Ninth Circuit Panel Finds in Favor of SAF, First Amendment, State Departement, and 3D Freedom

Image screenshot from C-Span, cropped and scaled by Dean Weingarten

On 27 April, 2021, a three judge panel of the Ninth Circuit Court of Appeals found, in a split decision, that Judge Lasnik of Washington State did not have the authority to issue a preliminary injunction preventing a final rule change in the Department of State and Department of Commerce from taking effect. From the decision:

R. NELSON, Circuit Judge:

The U.S. Department of State (“DOS”) and Department of Commerce appeal the district court’s order granting the motion of 22 states and the District of Columbia to enjoin DOS’s final rule removing 3D-printed guns and their associated files from the U.S. Munitions List. Because Congress expressly precluded review of the relevant agency actions here, we vacate the injunction and remand with instructions to dismiss.

The decision is the latest chapter in a long string of judicial actions where the powers that be have attempted to throttle both the First and Second Amendments under the dubious claim of “national security”.  

The current decision is ultimately in favor of both First and Second Amendment freedoms, albeit in exceedingly technical arguments about court authority, congressional intent, and executive actions. 

Here is a sum of the history leading to the current decision:

 On 6 May, 2013, Cody Wilson of Defense Distributed demonstrated the feasibility of using a 3D printer to make a crude, single shot pistol.

Three days later, Glenn Smith of the State Department sent a letter to Wilson and Defense Distributed demanding they stop sending files about the 3D printed pistol to the Internet, claiming they *might* be “ITAR-controlled technical data”. Defense Distributed immediately complied.

In July of 2015, Defense Distributed and the Second Amendment Foundation (SAF) joined together to file a lawsuit against the state Department for violating their First and Second Amendment rights.

In June of 2018, the State Department agreed to settle the lawsuit. It was a victory for both First Amendment free speech, but for Second Amendment rights as well, moving all small arms up to .50 caliber from State Department jurisdiction to the Department of Commerce.

In August of 2018, Judge Robert Lasnik of  Washington State issued a temporary injunction against the final rule agreed to in the lawsuit settlement from taking effect. 

Here is a video of the response from the State Department, as well as an explanation of the issues involved.

In November of 2019, Judge Lasnik ruled the State Departement violated administrative procedure in making the final rule. 

Now, on 27 April of 2021, the three judge panel finds Judge Lasnik was outside his authority in ruling against the rule-making authority of the State Department and Commerce Department. 

Ever since the topic of 3D printed guns has come up, the Left has been apoplectic in their demand to have government control the flow of information. It is a direct assault against the First Amendment.  The information on how to make guns has been widely available for hundreds of years. People have made guns outside of government control the entire period.  These facts have been well known for the entire period.

Somehow, the concept of 3D printed guns reaches deep into the dark heart of those who desire total control over every aspect of the human  condition. 

A few months ago, Defense Distributed won a critical decision in the Fifth Circuit, allowing a lawsuit against New Jersey AG  Gurbir Grewal for violating their First Amendment rights.

The next part in the drama is whether the parties desperate to control the flow of information will appeal the decision of the three judge panel to the Ninth Circuit for an en banc panel. If the history of Second Amendment jurisprudence in the Ninth Circuit is any indicator, any decision which limits government power with the Second Amendment, will be appealed to an en banc panel. 

We should know the answer to this in the next few days. Beyond that, the decision will be made moot. The files in question have been circulating on the Internet for at least seven years. They are commonly available. The suggestion the Department of State has a viable interest to violate the First Amendment in controlling information about making small arms is absurd. 

Update: Defense Distributed has started releasing files on the Internet. No appeal to an en banc panel of the Ninth Circuit as of 1 May, 2021.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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