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

Opinion

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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.

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Ansel Hazen
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Ansel Hazen

Something like this should result in a class action lawsuit filed by the likes of GOA, SAF, JPFO, and every states local version of same. I’ll be contacting the organizations in Maine that I belong to.

gunnerdd517
Member

I really dont care what tyrants want. I will not comply. The “rule of law” does not apply when tyrants get control.

RJL
Member
RJL

“The Constitution is over 200 years old and societies change. It must change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that.” The late, great Justice, Antonin Scalia No free man shall ever be debarred the use of arms.” Thomas Jefferson “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” Thomas Jefferson “The tree of liberty must be refreshed from time to time with the blood of… Read more »

Circle8
Member
Circle8

Each state listed are run by Anti America politicians and they should be tried for treason. Filing the case in Washington State is the same as filing in Venezuela The state is corrupt and run by a bunch of transplanted Khalifornians. Years ago Oregonians had signs that read “Californians go home” and “Do not Californicate Oregon”. You can see how that didn’t worked out. It is the same in WA. Message to the damn CALIFORIANS moving to other states. GO BACK TO YOUR OWN TOILET.

JPM
Member
JPM

These same ass hole State Attorneys Gerneral (the correct term, not “Attorney Gernerals”), who would be all over any other violations of the 1st Amendment, attack ANYTHING associated with the 2nd Amendment, including the 1st Amendment, even though it makes them appear as the blatant two-faced hypocrites that they are.

Tionico
Member
Tionico

So Wasington’s corrupt AtG claiims Seattle have a “gun violance problem”. He is correct, for once in his life. But he is WRONG when he tries to link that issue with computer stored manufacturing data for guns. Seattle have a gun problem, which is a RESULT of their homeless, illegal invader/migrant, and law enforcement problems, endemic for at least two decades. Nearly every case of which I’ve read has involved homeless, people illegally present in the US< and/or othre classes of prohibited persons who are enjoiined from possession of firearms. Fergie blaming HIS gun problems on computer code is proof… Read more »

StWayne
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StWayne

OF THE BIGGER PICTURE: This is how tyranny gets a foothold. Many a freedom has been stifled under the color of the law. What matters most is not that they do it, that is to be expected because of what they are–intolerants of liberty–but that what they do is always tolerated by the very nature of that, which affords them that right to begin with. If liberty, freedom of speech and the pursuit of happiness is to be guarded from egregious hacks like this, those who would see these things placed in bondage because they fear what they could never… Read more »

Tionico
Member
Tionico

There is a SERIOUS jurisdictional issue with this lawsuit, and it amazes me NO ONE is calling them on it. READ your Constituton. Turn to Article Three Sectioin Two Paragraph Two. It says In ALL casesaffecting Ambassadors, other public ministers (ya think this includes President? I do…) and Consuls, AND THOSE IN WHICH A STATE SHALL BE A PARTY (as in this matter, certainly) the SUPREME COURT shall have ORIGINAL jurisdiction. That means the hand picked couirt in Western Washington does NOT have “original jurisdiction”m which is by definiton the FIRST court in which a case is filed. This two… Read more »

Vern
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Vern

Just like satan and his followers.

Wild Bill
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Wild Bill

@USA, Yep, sheep will be sheep until the slaughter.

Oldman
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Oldman

This is (slightly) off topic, but how does Bloomincommie get away with that campaign ad at the Superbowl which stated that 2000 ++ children are killed every year by gun violence? First I heard of that.

Wild Bill
Member
Wild Bill

@Om, Bloomturd just lied and paid the bill for the ad.

Circle8
Member
Circle8

That little turd thinks he can buy the presidency and the government.

Vern
Member
Vern

Democrats who tell their lies take encouragement in that they know only true democrats will totally believe their lies. It is encouraging to know that true democrat numbers are dwindling.

Finnky
Member
Finnky

I believe it is true under certain conditions, which includes considering anyone young enough to be on their parents health insurance to be a child. Don’t you all consider 25 year olds to be irresponsible children?

In his mind, bloomy sees himself as fighting for “right”. Thus whatever he says or does is “right”. Unfortunately no logic or moral reasoning will reach him. Our best hope to avoid violent solutions is to provide logic, morals and emotion reasoning to those whom he is trying to mislead.

Circle8
Member
Circle8

You know where the National Felon League stands. They would not allow commercials for Veterans but gladly accepted money from the little twerp by going against the constitution. The National Felon League is anti American and deserves to go broke. My family will not watch, participate or help that group of felons under any circumstances. I don’t know what companies sponsor their activities but when I do hear of one of their names we do not purchase or associate with that company. That includes many of our friends.

MICHAEL J
Member
MICHAEL J

Democrat communist govenors use their attorney generals as their personal enforcement thugs. Find a crooked govenor and you’ll find a crooked attorney general.

Tionico
Member
Tionico

In Wasington AtG Robt Ferguson (the same rat that has been persecuitng Baronelle Stutzman for years, the florist in Tri Cities) And Jay Inslee are two pees out of the same pod. Neither care a fig for the PEOPLE of Washington,only their own little power mongering game matters to them. Together they have made me start seriously considering leaving this state where I’ve lived forty years. Eedjits, both. Dirty eedjits.

Wild Bill
Member
Wild Bill

@Tio, “…two pees…” that is the funniest play on words that I have seen here for months. You get a gold star for the day!

Oldman
Member
Oldman

@to If you have the means to leave our state, you should hurry up and go. Can’t go south, can’t go west and can’t go north unless you even want more control. From experience, I have found that the prices of property in Idaho are doubling every five years. Being on a fixed income, I feel I will have to die here in the evergreen state, which the way things are going will probably be sooner than later.

Wild Bill
Member
Wild Bill

@MJ, Yes, yes they are like the communists! Compare with the communist party actions regarding the corona virus: China Arrested Doctors Who Warned About Coronavirus Outbreak. Now Death Toll’s Rising. Brendon Hong HONG KONG—The new coronavirus that has spread consternation around the world over the last few weeks has now killed more people in China than the SARS epidemic of 2002-2003. Yet, last December before people all over China were falling sick with pneumonia-like symptoms, before people around the world grew alarmed about a disease leaping from captured wild animals to human shoppers in dense Chinese food markets … eight… Read more »

CourageousLion
Member
CourageousLion

Fact is…the “gun control” debate was ended with the Ghost Gunner and 80% lowers and 80% grip frames. Heck the guys at Polymer 80 must be billionaires by now. Their product sells like popcorn at a good movie. I’ve often thought about making one, but heck I don’t need to.

Quatermain
Member
Quatermain

So rebuilding classic cars or making a home made dune buggy must also be dangerous to public safety…

CourageousLion
Member
CourageousLion

Absolutely. And any modification of said transportation goes against the rules of the other ATF. Automotive Transportation Facists. You are not allowed to improve your ride! Oh wait, who pays attention? NOT ME!

Sisu
Member
Sisu

Good well organized analysis.

I believe an additional problem lies in the fact that state and local government officials have virtually unlimited funds (given ability to deficit finance without practical limits) and no penalties for bringing abusive, frivolous, nuisance lawsuits.

Hopefully the changing complexion of the federal judiciary will result in this case being rapidly dismissed with prejudice.

Final notes – Why is the US Congress not asserting its jurisdiction over federal law ? And, herein is additional evidence that “administrative law is unlawful”.

CourageousLion
Member
CourageousLion

Yes, and those unlimited fund on the local level are STOLEN from the citizens via the 1st plank of the communist manifesto. ABOLITION OF ALL RIGHTS TO PRIVATE PROPERTY and the APPLICATION OF ALL RENT TO PUBLIC PURPOSE. Oh, that’s right, “they” call it “property taxes” the commies call it rent. Don’t pay that rent and see what happens when armed men come to kick you out of “your” house.

Tionico
Member
Tionico

A more relevant question: WHY are not the Senate going after these rogue judges in lower Federal courts, who serve “for life, upon good behaviour”, and who engage in BAD behaviour when they take up cases such as this one, which the US Constitution clearly states can ONLY be taken up by the SCOTUS on original jurisdiction? Read the Constituton, Art 3 Sec 2 Par 2. The SENATE have authority to confirm, and also to remove, on bad behaviour, ALL Federal level judges. This would include the corrupt Lifson, and his poal Robart, both in the court that is illegally… Read more »

Wild Bill
Member
Wild Bill

@Tio, that little bit of corruption, also, goes back to the political parties. There was an unspoken agreement between the parties that if you refrain form impeaching our judges when you are in power, then we will refrain from impeaching your judges when we are in power.

Sisu
Member
Sisu

I suspect there is no good basis for removal of such judges. Though, complementing the Article 3 issue, I wonder why the State AGs can “venue shop” when the issue appears to be a “federal v state” jurisdictional authority (10th and 14th Amendment questions) ? Again, I say “administrative law is unlawful” and perhaps that’s implicitly what the States are arguing – the Commerce Dept has no jurisdiction. … That would be a desirable “unintended consequence”. … Now to read the complaint and follow the case. …

Wild Bill
Member
Wild Bill

@Sisu, No, Tio is correct. A term of good behavior (or bad behavior) is what the Senate says it is.

option31
Member
option31

It is arrogance or stupidity on these peoples part. To stop this you have to ban knowledge, steel, melting of steel, metal lathes, calpiers, micrometers, tool steel and a host of other items. To build a firearm is NOT rocket science – it is very basic stuff that honestly if you do not care what it looks like or a fine accurate tool any bozo can build one with a few hundred dollars and two brain cells – which I will add is two more brain cells than these AG’s. This on a deeper level is not about safety or… Read more »

CourageousLion
Member
CourageousLion

That was totally disgusting what that “Judge” did.

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Wild Bill
Member
Wild Bill

Every kid should know about patriotic jury nullification before they graduate the sixth grade.

CourageousLion
Member
CourageousLion
option31
Member
option31

Fully Informed Juries will stop these illegal acts. Every body that believes in freedom and limited govt should go to fija.org read the info and spread the word. If prosecutors cannot get convictions they will not enforce illegal laws. It has happened numerous times, the 55mph federal speed limit was not repealed because the feds came to their senses, it was repealed because it was largely ignored and once the states stopped enforcing it it was over. Here in Nebraska their is a woman and so arrested for selling cbd oil, after a few weeks the prosecutor dropped the charges… Read more »

Wild Bill
Member
Wild Bill

@USA, Reminding us of Walter F. Smith and what he did is a public service! This could happen to any of us. Guilt by accusation and rubber stamping of it by a corrupt judiciary.