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When the DOJ & DOS fight over 3-D printable guns

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Posted on August 17 2018

 

 

See June 29th entry found here

See June 30th update entry found here

 

On July 31, 2018 a Federal Judge Granted a Temporary Restraining Order, (TRO)

 

 

On that particular twitter thread, I suggested that those in the Mainstream Media (MSM) should track down the Orginal Department of State Complaint and subsequent Appeal. Again all of that information is publicly available, you just need to know what you are looking for and where to go look for it.

 

The reason case no: WDTX Case No. 15-CV-372-RP is so significant is this particular case and the “official” government “position” and whiplash inducing about face told me, that once again the Trump Administration was up to their same old tricks. Throw out bodacious tweets, spew provable lies from the podium and hope you’ve distracted the MSM enough that they won’t actually look at what the administration is doing. 

The point of that orginal twitter thread was to point you in the direct of Case No: 15-cv-372-RP was that case was repeatedly referenced in the July 31st TRO. You can read the full 7 page TRO via this open source link from the Washington State Attorney General’s website, link found here.  

Judge Lasnik made the following determination and cited the 4 factors under “standard review” pointing to a January 2018, 9thCCOAs, Short v Brown, 893 F.3d 671, 675 (9th Cir. 2018), link found here.

The procedure for obtaining a temporary restraining order differs from that which is applicable in the preliminary injunction context, but the factors considered by the Court are the same. In order to obtain preliminary injunctive relief, plaintiffs must establish that:

(1) they are likely to succeed on the merits;

(2) they are likely to suffer irreparable harm in the absence of preliminary relief;

3) the balance of equities tips in their favor, and

(4) an injunction is in thepublic interest.

...Plaintiffs have also shown a likelihood of irreparable injury if the downloadable CAD files are posted tomorrow as promised....

 

 

In a clear and concise 7 page Order granting the Plaintiff’s request of a TRO, the Federal Judge explains the case law, the standard review process and the likelihood of the plaintiffs would incur “irreparable injury” by allowing unfettered, unchecked and zero disclosures of who downloaded the computer aided-design (CAD) file.

And right on time, Trump tweets this malarkey. Because he has done absolutely nothing to combat mass shootings at our children’s school, our places of worship, our local movie theaters, our outdoor music festivals. Sure he held a “listening” session for the victims of mass shootings, but he has also “hosted” the NRA to multiple private meetings and broken bread with the NRA Executives.

 

 

✔️Sidebar, I ran across a Trump tweet and I’ve taken the liberty of rewriting said vile tweet of the Orange Lunatic, enjoy

Lightweight (so called) president Trump, is a total flunky for the NRA/Russia and someone who had the NRA/Russians come to the KremlinAnnex “begging” for campaign (possibly legal defense donations or a slush fund) contributions not so long ago (and would do anything for Putin) is now in the Russia/NRA swamp ring fighting off the inevitable Impeachment, treason, sedition, conspiracy, obstruction, emoluments, etc indictments. Very disloyal to Ivanka & Melanie....I totally choked on Putin’s chicken and I liked it...

 

 

August 15, 2018 Department of Justice Brief:

Opposition to Motion for Preliminary Injunction (No. 2:18-cv-1115-RSL), the linguistic and legalese contortions are, well remarkable and not in a good or sane way. Link to the DOJ 3D gun brief can be found here. The DOJ Opposition reads in part:

 

“Among other statutes, the Undetectable Firearms Act prohibits the manufacture, possession, sale, import, or transfer of undetectable firearms. The Department of Justice, among other agencies, enforces that prohibition, and will continue to do so vigorously. Neither those enforcement efforts nor the prohibition itself is affected in any way by the actions challenged in this case,”

Plaintiffs’ allegations of harm are not reasonably attributable to the Department’s regulation of exports, but rather focus on the possibility that third parties will commit violations of the Undetectable Firearms Act or other relevant laws that are not at issue in this case.

Likewise, Plaintiffs have failed to demonstrate that the facts and law clearly favor their position with respect to the merits of their claims, or that it is in the public interest for the Court to second-guess the national security determinations of the Executive Branch.

Accordingly, Plaintiffs’ motion should be denied. 

 

The factual basis for the DOJ’s position is grounded in the: Undetectable Firearms Act (UFA) “already prohibits manufacture of undetectable guns and will not be affected by allowing the public to download blueprints, (CAD files)...” it should be pointed out that the UFA was adopted as public law on November 11, 1988 and became Public Law No 100-649.

You can read the history of HR 4445 via the Congress’ Legislation tracking system found here

You can read the 1988 UFA via this Government Publishing Office, link found here.

If I am a betting person, I’d say that the section of the law that discusses the Compounds and “new technology” are likely problematic for the Plaintiffs AND Defendants.

 

   

Moving along to the DOJ’s Opposition to Motion for Perliminary Injunction, the DOJ on pages 3 & 4 argues the role of the State Department and distinction of the following statutes: Arms Export Control Act (AECA) vs International Traffic in Arms Regulations (ITAR), and AECA is the United States Munitions List (USML). Page 3 lines 16-23 are relevant:

Category I of the USML includes all firearms up to .50 caliber, and all technical data directly related to such firearms. Id. § 121.1(I)(a), (i). Technical data is information that “is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles.

 

The DOJ goes on to use the Article III argument, stating the Plantiff’s lack “standing” and then point to Prudential Standing. Keep in mind that even if a party satisfies the “general standing” requirements the Court does have broad discretion, particularly if, “exceptionable circumstances exists”. The Courts have identified  rules as it relates to Prudential Standing. As in, if a plaintiff’s interest, (probable injury), said injury must come within the “zone of interest” and Courts have recognized “injury” is protected by the constitutional provision or statute. The plaintiffs are precluded from making “generalized grievances” even if said grievances are shared by the broader general public or group (of State Attorneys General) as in the distinction in this complaint. I could be wrong but I think the plaintiffs have a heavy lift in the ability of the AGs to represent the constitutional rights of third parties not before the court. Again that’s up to the Court to make that determination but I will acknowledge that the DOJ argument here is strong.

 

In simpler terms the DOJ’s brief actually states that the State Department has zero authority to “regulate” or “negotiate” 3-D print, click and shoot guns, that only the President can delegate that authority and only the DOJ has the authority, specifically domestic enforcement. Oddly this is somewhat true but as you can read on pages 3 & 4 (posted above) it is the Trump Administration once again wanting it both ways and the left & right hand are totally out of sync.

 

As in the DOJ filed this brief and Attorney General Sessions has planted his flag and is now on the record arguing that the 20+ State Attorneys General Complaint and subsequent Injunction should be dismissed and denied. That’s right AG Sessions wants the TRO lifted and is essentially lobbying a federal judge to dismiss this complaint and deny an injunction.

 

August 16, 2018 Attorney General Sessions

DOJ-OPA, Press Release addressing his Department’s 3D gun Brief. his statement reads in part:

"We will not stand for the evasion, especially the flouting, of current law and will take action to ensure that individuals who violate the law by making plastic firearms and rendering them undetectable, will be prosecuted to the fullest extent."

 

You can read Attorney General Sessions full statement, here. What I do find ironic is in the DOJ Brief they continue to hammer that power of the President, this action is not reviewable and have contorted themselves in such a manner, it’s also too painful to read their brief. Incidentally the DOJ makes reference to Congress and the 1988 UFA but at no time does the DOJ acknowledge or concede HR 2033.

Why does HR2033 matter?

1) Undetectable Firearms Modernization Act

2) Introduced in House on April 6, 2017, months before the State Department vs Defense Distribution June 28, 2018 settlement agreement.

HR2033

See legislation tracker, link found here, pdf of amendment found here. The proposed Amendment reads as follows:

This bill amends the Undetectable Firearms Act of 1988 to revise what are prohibited firearms to include any firearm: (1) that, after removal of all parts other than major components is not as detectable by walk-through metal detectors as the Security Exemplar (an object fabricated for the testing and calibration of metal detectors); or (2) any major component of which, if subjected to inspection by the types of detection devices commonly used at airports for security screening, would not generate an image that accurately depicts the shape of the component.

The bill modifies the definition of: (1) "major component" to include the barrel of a firearm only in the case of a rifle or shotgun, and (2) "Security Exemplar" to repeal the requirement that it be fabricated within 12 months after enactment of such Act. (emphasis added)

The bill exempts from undetectable firearms provisions: (1) a prototype firearm for detectability testing; (2) any firearm received by, in the possession of, or under the control of the United States; or (3) the manufacture, importation, possession, transfer, receipt, shipment, or delivery of a firearm by a licensed manufacturer or licensed importer pursuant to an existing contract with the United States. (This replaces the exemption of any firearm that has been certified by the Department of Defense or the Central Intelligence Agency as necessary for military or intelligence applications or that is manufactured and sold exclusively to U.S. military or intelligence agencies.)

 

 In closing the hypocrisy and nonsensical about face by the Trump Administration on 3D Guns literally makes zero sense. On one hand AG Sessions & president Trump hammer the “I am the Law and Order” yet in legal filings this administration is in fact advocating for more guns, less regulations and reversing previous administration position, because they can. The notion that anyone, regardless of age, criminal history can,  with a decent internet connection, a 3D printer and/or printer that is a Milner can literally point, down load, click, print and a few hours later has a gun that lacks a serial number, well that makes zero sense.

Granted the core of this argument is whataboutism but the issue here is the real and (potential) fatal injury. I don’t know why the Trump Administration would reverse course. It defies common sense, but then again I suppose that’s part of Trump’s MO. -Spicy Out

 

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