The Department of Justice announced on Thursday that it filed a brief in opposition to a preliminary injunction against a State Department agreement with 3D-printed gun pioneer Cody Wilson. The injunction was requested by a group of state attorneys general in federal court.
In the brief, DOJ accused the AGs of misunderstanding the issue at hand in the settlement. It further claimed that the AGs want the Department of State to exceed the authority granted to them under current law. DOJ said the case was not about the legality of 3D-printed firearms but, rather, about the potential export of technical firearms data to foreign nationals.
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"This case is not about the regulation of U.S. persons who wish to utilize a 3D printer to manufacture their own small-caliber firearms," DOJ said in the brief. "Rather, this case concerns the Department of State's delegated authority to control the export of defense articles and services, or technical data related thereto, that raise military or intelligence concerns. The Department is tasked with determining what technology and weaponry provides a critical military or intelligence advantage such that it should not be shipped without restriction from the United States to other countries (or otherwise provided to foreigners), where, beyond the reach of U.S. law, it could be used to threaten U.S. national security, foreign policy, or international peace and stability. Domestic activities that do not involve providing access to foreign persons, by contrast, are left to other federal agencies—and the states—to regulate."
In 2013, the State Department sent a letter to Cody Wilson claiming his publishing of designs for a single-shot 3D-printed firearm known as The Liberator and other firearms or firearms accessories without first obtaining approval from them could be considered an unauthorized export of firearms to foreign nationals that might result in potentially unlimited fines and jail time. Wilson took all gun-related design files down from his website as a result—though the files have remained freely available on dozens of other websites since then. He then joined with the Second Amendment Foundation to sue the State Department claiming it was infringing upon his First Amendment and Second Amendment rights.
On July 15, 2018, Wilson and the Second Amendment Foundation announced that the State Department had given up their claim against the publishing of the gun designs and settled with them. The State Department later told reporters they had settled because of advice from the Department of Justice that they would eventually lose the case.
"This has obviously gone through a legal process," Heather Nauert, State Department spokesperson, told reporters during a briefing. "The Department of Justice was advising the State Department on this entire legal matter. The Department of Justice suggested that the State Department and the U.S. government settle this case, and so that is what was done. We were informed that we would've lost this case in court, or would have likely lost this case in court based on First Amendment grounds. We took the advice of the Department of Justice, and here we are right now."
Gun-control activists were alarmed by the decision to settle the case and allow Wilson to publish the designs. Though efforts by leading gun-control groups to stop the settlement in court failed, eight state AGs were able to get U.S. District Court judge Robert S. Lasnik to grant a temporary restraining order against the State Department to prevent enforcement of the deal. This week's filing by the DOJ is in response to the state AGs' request that the temporary restraining order be turned into a preliminary injunction.
The DOJ said that the argument employed by the state AGs in their request addresses concerns beyond what the State Department has the power to regulate.
"Plaintiffs misunderstand the fundamental limit on the State Department's authority," DOJ said in the brief. "According to Plaintiffs, the Government's export-related determinations—specifically with respect to the export of technical data developed by Defense Distributed—have jeopardized their ability to protect the safety and health of their residents."
DOJ said the AGs are concerned with potential crimes committed by those in the United States if the files published by Wilson were to be downloaded by criminals in their states. However, DOJ said, the State Department's power to regulate the export of firearms does not allow it to ban the publication of information in the United States out of fear that domestic criminals may misuse it.
"The domestic harms about which Plaintiffs are allegedly concerned are not properly regulated by the Department under current law," the DOJ said in the brief. "Plaintiffs' allegations of harm are not reasonably attributable to the Department's regulation of exports, but rather focus on the possibility that third parties will commit violations of the Undetectable Firearms Act or other relevant laws that are not at issue in this case."
The DOJ did reiterate that the manufacture or possession of completely plastic firearms that can pass through a metal detector or airport X-ray machine undetected is already illegal under federal law. Attorney General Jeff Sessions said the DOJ would continue to enforce the Undetectable Firearms Act even though it is not at issue in the case.
"Under federal law, it is illegal to manufacture or possess plastic firearms that are undetectable. Violation of this law is punishable by up to five years in prison," Sessions said in a statement. "Such firearms present a significant risk to public safety, and the Department of Justice will use every available tool to vigorously enforce this prohibition. We will work with federal, state and local law enforcement to identify any possible cases for prosecution. We will not stand for the evasion, especially the flaunting, of current law and will take action to ensure that individuals who violate the law by making plastic firearms and rendering them undetectable, will be prosecuted to the fullest extent."
Cody Wilson's Liberator design, which has been at the center of the case and the media firestorm surrounding it, utilizes a metal firing pin and is intended to include a metal plate which make it unlikely to evade a metal detector.
The DOJ said it did not believe the state AGs' argument met the standard necessary to grant a preliminary injunction against the State Department's settlement with Cody Wilson and characterized doing so as being akin to the court substituting its own judgement for that of the executive branch.
"Plaintiffs have failed to demonstrate that the facts and law clearly favor their position with respect to the merits of their claims, or that it is in the public interest for the Court to second-guess the national security determinations of the Executive Branch," the DOJ said in the brief.