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July 11, 2018

HERE’S MORE ON THAT IMPORTANT FIRST/SECOND AMENDMENT CASE I MENTIONED YESTERDAY: The Government Will Allow Cody Wilson’s Defense Distributed to Distribute Gun-Making Software.

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.

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.”

Wired is a sad shadow of its former self. And I want to point out that this started with a 2014 Tennessee Law Review symposium on the Second Amendment.