.

    Either by DoS attack (most likely), or by people trying to download.

    But I was able to download it.

  • HenryC||

    The patterns are nothing but computer files. They are not guns. It is a first amendment freedom of speech issue, not a gun issue, 2nd amendment or 10th. The states can make it illegal for the individuals to manufacture the guns, but they cannot stop the distribution of the software. That is what the court decided. It was not just a we don't want to fight anymore, it was more, we can't really fight this.

  • Ken Shultz||

    I understand if you're arguing that the issue in this case is narrowly defined to the First Amendment, but I do not concede that the Second Amendment doesn't protect the right of individuals to manufacture guns for their own use.

    Even if we didn't have the right to buy, sell, or distribute guns, we'd still have the right to make them for our own use.

  • TxJack 112||

    Problem is they are not seeking to ban the gun when made, they are seeking to ban the computer files to make it. They are attempting to ban speech which is illegal and unconstitutional. Since there is no specific national security issue, the feds nor the states can ban someone from talking about how to make a 3D gun or stop transfer of the files. They only thing they could regulate is the actual making and possession of such a gun. However, they cannot ban it but only make possessing one so costly and/or a pain that no one wants the hassle. Outlawing guns never works. Look at the "assault weapons" ban in California. Although they cannot be sold or transferred there are still 1.2 million in the state and when the registration law was passed less than 300,000'rifle owners complied

  • Rockabilly||

    It's too late now man. I have the files and I shared them.

    ahahahahhahaaaaa

  • Jerry B.||

    They should probably try to ban pictures of the Defense Distributed Liberator pistol as well, especially disassembled with all parts shown, as anyone reasonably conversant with 3D printing could probably reverse engineer one from a picture. Not to mention that they could borrow someone's AR-15 lower receiver, do some measurements, and produce a 3D printed copy.

    Perhaps we should sue to ban pictures of Chuck Schumer, as someone could 3D print a copy that would be more functional.

  • loveconstitution1789||

    The state of Washington also acknowledges the right it citizens to have arms.

    State of Washington Constitution,Text of Section 24:
    Right to Bear Arms.
    The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

    Its moot anyway because the 2nd amendment protects all Americans in the right to keep and bear Arms. The 14th Amendment incorporates that protection as a minimum for every state.

  • Rich||

    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

    Serious question: Does this mean that a *single* government agency cannot act on its own? That is, any federal act *must* involve at least two agencies?

  • Brett Bellmore||

    More to the point, does this mean that agencies can refuse to implement court settlements, pending the outcome of a "study"?

  • Rich||

    It's "studies" all the way down!

  • Rev. Arthur L. Kirkland||

    See? See?

    You speech nuts have pushed things so hard in your demands for free speech even in public that you've provoked a multi-state backlash that's not only going to wipe out free speech in public, but go on to destroy the reasonable right to speak freely in your own home for purposes of self-defense.

  • Giant Realistic Flying Tiger||

    No "goobers"? No "crushed by your betters"? No "force it down your throat sideways"?

    Fellas, this is as close as we're ever gonna get to Kirkland admitting his side lost!

  • DaveSs||

    Except it won't because all that will be accomplished is for these moron AGs to waste taxpayer money on lawsuits they should already know for an absolute fact that they will lose.

    The complete schematics for all kinds of firearms have appeared in print for centuries, and online since the beginning of the internet.

  • Gilbert Martin||

    "Except it won't because all that will be accomplished is for these moron AGs to waste taxpayer money on lawsuits they should already know for an absolute fact that they will lose."

    The AG's don't care about wasting taxpayer money - it's not coming out of their own pocket. They are perfectly happy to use taxpayer money for their own private purpose of lefty virtue signaling to help boost them into some higher political office.

  • ||

    Hahahahaha nope

    It'll actually be the opposite. These AGs will be smacked down hard, and freedom to speak and manufacture guns will be increased

  • Brett Bellmore||

    Cool, you're parodying the ACLU on guns, right?

  • Enjoy Every Sandwich||

    but go on to destroy the reasonable right to speak freely in your own home for purposes of self-defense

    Bwuhaha, that's one of your funniest ones yet!

  • LiborCon||

    What's so wrong with reasonable speech control? No one needs to engage in offensive assault speech that hurts people's feelings. There are plenty of other types of speech that aren't hateful or controversial.

    Some ideas are just too dangerous to be expressed in a civilized society.

  • DenverJ||

    Two points, ok three:
    1. Now they discover the 10th?
    2. If I were forced to have a man-crush, I'd choose this guy. It's not his fault his parents named him Cody.
    3. You know who else slept with Eva Braun?

  • WuzYoungOnceToo||

    3. You know who else slept with Eva Braun?

    Jon Lovitz?

  • IceTrey||

    First of all the states don't have any right to regulate firearms. Second of all a lawyer should know the Constitution is written on parchment which is pretty thick. Third of all the most important thing is that the government declared that semi automatic firearms up to .50 caliber or not weapons of war.

  • Bubba Jones||

    The states did not ratify the constitution for the purpose of limiting the states. They did it for the purpose of limiting the feds.

    The 14th puts limits on what the states can do, but it is a stretch to argue they can't regulate guns at all.

  • Rebel Scum||

    Consider that the first amendment names the federal legislature specifically, whereas the second amendment makes no such distinction. 14A or no 14A, 2A is binding to the states whereas 1A is not.

    And "...the right of the people to keep and bear arms shall not be infringed." is pretty unambiguous.

  • TxJack 112||

    All states regulate firearms in one way or another. This is why you cannot take firearms into certain locations in addition to those prohibited by the Feds. The only thing the Constitution prohibits is the outright banning of gund which is and has been the battle for decades. It is also why states like California, NY,NJ and also DC make it almost impossible to own one by regulations and licensing requirements.

  • Rebel Scum||

    states' rights to regulate firearms

    States do not have rights, they have granted authorities and explicit restrictions just like the feds. When it comes to firearms, the federal constitution is supreme and it does not allow for the overwhelming majority of existing and proposed firearms regulation.

  • TxJack 112||

    What? The civil war fought explicitly over the issue of states rights. The 10th amendment specifically states that all power not specifically enumerated and granted to the Federal govt are reserved to the states. The Federal govt was set up to defer to the states on most issue except the specific powers given to it in the Constitution such as interstate commerce etc.

  • gordo53||

    3D-Printed guns are a technological novelty that has all the gun control advocates shaking in their boots. The reality is that 3D-printed weapons tend to be significantly inferior to their manufactured equivalents. If there is a threat from "homemade" firearms, it is the various lines of "80%" guns that are partially completed blocks of aluminum that come with instructions on how to complete the unfinished pieces. The resulting product is a working firearm that rivals the quality of manufactured weapons is perfectly legal and has no serial number. For the uninitiated, federal firearms law does not affect most of the parts of a firearm. In general it is the piece that makes it possible to fire the weapon. In the case of the dreaded AR-15, it is the lower receiver. Everything else; barrel, trigger, ejector, stock, sites, etc. can be bought online without any background check. There are multiple videos on YouTube. The business must be thriving as there are quite a few sites selling these kits. It's funny that you never hear a word about these. It's all the 3D-printed crap.

  • TxJack 112||

    Yep. My circle of friends build rifles all the time. We have not ventured into using 80% lowers yet because parts are so cheap there really is no need. In the past three years we have built at least 8-10 rifles in different calibers. The only difference when using a 80% lower is since it has no serial number you cannot transfer it to any other person even as a gift. It must be held by the person who makes it. However when the anti gun zealots finally discover what a true ghoast gun is, like you, I am positive they will lose their minds.

  • Mock-star||

    "The only difference when using a 80% lower is since it has no serial number you cannot transfer it to any other person even as a gift. "

    Unless your state or locality has a law saying otherwise, absolutely you can. The only prohibition on manufacturing serial-less firearms is that you cannot make them with the intent of selling them. Intent of sale is left to the discretion of law enforcement though ---- but giving as a gift is ok.

  • TxJack 112||

    So if this decision violates the 10th amendment that means every Federal gun law on the books also violates the 10th amendment. The simple truth is these states do not want any person to have the ability to make a firearm they cannot seize when the choose. Plastic guns sound great except the pressures and heat generated by firing them causes them to disintegrate quickly. In addition a 3D printer than could make a metal gun cost thousands which normal people cannot afford. Any gun made can only be used by the maker.

  • Gilbert Martin||

    There is nothing in the 10th Amendment that allows states to violate the 1st and 2nd Amendment rights of individuals.

  • Krokko||

    Ludicrous pants wetting opinion on CNN by Alyssa Milano... (link was too long)

    One of those old Army manuals describes how to make a single-shot pistol out of a piece of pipe, and I haven't seen any fury over that...

  • chipper me timbers||

    Even though the argument is incorrect on this one, I'd sure like to see the 10th Amendment come into prominence.

  • DH||

    Meanwhile, while I build a pipe shotgun for 20$ with materials i picked up at my local hardware store....

  • Naaman Brown||

    Like the "zip gun"/pipe gun used in Death Wish 3 carried by the character Rodriguez to help Paul Kelsey take the neighborhood back from the gangs?

  • Naaman Brown||

    AOL news feed headline from Reuters 31 July: "Trump questions 3D gun sales as states sue"

    Defense Distrubuted posted files for making gun frames on 3D printers six years ago. The files are already out there, and have been copied all over the world wide web (and the dark web as well). The fact they were banned made it hip to copy them & pass them around. The ban on distributing the files only applied to Defense Distributed because they are a federally licensed business. For the past six years there have been no credible claims that 3D printed guns are any more an actual crime problem than the legendary "shoulder thing that goes up".

    The US Department of State decided that technical info on guns (manuals, schematics, 3D printer files, etc.) should not be regulated as actual munitions; therefore, the Department of Justice settled with Defense Distributed allowing them to resume publishing their files.

    Current law is
    (a) that, if you can legally buy and own a gun, you can make a gun for your own personal use,
    (b) that it is illegal for anyone not a federally licensed manufacturer to make guns to distribute, and
    (c) that it is illegal to be in the business of selling guns if you are not a federally licensed dealer.

    As with most gun control "threats" and "solutions" the menace of 3D printed gun sales is all hypothetical. An exaggerated threat and a useless solution. The computer files have been out there for years and are easily copied and distributed.

  • Naaman Brown||

    "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."

    How have state and federal regulations affected sources of firearms to dangerous individuals?

    Bureau of Justice Statistics
    Firearms Use by Offenders
    (survey of prison inmates who carried or used a firearm in their last offense)

    Source of firearm 1991 - 1997 - 2004

    Retail Purchase or trade 20.8% - 14.0% - 11.3%
    - Retail store 14.7 - 8.2 - 7.3
    - Pawnshop 4.2 - 4.0 - 2.6
    - Flea market 1.3 - 1.0 - 0.6
    - Gun show 0.6 - 0.8 - 0.8

    Family or friend 33.8% - 40.1% - 37.4%
    - Purchased or traded 13.5 - 12.6 - 12.2
    - Rented or borrowed 10.1 - 18.9 - 14.1
    - Other 10.2 - 8.5 - 11.1

    Street/illegal source 40.8% - 37.3% - 40.0%
    - Theft or burglary 10.5 - 9.1 - 7.5
    - Drug dealer/off street 22.5 - 20.3 - 25.2
    - Fence/black market 7.8 - 8.0 - 7.4

    Other 4.6% - 8.7% - 11.2%

  • Mark22||

    And the really stupid thing about all this is that you can pick up tons of books on gun smithing and that making guns requires nothing more than simple metal working tools. Using a 3D printer is more complicated and more costly than that.

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