Opinion

Arizona -(Ammoland.com)- On 23 January 2020, state Attorney Generals from California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, as well as the District of Columbia, filed a lawsuit against various officials in the State Department and the Commerce Department to prevent transfer of some items now under State Department regulation and the International Transfer in Arms Regulations (ITAR) to the Commerce Department.

The case was filed in the United States District Court in the Western District of Washington at Seattle.

Most of the above plaintiffs had previously filed a similar lawsuit to stop the implementation of temporary rules from a settlement which the State Department had made with Defense Distributed. That case is still being litigated in the same Court. The new case will likely be given to the same judge, Senior judge Lasnik.

Any appeal of the decision would be directed to the Ninth Circuit.

The lawsuit is a direct attempt by some state Attorney Generals to impose their version of international policy and subvert the First Amendment of the United States.

The previous policy of finding some computer files as under the control of ITAR rules was established during the Obama Administration. It was challenged as violating the First Amendment by Defense Distributed and the Second Amendment Foundation (SAF). The result of the lawsuit was a settlement in favor of Defense Distributed, which recognized the State Department was likely to lose the case on First Amendment grounds.

Previous case law has held computer files to be speech, under the First Amendment. From eff.com:

“The government is trying to use the same tactic it used in the 1990s to block researchers from sharing computer code online,” said Walsh. “A court first ruled more than 15 years ago that source code was speech protected by the First Amendment, in a case that held the government’s export regulations preventing its publication were unconstitutional. The Fifth Circuit should do the same for design files.”

It is not the Trump Administration which is attempting to void the First Amendment. It is a number of state attorney generals (SAG) who contend they have the standing to force the federal government to regulate the way they want. It is a continuation of the Democrat party's policy of using district court judges as unelected mini-dictators, as a way to stop policy by the Trump Administration, with which they disagree.

Homemade firearms have been constructed in nearly all nations around the world for centuries. Everything from single-shot muzzleloading pistols to sophisticated machine guns and mortars are currently being made in homes and small shops around the world. The information to make guns is widespread and readily available. The SAG claim violating the First Amendment is necessary to attempt to stop the spread of computer files which may make it easier to make some kinds of homemade firearms.

The United States Government is forbidden, by the First Amendment, from placing prior constraints on publishing information. The SAG claim not only must the federal government prohibit the international publication of these files, but they must also prohibit the publication of the files in the United States. If the files can be published in the United States, effectively, the U.S. government cannot stop their export. In their filing, the states attorney generals note this fact. From the complaint:

9. The Final Rules effectively deregulate 3D-printable gun files entirely. Because the Commerce Department lacks jurisdiction over “published” items, the Final Rules create a self-executing loophole whereby anyone can automatically divest Commerce of jurisdiction over Firearm Files simply by disseminating them to members of the U.S. public (which is not prohibited by federal law). This exception to Commerce’s jurisdiction is broad and significant because it is so easy to “publish” Firearm Files. Indeed, a private company known as Defense Distributed has already published some Firearm Files, rendering those files outside Commerce’s jurisdiction pursuant to the Final Rule. For example, Defense Distributed represented to this Court that it has disseminated its files domestically to members of the public by mail.

Effectively, the SAG claim information on how to make guns is dangerous to the public, so it must be controlled by the federal government. This is a direct attack on the First Amendment.

Anti-Gun States Sue to Stop First Amendment, Impose Controls on Firearms Information

The SAG claim they have standing because if guns can be homemade, they make the various heavily restrictive gun laws in those states less effective. The SAG claim the reform regulation, proposed by the Trump Administration, which followed correct administrative procedure, was unlawful:

18.Defendants’ unlawful actions—if allowed to stand—will lead to the proliferation of downloadable guns overseas and domestically, threatening our national security. The proliferation of untraceable and undetectable weapons within the United States threatens to cripple the various States’ extensive and comprehensive systems of firearms regulations designed to keep guns out of the wrong hands.

That is a direct attack on the premise of the Second Amendment. The SAG ignores the failure of those regulatory schemes to prevent prohibited persons from obtaining firearms, and that homemade firearms have existed, legally, for the entire period of the United States existence.

The SAG claim they have standing because of “Public Safety”!

21.Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e) because Plaintiff the State of Washington is located here and a substantial part of the events or omissions giving rise to the claim occurred or will imminently occur here. In particular, the dissemination of the Firearm Files in question will have an adverse impact on the public safety in the City of Seattle and King County, Washington, which are located in this district.

It is extremely difficult to find any issue which does *not* have some impact on public safety. The SAG, not surprisingly, ignores all First and Second Amendment implications of the case.

The SAG claim the Trump Administration did not follow procedures fully enough, or diligently enough, according to the Administrative Procedure Act (APA), which the lower courts are using as a bludgeon to stop regulatory actions the Democrats disagree with.

It is important the appeals courts or the Supreme Court rule quickly against this tyranny by the mini-dictatorships of hundreds of District Court federal judges.

States have the power to pass and attempt to enforce stupid, ineffective, laws. The federal government is not required to aid them in the enforcement of their irrational regulatory schemes.

The Gun Control Act of 1968 (GCA) was passed, in part, as a scheme in which the federal government attempted to aid the states in their schemes to infringe on the Second Amendment. This is why the GCA forbids people from purchasing firearms across state lines. It is directly in conflict with one of the purposes of the Commerce Clause, which was to *prevent* states from imposing barriers to trade across state borders.

GCA 1968 did not reduce crime. Crime and murder rates soared after the GCA was put into effect. GCA 1968 created a regulatory scheme as a step toward more and more restrictions on Second Amendment rights.

The idea that legislation, aimed at the general population, can keep guns out of the hands of dangerous people, is a dangerous delusion in a nation with over 400 million guns and hundreds of millions of the tools and technology to make them, in the hands of hundreds of millions of citizens.





About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.