The Obama administration’s latest anti-gun salvo isn’t about reducing gun violence or stopping the export of dangerous weapons, it’s about pure retaliation against a non-profit that sued the government in federal court last month.
Defense Distributed, a pro-Second Amendment non-profit organization that provides blueprints, plans, and machinery to fabricate or finish firearm components, has been at war with the State Department for nearly two years.
According to a complaint it filed in federal court last month, the organization began to make its data, compiled entirely from publicly available information, available for free on the Internet in December of 2012. Just a few months later, in May of 2013, Defense Distributed received a letter from the State Department alleging that the group was illegally exporting technical data. The federal government then demanded, in contravention of long-standing policy dating back to 1984, that Defense Distributed submit its proposed speech to the federal government for pre-approval.
You read that right: the Obama administration demanded that a pro-Second Amendment non-profit submit its proposed speech, consisting of publicly available information, to the federal government for approval prior to publishing.
For nearly two years, Defense Distributed tried to comply with the State Department’s demands. The organization submitted its data for pre-approval. Then it waited. And waited. And waited. After asserting a lawless requirement that the government must pre-approve speech by Defense Distributed, the government refused to do anything but sit on its hands.
After nearly two years of trying in vain to comply with these new restrictions on free speech, Defense Distributed filed suit against the federal government on May 6, 2015. This is no rinky-dink lawsuit. According to court filings, the lead counsel for Defense Distributed is Alan Gura, the same attorney who successfully argued the landmark Heller case, in which the Supreme Court struck down as unconstitutional several gun bans in Washington, D.C. By all appearances, Defense Distributed is bringing out the big guns in its legal fight against the Obama administration’s gun speech gag rule.
On June 3, just four weeks after Defense Distributed filed its complaint in federal court, the State Department suddenly decided to propose a new rule giving it the authority to pre-approve speech related to publicly available firearm plans. The State Department’s play here is obvious: it hopes to promulgate a new rule making its previous anti-speech efforts superficially legal in order to short-circuit Defense Distributed’s court case. If that were to happen, the non-profit would then have to file a new and separate suit alleging the unconstitutionality of the new rule.
Only in Washington, D.C. in 2015 can you blatantly violate the law, get called to court for it, and then unilaterally and retroactively change the law you violated in order to avoid accountability.
Even worse, the federal government issued its proposed regulation before it ever even responded to Defense Distributed’s complaint. In fact, the government and all of the officials named in the suit have yet to file a single response to the complaint with the court. Why? Because they’re hoping to run out the clock on the case. If the State Department can promulgate its lawless prior restraint on free speech before a court can rule on the merits of Defense Distributed’s case, then the case is moot. And while a high-profile constitutional court case like this one can drag on for years, the State Department only needs to wait 60 days from the notice of its proposed rule before it can issue a final rule neutering Defense Distributed’s case against it.
At issue are two definitions under a 1976 law governing the import and export of defense articles. Long story short, the Obama administration proposes to throw aside more than three decades of federal precedent, going all the way back to 1984, in order to target Defense Distributed.
First, the administration proposes to change the definition of “technical data” in such a way that mere public discussion of technical gun data–virtually identical to what you can find on any gunowner forum on the Internet–will be treated as a violation of federal weapons export laws. Second, the administration proposes to treat software itself as a “defense article,” a move that would put open source computer code in the same category as nuclear warheads and intercontinental ballistic missiles.
The State Department’s proposed June 3 rule even includes a bogus “public domain” exception that would make George Orwell proud. In one section, the proposed rule states that any technical data in the public domain–such as information that can be found on a publicly available website or at a public library–is totally kosher:
§ 120.11 Public domain.
(a) Except as set forth in paragraph (b) of this section, unclassified information and software are in the public domain, and are thus not technical data or software subject to the ITAR, when they have been made available to the public without restrictions upon their further
Problem solved, right? Not so fast.
In the very next section, the federal government informs us that information can only be considered in the “public domain” if the federal government, via unelected State Department bureaucrats, has issued a prior ruling declaring the information to be in the public domain. In other words, even if speech is obviously in the public domain, it doesn’t count as being in the public domain unless the federal government says so:
(b) Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from: (1) The Directorate of Defense Trade Controls; (2) The Department of Defense’s Office of Security Review; (3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or (4) Another U.S. government official with authority to allow the technical data or software to be made available to the public.
This is not how representative government is supposed to work. Our system was not designed so that one branch of the federal government could lawlessly harass its citizens and then turn around and unilaterally enact new laws by administrative fiat when citizens finally decided to take their grievances to court. The system was not designed to give unelected government bureaucrats the right to promulgate new laws on the fly in order to avoid court sanctions. Nowhere in the Constitution is there a grant of authority to the federal government to demand pre-approval of political speech prior to its public dissemination.
If Congress wishes to pass a law banning fabrication of firearms by non-federal firearms licensees, and if the president wishes to sign that law, that is their prerogative. It is not, however, the prerogative of unaccountable bureaucrats to rewrite laws just so they can get around pesky court cases alleging government violation of those very laws.
The State Department did not respond to repeated requests for comment for this article. A court hearing on Defense Distributed’s request for a preliminary injunction against the government is set for July 6 in Austin, TX.