‘Nobody should hang their hat on starting Second Amendment litigation these days. It’s a losing proposition…’
(Ben Sellers, Liberty Headlines) The recent settlement of a case involving the distribution of materials for at-home gun-making has opened the floodgates to questions about the Trump administration’s positions on gun-rights.
The Justice Department reached an agreement last week with the Second Amendment Foundation and Defense Distributed, which filed suit against the State Department in 2015 to challenge government claims that the instructions they provided for creating a plastic gun using a 3-D printer violated federal law.
In 2013, the John Kerry-led State Department sent a letter to Defense Distributed owner Cody Wilson that said the company’s online materials violated the International Traffic in Arms Regulations and threatened legal action.
In a release on its website, Wilson’s co-plaintiff, the Second Amendment Foundation, described ITAR as “a Cold War-era law intended to control exports of military articles.”
Wilson told Liberty Headlines that the settlement was a major victory for both First- and Second-Amendment rights.
“This is a significant thing for the history of the Second Amendment and for the present of American gun culture,” he said. “It affects free and clear access [to online information about firearms]. That’s going to be an essential thing as we go forward.”
SAF also said in its release that the settlement was an important step in having the government recognize that many non-automatic or semi-automatic firearms are not “inherently military.”
“Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby,” wrote Alan Gottlieb, SAF founder and executive vice president.
Under its terms, the technical information provided by the plaintiffs will now be regulated by the Commerce Department, which does not impose prior restraint on public speech, Gottlieb said.
After five years, Wilson said, the files for its 3-D models are back online and available to the public for download at defcad.com.
As part of the settlement, the government also will pay back $39,000 in legal and administrative fees, including about $10,000 in State Department registration fees.
Wilson said it covers only a small fraction of the nearly half a million dollars he spent in his defense (about a quarter of which was paid by SAF).
“It’s rare enough just to get dollar 1 from the feds in an action like this, so I can’t really complain,” he said.
Despite the pyrrhic victory for Wilson, Second Amendment advocates continue to puzzle over mixed signals from Jeff Sessions’s Justice Department.
Although Wilson said he hoped the Trump administration might signal a more sympathetic position on gun-rights, he saw no change in how the federal government litigated the case.
The settlement, he said, had more to do with administrative issues than philosophical ones.
“It’s going to become a convenient way to read what happened here—Trump becomes president and we won,” Wilson said. “… That’s all technically true, but I don’t think it’s related.”
Sessions has chosen to press forward on several other appeals in cases initiated by his Obama-era predecessors, Eric Holder and Loretta Lynch.
Among these are decisions involving the rights of citizens with previous nonviolent felony convictions to have their gun-ownership rights restored.
Larry Hatfield, Rickey Kanter and Jorge Medina all face cases where, despite having long ago paid for crimes such as making false statements on a bank loan and mail-order fraud, they continue to be denied gun rights, even for self-defense and hunting.
Other cases being litigated include one involving the sale of a handgun by a licensed Texas dealer to an out-of-state resident and another to determine whether a gun stored in the glove compartment of a locked vehicle violated Massachusetts law.
The cases have met with mixed success in the lower courts, but each could prove an early test of the Supreme Court’s conservative leanings in its next session, following the retirement of “swing” Justice Anthony Kennedy.
The court averted one recent test case by declining to review the decision in Sessions v. Binderup, which ruled that serious misdemeanor crimes in Pennsylvania were not grounds for depriving gun rights.
Despite a few major victories the Obama era—including 2008’s District of Columbia v. Heller, which challenged a D.C. law banning the possession of firearms, and 2010’s McDonald v. Chicago, determining that the Heller decision applied also to states—few see a definitive resolution to gun-rights issues coming in the pipeline anytime soon.
Wilson said part of him had hoped to see his case make it to the Supreme Court (they ruled against him on one injunction), and he was cautiously optimistic about the changes that Brett Kavanaugh’s appointment (if approved by the Senate) might bring.
However, he added, “Nobody should hang their hat on starting Second Amendment litigation these days. It’s a losing proposition.”