Appeals Court Says Prior Restraint Is Perfectly Fine, Refuses To Rehear 3D-Printed Guns Case
from the nation-is-too-damn-insecure dept
It looks as though the Supreme Court may have to step in and settle a particularly thorny question involving the First Amendment, Second Amendment, national security interests, and 3D-printed weapons. Cody Wilson and his company, Defense Distributed, sued the State Department over its demands he cease distributing instructions for the creation of weapons and weapons parts.
The State Department came along too late to make much of a difference. It claimed Wilson's instructions violated international arms distribution laws, but by the time it noticed what Defense Distributed was doing, the instructions were all over the web. They still are, and no amount of litigation or government orders is going to change that.
What Defense Distributed is doing is perfectly legal in the United States. The State Department says it's illegal to put these instructions in the hands of foreign enemies. Since it can't control internet traffic, it's decided to take down the publisher.
That's the First Amendment implication, which can't really be separated from Second Amendment concerns considering the legality of distributing these instructions domestically. Last September, the Fifth Circuit Appeals Court found [PDF] in favor of the government and its national security concerns.
Because both public interests asserted here are strong, we find it most helpful to focus on the balance of harm requirement, which looks to the relative harm to both parties if the injunction is granted or denied. If we affirm the district court’s denial, but Plaintiffs-Appellants eventually prove they are entitled to a permanent injunction, their constitutional rights will have been violated in the meantime, but only temporarily. Plaintiffs-Appellants argue that this result is absurd because the Published Files are already available through third party websites such as the Pirate Bay, but granting the preliminary injunction sought by Plaintiffs-Appellants would allow them to share online not only the Published Files but also any new, previously unpublished files. That leads us to the other side of the balance of harm inquiry.
If we reverse the district court’s denial and instead grant the preliminary injunction, Plaintiffs-Appellants would legally be permitted to post on the internet as many 3D printing and CNC milling files as they wish, including the Ghost Gunner CNC milling files for producing AR-15 lower receivers and additional 3D-printed weapons and weapon parts. Even if Plaintiffs-Appellants eventually fail to obtain a permanent injunction, the files posted in the interim would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide. That is not a far-fetched hypothetical: the initial Published Files are still available on such sites, and Plaintiffs-Appellants have indicated they will share additional, previously unreleased files as soon as they are permitted to do so. Because those files would never go away, a preliminary injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest would be harmed forever. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.
A lengthy dissent challenged the First Amendment implications of this decision, which brought prior restraint into play by forbidding Defense Distributed from posting new instructions, along with further distribution of plans it had already released. But the majority didn't find much it liked in the dissent -- at least not when weighing it against the government's national security interests.
The dissent argues that we “should have held that the domestic internet publication” of the technical data at issue presents no “immediate danger to national security, especially in light of the fact that many of these files are now widely available over the Internet and that the world is awash with small arms.” We note the following:
(1) If Plaintiffs-Appellants’ publication on the Internet were truly domestic, i.e., limited to United States citizens, there is no question that it would be legal. The question presented in this case is whether Plaintiffs-Appellants may place such files on the Internet for unrestricted worldwide download.
(2) This case does not concern only the files that Plaintiffs-Appellants previously made available online. Plaintiffs-Appellants have indicated their intent to make many more files available for download as soon as they are legally allowed to do so. Thus, the bulk of the potential harm has not yet been done but could be if Plaintiffs-Appellants obtain a preliminary injunction that is later determined to have been erroneously granted.
(3) The world may be “awash with small arms,” but it is not yet awash with the ability to make untraceable firearms anywhere with virtually no technical skill. For these reasons and the ones we set out above, we remain convinced that the potential permanent harm to the State Department’s strong national security interest outweighs the potential temporary harm to Plaintiffs-Appellants’ strong First Amendment interest.
The majority also pointed out the government can violate the First Amendment in the interest of national security, and that this court in particular seemed inclined to let it.
Defense Distributed asked for an en banc rehearing. That has been denied [PDF]. This denial gives the dissent the chance to lead off (so to speak), and the first thing it does is point out the obvious First Amendment violations.
The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint. [...] First, the panel opinion fails to review the likelihood of success on the merits—which ten of our sister circuits agree is an essential inquiry in a First Amendment preliminary injunction case. Second, the panel opinion accepts that a mere assertion of a national security interest is a sufficient justification for a prior restraint on speech. Third, the panel opinion conducts a fundamentally flawed analysis of irreparable harm.
As the dissent points out, the majority chose to deploy prior restraint based on little more than the government's vague claims of insecurity.
The Government contends that the gun designs at issue could potentially threaten national security. However, this speculation falls far short of the required showing under Bernard and Nebraska Press, showing neither the immediacy of the danger nor the necessity of the prior restraint. Allowing such a paltry assertion of national security interests to justify a grave deprivation of First Amendment rights treats the words “national security” as a magic spell, the mere invocation of which makes free speech instantly disappear.
But this is exactly what the government does: make rights disappear with its "magic spell." And the courts continue to let it do this. In this case alone, the invocation of "national security" resulted in three consecutive decisions (district court and twice at the appeals court) in favor of prior restraint.
If the Supreme Court decides to review this, there's little in its track record suggesting it will do otherwise. But there's zero chance the government will let this go unregulated, even if the Supreme Court grants Defense Distributed a permanent injunction against the State Department. The government needs to have this threat of prosecution to hang over the head of Defense Distributed, as well as others with similar interests.
If this appears to operate in an area existing legislation can't touch, additional legislation will be introduced to address it. That may result in the government pressing ISPs into service to regulate internet traffic -- spying on users to catch them in the act of distributing illegal gun manufacturing plans. We'll have a Border Patrol but for the internet, maintained by private companies but overseen by the government.
It's not that there aren't potentially-serious repercussions from the distribution of 3D-printed gun plans. There's lots to be concerned about, but the concerns aren't new ones. Untraceable guns end up in the hands of people who aren't supposed to have them all the time. Printing one at home isn't a feasible reality for most people, especially those whose income and expertise are limited, which is most of the world.
Rights aren't sold separately. They're a bundle. The multiple opinions in this case have mostly ignored the Second Amendment implications in favor of examining the First. But those should be considered as well. If it's legal to manufacture these parts in the US, the State Department's order overreaches. Its concerns about worldwide distribution may be valid, but it's impossible to prevent this distribution without preventing Americans from doing something their government has told them it's ok to do.
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Filed Under: 1st amendment, 2nd amendment, 3d printed guns, 3d printing, cody wilson, free speech, national security, state department, weapons
Companies: defense distributed
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Close one
It's a good thing absolutely no-one else on the planet is capable of making those sorts of designs, and that the order was able to recover every single instance of the design previously released, otherwise ordering a company to stop making said designs available would seem to be a perfect example of shutting the barn doors after the horses have already escaped in addition to the whole 'violation of free speech' issue.
Chalk this up as another in a long line of cases where the magic words 'National Security' have saved the planet from utter destruction yet again.
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Well, if you're actually behaving like a weapon designer, you'll char your bench-vice.
I take that demolitions scientists only stereotypically have names like Left Ear or Cyclops or Two-fingers.
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So yes, it your tried to just copy a metal gun and print it in plastic your going to have bad day. If on the other hand your only making the AR lower and then ordering the rest online.... that is different.
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It seems as though selling 80% lower AR-15 receivers may no longer be legal (I haven't watched closely enough to say definitively though). That only affects people that want a fully functional replica of an existing assault rifle design; much simpler designs are correspondingly much easier to produce.
There are cheaper ways to improvise guns than to buy a 3D printer or CNC machine. Slam fire guns, zip guns, muzzle loaders all come to mind. Many can be made legally and even transferred later. There is a lot of gray area surrounding these devices and legality varies by location.
Luckily most of us that are smart enough to build guns from scratch are also smart enough to use them responsibly.
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Re: Re: Close one
Every generation has a similar scare. Go back 40 years and the panic was about books like The Anarchist Cookbook making the rounds.
Of course any 12 year old wanting to make their own explosives wouldn't need it. They'd do far better just looking in the encyclopedia and other books in their school library. I'm missing a few fingertips to prove it.
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PGP case all over again
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Americans no longer have the freedom to speak with foreigners? That must be some lesser-known subclause of the First Amendment, like the one that limits allowed speech to that of "no immediate danger".
I suppose if using the freedoms of the Second Amendment require government permission, there's no reason the First should be different.
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Re: Re: PGP case all over again
an essay https://philzimmermann.com/EN/essays/BookPreface.html
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Re: PGP case all over again
The government is still determined to get that one overturned (and I doubt they will ever give up). A little more court packing and they should be good to go.
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There are lots of people, like yourself, that oppose freedom speech, except when it comes to their own.
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Believing in freedom of speech does not require me to agree with him. And if you look at this and think, "Oh, distributing computer code to 3-d print an illegal firearm? That's a cut and dried first amendment case, there's nothing complex or nuanced about it" then I honestly don't think we're sharing enough basic facts to have a conversation.
But I'm sure it's easier to attack my belief in free speech than to make an actual argument.
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Generally you have to go to a store and get background check. Unless you just buy from another person. Then you start looking at automatics and such, there is a crazy bunch of "taxes" that you can pay depending on what you want. Full auto, silencer, and so on? Well pay your $200 tax and you can then buy one. This by the way is a tax NOT a permit. No one can say no, so long as clean criminal history and you pay the tax you get the gun.
Then I realize, muzzle loaders are not even regulated. Sure, some people might just shrug that off. You only get one shot after all right? Well, not so fast, that also covers muzzle loading revolvers. They can be shipped right to your door, no questions asked, no permits or background checks.
You seriously going to try and tell me my .44 revolver isn't as dangerous as a modern gun? It might be the same model used in the civil war but I get better groupings with it then with the several different glocks I have tried. Also for those thinking "Oh, sure but you get 6 shots and then takes forever to reload." Well yes... Unless I carry several cinders that can be dropped out and changed in a few seconds.
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This is not entirely correct. NFA weapons may be subject to local restrictions.
A fully automatic weapon may only be transferred (sold) if it was made prior to 1986. As a result, they are insanely expensive.
In any case, the wait for an ATF tax stamp can be six to ten months.
So, no, it really isn't as easy as you make it sound.
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Although Cody Wilson and his company Distributed Defense are located in the 2nd-Amendment-friendly state of Texas, where "Old West" black-powder revolvers are not legally considered firearms, much of the rest of the country is far more gun-restrictive, even zealously so.
This is why most private delivery companies like FedEx and UPS refused to ship their "Ghost Gunner" CNC machine, fearful that it might get them in serious legal trouble in vehemently anti-gun states such as California and elsewhere.
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Although Cody Wilson and his company Distributed Defense are located in the 2nd-Amendment-friendly state of Texas, where "Old West" black-powder revolvers are not legally considered firearms, much of the rest of the country is far more gun-restrictive, even zealously so.
Wait, what? If they're not considered firearms, what are they classified as?
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26 U.S. Code § 5845 - Definitions:
For the purpose of this chapter -
(a) Firearm
"The term "firearm" shall not include an antique firearm ... "
(g) Antique firearm
The term "antique firearm" means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
from https://www.law.cornell.edu/uscode/text/26/5845
Footnote -- this also leads to some interesting legal theories, such as whether the prohibition of a convicted felon from possessing a "firearm" would apply to a modern replica of a black powder revolver, which is ostensibly not classified as a firearm in the eyes of the law. As a law only ever means whatever a judge says it means, perhaps it's not surprising that no convicted felon has yet volunteered to step forward and test this legal theory.
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Antiques
Here in Switzerland its "single-shot muzzle loaders manufactured before 1871".
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You may need to check your facts...
"Full auto, silencer, and so on? Well pay your $200 tax and you can then buy one. This by the way is a tax NOT a permit. No one can say no, so long as clean criminal history and you pay the tax you get the gun."
1.You need to be eligible to possess firearms in general.
2.You must live in a state where NFA items are permitted and machine guns, specifically, are legal to possess.
3.The machine gun you wish to acquire must have been manufactured on or before May 19, 1986. That is the cutoff date for entries to be made in the NFRTR (National Firearms Registration and Transfer Record), the registry of all NFA items in the United States including machine guns.
4.You must locate a Class III dealer (FFL01+SOT) that sells or can transfer in the machine gun you wish to acquire in your state of residence.
5.You must purchase the machine gun upfront prior to transfer and have it shipped to your Class III dealer. For a full-auto M16, this will be anywhere from $12,000 and up. Typical prices for an M16 hover around $14,000 to $16,000.
6.Once purchased and with your dealer, the dealer will fill out the Form 4 application on your behalf to submission to the BATFE and collect your $200 NFA transfer stamp tax.
7.The application will be submitted. Now you wait 8+ months for the full FBI background check and BATFE processing to complete.
8.Once the Form 4 is processed, it will be returned to the dealer along with the tax stamp which is part of your paperwork. You can then take possession of your military grade fully automatic firearm and take it home.
9.The tax stamp must be kept with the firearm it belongs to at all times! The tax stamp is your only affirmative defense to prove you are not in possession of an illegal machine gun. The tax stamp is proof you paid the transfer tax and legally transferred the machine gun. Ranges that allow Class III will want to see the stamp. If you get pulled over and the gun is discovered/inspected, law enforcement will definitely want to see it too. You may be required to present the firearm for inspection on demand by the BATFE.
10.You may not transport the fully automatic firearm across state lines for any purpose without prior consent of the Federal government. You must request this in advance and provide details on where the firearm is going, when you are leaving and when it will return to its registered location of residence.
11.You cannot leave the presence of your fully automatic firearm. If someone else is shooting it, you must be with it, legally speaking. The one exception to this is if you have formed a legal trust for the purpose of possessing the firearm, in which case all beneficiaries of the trust (usually family or employees) may have access to the firearm.
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It really makes me sad. I think in a vacuum, I'd be much more on the side of gun rights than regulation. But when the loudest pro gun voices are Wayne Lapierre and Cody Wilson, well, I know if I'm going to take a stand, it's not going to be with them.
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Which is a shame, because this is a time we NEED the NRA of the 60s and 70s.
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http://godfatherpolitics.com/the-nra-thinks-rand-paul-is-too-strong-on-gun-rights/
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Perhaps. However I would argue that they have shifted so far to the Right because of the constant calls for gun control.
Both sides have their extremists.
It seems to me the Left waits for some catastrophic shooting, and tries to use that to pass some emotional knee jerk reactionary law. Take the Ohio stabbings; immediately afterwards, Liberal governors and senators are calling for gun control. Calling for gun control after a stabbing? Seems to me we should be calling for a ban on kitchen knives? I find it ironic that the only "gun violence victim" was the person doing the stabbing.
Then you have the Right. They are equally guilty by reacting in the extreme opposite direction every time they are confronted with new gun legislation. ANY legislation at all in their eyes is bad and they will spend whatever resources they need to in order to defeat it.
I think it's going to be a long long time, if ever, before the Left and Right come together to create logical gun control laws, especially after the new SCOTUS appointments.
http://dailycaller.com/2016/11/28/the-only-confirmed-victim-of-gun-violence-at-ohio-sta te-is-a-suspected-terrorist/
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You could argue that we need to address the culture itself, not the tools of the culture. As a "Centrist", I would argue you need to address both.
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Rampage killings
The rampage incidents are not a problem regarding gun control. Rampage killers extensively pre-plan and typically overprepare. This is to say if you criminalize firearms, they'll just get more creative, and find another engine of destruction perhaps, say, with fertilizer bombs or siphoned gasoline.
(In fact, some do. They're called arsonists, and they get away more.)
It's peculiar to me how rampage shooters are the flagship of anti-gun activists. The primary risk of gun ownership is suicide. Suicide is typically not planned, but spontaneous, and a handgun (less so, long arms) provide that easy vector. So if you have a suicide risk in your family, it's better not to have a firearm. About 2/3 of gun deaths in the US are suicides.
But anti-gun positions are seldom about the protection of life. US drone strike programs kill more than all the guns in the United States. Drone Strikes are rampage killings, wiping out chunks of village at a time, including women and children, bloodily massacred in the worst possible way.
Only they don't appear in mainstream media. Records of them are kept secret or quickly purged. We call those civilians bugsplats and militants (or the kids fun sized terrorists), and we let them go on in the shadows.
Our newly elected President is looking to expand our CIA drone-strike programs, incidentally, so that he can use them anywhere, not just in designated War on Terror hotzones.
So really, it's about keeping the ugliness out of our newsfeeds. So long as kids are dying offscreen, it's okay. So long as they're dying of diabetes or depression, piecemeal, that's the way we like it. Those fatsos were too weak to live, anyway.
The truth of the matter also is that we suck at deciding what is a danger, whether it's bicycles causing lesbianism or AD&D and Rock-&-Roll as a gateway to Satanism, we're ever eager to decide one thing or another is endangering us. Whether its GMOs or Vaccine preservatives, we're going to freak out.
And in that light, our outrage about guns and their link to rampage killings is yet another moral panic. You might as well also be protesting pants, as they, too correlate.
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Re: Rampage killings
The trouble with guns is not that they're inherently dangerous and should be treated with care — so should razors. The trouble with guns, as some wise person once commented (on TD, if memory serves) is that they're the Great Equalizer. You could be a paraplegic, but a paraplegic with a gun is best addressed as "Sir," and obeyed till you can get the gun off him. Little old ladies are vulnerable as a rule but a little old lady with a gun is to be feared.
Hold that thought.
So... the empowerment provided by possession of a dangerous weapon is the problem when the possessor is, not to put too fine a point on it, either criminal or nuts. Is it reasonable to give enhanced killing power to criminals and nutters? The NRA and gun lovers think it is. I say no. Let responsible people have guns by all means, but not crazies or criminals. Is that fair?
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You got it wrong. "Liberals" are not calling for "control". Either they're liberal, or they're calling for control, but the two are mutually exclusive.
As it happens "Liberal" means "standing in for liberty" which means less control and less regulation.
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Regulations which serve to prevent A from impeding the liberty of B, more than they serve to impede the liberty of A, can be perfectly consistent with liberalism.
(Also, the word doesn't necessarily mean that anyway. If you look at usage of the adjective "liberal" outside of a political context - which are, admittely, mostly a little archaic nowadays - you run into things like "she spread her toast liberally with butter" or "he poured out the drinks with a liberal hand", where the apparent meaning is approximately the opposite of "stingy".
It's not universal, but I find that if you look at the political factions with "liberal" vs. "stingy" in mind, the positions each side takes tend to fit surprisingly well...)
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Um, no they're not. And have you heard some of the loudest anti-gun voices? And you're taking a stand with them? Wow. Just wow.
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And actually, no. I can honestly say that - as someone interested in the issue, I could not name one major voice on the gun control side of the issue. Who would you consider the "loudest voices"? And what have they said as insane as Lapierre's paranoid rants in *2016* that, trust him, Obama was just waiting for the right minute to finally come and take away your guns?
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It's horrible isn't it? Between post mass shooting knee jerk legislation from the Left, and the protectionist far Right positions, we may never get REAL gun control legislation on the table.
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So? F*ck the constitution. Liberty is dangerous!
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The Second Amendment states: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Basically, the well regulated militia was part of the deal, the idea being that any attempt to overthrow the revolution could be swiftly countered by them. It was never intended to be a free-for-all yeehaw! thing, it was intended to be a "To arms! The British are upon us!" thing.
So militias are supposed to be regulated. Gun control used to be common and there was little whingeing about it then, if memory serves.
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Sounds like you don't know what the words "militia" and "regulated" mean. A militia is not an army. It is not the National Guard, which is one of the Federal Government's several standing armies (there is precedent that the Federal Government can overrule state governments in controlling their National Guard). A militia, as the term was in common usage when that line was written, consisted of every able bodied man of fighting age. As a matter of fact, not long before that line was written, King George's army had attempted to disarm American militias to make it easier to "tax" (rob) the people. This resulted in a little revolution that you may have heard about.
"Regulated", at the time, meant "trained", not "controlled" as it currently does. So in modern English, it means "Since the security of a free nation requires that everyone be armed and well trained, no one shall attempt to limit or regulate weapons".
There is also the matter that the portion before the comma is an explanation of the reason for the portion after, not a condition.
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rights
You know what? Just forget you have any rights whatsoever, OK?
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Re: rights
Like I have repeated many times, that Americans are in love with corruption.
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Re: rights
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Hint: A person can make their own gun powder and casings too, they don't have to go and buy it.
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"Guns don't kill people. Bullets kill people. But only on special occasions. For everyday people-killing, we depend on the ever-reliable drunk drivers and abortion mills."
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Even more dangerous that drunk driving is phone driving.
Oh, and don't forget about junk food.
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Missing basic facts
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Re: Missing basic facts
The ATF decided that "build parties" were illegal, and then proceeded to raid the machine shops that were organizing these events that taught people how to machine an aluminum billet into a (non-serialed, hence untraceable) rifle receiver.
That law enforcement action by the ATF is what spawned the Ghost Gunner, a low-cost preconfigured CNC machine that enabled people to do in the privacy of their homes the very thing that the ATF said they couldn't legally do in a public space.
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Re: Re: Missing basic facts
Sounds like sex.
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This is the same as not having these Constitutional rights in the first place. If the Government can use the "national security" excuse to trample such basic rights then just put the Constitution in the shredder and stop pretending to care. This is what a totalitarian state is like. If you are planning to go down that route stop criticizing Venezuela, China, North Korea and so on.
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"This is a weapon"
One can buy what's known as an "85% kit" which consists of a chunk of aluminum that has been forged and machined to resemble an AR lower, but isn't. The user must do some work to translate this unregulated bookstop to a "firearm". Said firearm, of course, still needs a buttload of parts.
Of course I could lay one out with SolidWorks and publish that. And so could each of you. Do it quietly. Well, not too quietly for me, now.
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