The effort by a collection of 23 Democratic state attorneys general to outlaw the publication of gun blueprints took a setback on Tuesday.
A panel of 9th Circuit judges ruled the AGs could not block the State Department from entering into a deal with a gun-rights group to allow them to post the files. The panel voted 2-1 that the lower court didn’t have the power to block the agreement. It reversed that court’s decision and put the agreement back into place.
“The district court erred in reviewing the DOS and Commerce Final Rules, and its injunction is therefore contrary to law,” the judges wrote.
The Second Amendment Foundation, who entered into the agreement with the State Department, celebrated the ruling. Alan Gottlieb, the group’s foundation, said he was glad to see the appeals court act.
“It’s about time,” Gottlieb told The Reload. “The lower court never should have granted the AGs their request to enjoin the State Department from honoring their agreements with Second Amendment Foundation and Defense Distributed.”
The decision complicates the effort by the AGs to censor the gun schematics. The blueprints have been a source of controversy since May 2013 when the first widely publicized 3D-printed gun concept was posted online. The State Department then tried to outlaw publication of the files by claiming they violated an arms-export law.
The Second Amendment Foundation, alongside the company that pioneered the 3D-printed gun designs, filed a First and Second Amendment suit against the State Department. The agency eventually came to an agreement allowing the files to be posted online. That’s when the Democratic AGs sued to block the department from enforcing that agreement.
Gottlieb said the AGs constructed the case in a way that prevented the gun-rights group from getting involved.
“Of course, they didn’t name us in the suit because they didn’t want us to be able to raise First Amendment issues and they knew they’d lose on that,” he said. “So, they manipulated the courts in a way that we couldn’t really respond but they could go after the federal government.”
He said he always believed the move was a long shot.
“Ultimately, we knew they’d fail,” Gottlieb said. “And they did.”
Despite opposition from the Justice Department, a lower court judge sided with the AGs. Now that the lower court’s opinion has been overturned, the initial settlement will go back into effect.
“The legal effect of the circuit court’s decision is that 3D gun files can be ‘undesignated’ (to use the court’s inelegant term) from the U.S. Munitions List and their regulation transferred to the Department of Commerce without judicial oversight,” Gabriel Malor, an appellate litigator who has watched the case, told The Reload. “That would in effect allow the 3D gun files to be published online, as the Trump administration apparently intended back in 2018.”
But Malor said the Biden administration could make the win for gun-rights advocates short-lived by undoing the deal.
“The practical effect will likely be more limited because the Biden administration has indicated that it intends to introduce forthcoming regulations to cover these weapons,” he said.