The argument will look familiar. The States simply didn’t have standing to bring the challenge. They could not describe a legally cognizable harm. This harm could not be traced to the outcome of DD v. U.S. Dept. of State, and, finally, there is no relief the court could give to possibly redress the harm.
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A funny thing about this phase of the appeal: Should the states succeed in dismissing the case as moot, our original publication license from the State Department reactivates. As does the modification to the ITAR that allows anyone to share 3D gun data online, unrestricted.
Why would the blue states risk this outcome?
1. They’re hoping no one notices them backing out of the fight
2. They’re more afraid of appellate review in this case than in stopping the dissemination of 3D guns files.
Why would DD fight this motion to dismiss?
1. There is a high likelihood the states will simply sue again when it’s politically convenient. We should definitively remove the jurisdiction question and prevent the states’ game from escaping judicial review.
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Yesterday the Fifth Circuit Court of Appeals heard oral arguments in Defense Distributed v. Grewal, No. 19-50723. You may listen to the recording here.
This morning the Department of Justice filed a notice of appeal with the Ninth Circuit in the most recent ITAR case AG Ferguson and company brought in Washington (State of Washington, et al. v. U.S. Dep’t. of State (W.D. WA), No. 2:20-cv-00111-RAJ). You can review this document below.
Not looking great now for the blue state paradisiacs. Unable to meet their basic obligations as states amid the viral panic, their dream of policing the Internet nationwide is increasingly shown for what it is.
In Defense Distributed v. Grewal, No. 1:18-cv-00637-RP (W.D. Tex.) and No. 19-50723 (5th Cir.), the Fifth Circuit has scheduled oral arguments for May 4th. AG Grewal attempted to delay the date with a vague appeal to legal emergencies related to Covid (I have written about this tactic elsewhere), but his request was denied.
The AG of Pennsylvania has presented a bold public stand against DEFCAD’s recent file publication. But in his case against us, Commonwealth of Pennsylvania v. Defense Distributed, No. 2:18-cv-03208-PD (E.D. PA), he has asked for an indefinite delay of proceedings.
Thank you for making DEFCAD’s March relaunch such a success. We’ve signed up thousands of new members and transferred even more files.
It’s a good time to launch a digital product in this country.
You may have seen rumblings online from the nation’s many attorneys general that the operation of our site is somehow illegal. Rest assured that this is rank propaganda meant to produce animal obedience and dissuade the ignorant from pursuing the files.
Publishing the files this way was always an option. We fought it for five years simply on principle. Our patient resistance to this form of distribution was mistaken by Ferguson and his blue state coalition. They developed an entire set of policies upon the belief they had discovered a new form of gun control.
But every US person has the unquestioned right to receive and transmit the files at DEFCAD, including over the Internet. These same attorneys, our nation’s best I am told, have confessed as much in court.
I bring you good tidings. As you head into your weekend lockdowns, I’d like to mark a special occasion.
DD resumed shipments of the Ghost Gunner 3 this week. Global supply lines would appear to be stabilizing since February, and DD doesn’t expect further manufacturing interruptions or delays.
And a special note on Contract Y from the Defense (Contributed) days of 2018. I can reveal that contract was for the technology necessary to run an ITAR-compliant file-sharing service. I can reveal this because the contract is now fulfilled, and DEFCAD, the world’s largest firearms repository, has announced its reopening.
March 27 is Goliad day in Texas.
Because we borrow so much from the spirit of those 400 martyred, we thought we’d mark the occasion.
Though it hasn’t been covered much in the media, Judge Jones in Seattle issued an injunction on Friday evening, March 6th, forbidding the State Department from releasing its controls on technical data related to small arms. This order preserves the status quo we have come to know since 2013, which permits no legal way of publishing or promoting the open source development of small arms on the Internet.
The order is another in a string of obvious violations of the freedom of speech and the right to keep and bear arms. Like judge Lasnik, this judge performed no First Amendment analysis.
Until further notice, or a successful appeal at the Ninth Circuit, Washington AG Bob Ferguson writes the nation’s export control laws.
On our other legal fronts, we concluded our briefing in our Third Circuit appeal v. Grewal at the very end of February. You can find that brief here.
Last week we concluded Defense Distributed II‘s briefing in the Fifth Circuit. As a reminder, this 1983 action is the original response to out of state actors like AG Grewal attempting to stop our activities in Texas from the comfort of their own jurisdictions. Texas law would not seem to consider the threats of out of state AG’s as sufficient “minimum contacts” to sue them from our home state.
So we intend to change that. The final appellate brief in DDII is below:
In DD v. Grewal, back up in the Third Circuit, AG Grewal has filed his merits reply. It repeats what he’s been briefing for the last year ad nauseam, but he at last goes out of his way to stress CAD data is NOT protected by the First Amendment.
This is something we’d like the Third Circuit to address, so Grewal is finally playing into our hands.
This week DD filed a supplemental brief about appellate jurisdiction in the Third Circuit so that we may finally confront Grewal over his obviously illegal New Jersey speech crime. That brief is below.
Now Delaware has a house bill with largely the same language, making file-sharing of any technical data related to guns a felony if one of their beaten men so much as stumbles upon your website.
No doubt you’ve seen the reports that Washington AG Ferguson has led another charge at the feds for their conclusion of the arms export control reform initiative. They haven’t just yet gotten judge Lasnik assigned to the new case, but they’re trying their best.
We’ll see the states again attempt to get an injunction or two. Somehow they think they have the standing to block the final rules under the APA. Their complaint relies exclusively on misstatements of the final Commerce Department rules and how they were developed. This after spending the last year hijacking the rule-making process in order to write in controls of their own design. Commerce spends 10 pages in their supplementary materials explaining how they rewrote their controls for Congressional and state Democrats. And here’s Senator Menendez praising the State Department for illegally accepting his and the Bradykampf’s edits in 2019.
State Democrats appealing to judicial Democrats to undo the work of federal administrative Democrats, designed by private sector Democrats, working on behalf of Congressional Democrats.
Watch what happens in about 30 days.
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Though the culture of 3D gun design and online distribution has its widest reach yet, DD spent the last year (like many before it) largely sidelined from this activity thanks to State of Washington v. Dep’t of State et al., No. C18-1115-RSL (W.D. Wash). The order there wasn’t against DD, but against the State Department, and it technically made all online gun file sharing illegal. Luckily no one but DD abided by this judicial order. And no state authority attempted to stop any of the other active players.
This week DD filed a notice of appeal in this Washington case, which will take it before the Ninth Circuit. We’ve also found our appeal against the clownish Gurbir Grewal (Defense Distributed et al., v. Grewal, No. 3:19-cv-04753-AET-TJB (D.N.J.) and No. 19-1729 (3rd Cir.)) recently rescued by the Third Circuit.
You may notice in the Washington case that the State Department did not appeal the judge’s summary judgement ruling. This faithless decision is rooted in the expectation that the upcoming change in the export control rules moots the case and their involvement.
2020 will be full of surprises.
Come see Ghost Gunner 3 at this year’s SHOT Show in Las Vegas. We’ll be at booth #2960.