In last-minute lawsuit, states say 3-D printable guns pose national security threat

It's the day before an arsenal of downloadable guns is slated to become available on the Internet to anyone in the world and Democratic lawmakers and state officials are reacting accordingly: with last-minute lawsuits and legislation.

Defense Distributed, a Texas nonprofit offering a repository of blueprints for 3-D-printable guns, touts itself as the only such gun-technology business in the United States authorized by the federal government to publish those blueprints online, in the form of design data for the 3-D printers. The available guns - plastic and without serial numbers and therefore untraceable - include AR-15s, AR-10s, a pistol called the "Liberator" and a Ruger 10/22. The technology could herald an era of DIY guns.

But on Monday, eight state attorneys general and the District of Columbia argued in a federal lawsuit that this trove of downloadable weapons posed a serious national security threat and should have never been authorized by the U.S. State Department in the first place. The states sued Defense Distributed, the Second Amendment Foundation, the State Department and other federal agencies regulating weapons.

They are asking a federal judge in Seattle to block a June settlement agreement that allowed Defense Distributed to go forward with its plans to create the online weapons repository, arguing it allows criminals unfettered access to guns and "literally nullifies" state gun regulations. More than a 1,000 people downloaded the AR-15 data between Friday and Sunday, according to state officials in Pennsylvania.

"I have a question for the Trump administration: Why are you allowing dangerous criminals easy access to weapons?" Washington Attorney General Bob Ferguson said. "These downloadable guns are unregistered and very difficult to detect, even with metal detectors, and will be available to anyone regardless of age, mental health or criminal history. If the Trump administration won't keep us safe, we will."

The states of New Jersey, Pennsylvania, New York, Connecticut, Massachusetts, Maryland and Oregon joined in the lawsuit. Pennsylvania had also sued Defense Distributed Sunday, resulting in an emergency hearing in which the company agreed to temporarily block Pennsylvania Internet users from its website.

Democratic lawmakers, including Sens. Charles E. Schumer, D-N.Y., and Edward J. Markey, D-Mass., among others, are also expected to introduce legislation Tuesday to "address the threat" posed by the 3-D-printable guns, Markey's office said.

Monday's eleventh-hour lawsuit is but another chapter in what has been a long legal battle for Defense Distributed. The company and its founder, Cody Wilson, spent five years battling the State Department - but that legal case came to an abrupt if not surprising end with the settlement agreement in June.

Before the settlement, the federal government in both the Obama and Trump administrations maintained that the online "technical data" used to 3-D print the guns amounted to an illegal gun export, since anyone halfway around the world could access it. This was a violation of the International Traffic in Arms Regulations, the government argued.

In 2015, Lisa V. Aguirre, the director of the Office of Defense Trade Controls Management within the State Department, warned the federal court in a 30-page declaration that Defense Distributed's downloadable gun-making schematics would deny the department any opportunity to determine whether the uploaded blueprints would "cause significant harm to the national security or foreign policy interests of the United States," considerations ITAR required.

"The United States and other countries rely on international arms embargoes, export controls, and other measures to restrict the availability of defense articles sought by terrorist organizations," Aguirre wrote. "Making [Defense Distributed's files] available through unrestricted access on the Internet would provide any such organization with defense articles, including firearms, at its convenience, subject only to its access to a 3D printer, an item that is widely commercially available."

Wilson, Defense Distributed and the Second Amendment Foundation have by contrast maintained that this is a First Amendment case, claiming that the government's attempts to block the publication of the information on the web amounts to prior restraint barred by Supreme Court precedent. In an interview Sunday, Wilson's attorney, Josh Blackman, compared the state government's attempts to block his client's website to the Pentagon Papers case, in which the Nixon administration unsuccessfully tried to stop the New York Times and The Washington Post from publishing the contents of the leaked Vietnam War report.

Wilson told The Post that the concerns about public safety risks and gun regulations are "not what this controversy is about. It's about access to information," he said.

As recently as April 2018, the Trump administration rejected that First Amendment argument, saying in a legal filing that Defense Distributed's "characterization of an export as the mere 'publication' of information is wrong - these files unquestionably direct the functioning of a 3-D printer, cause it to manufacture firearms, or otherwise enable the creation of such firearms by those abroad." Regulation of the 3-D printing files is "in furtherance of national security and foreign policy," the government said.

But, months later, in an apparent change in tune, the Trump administration decided to remove the "technical data" for the 3-D gun blueprints from its list of U.S. munitions as part of the June settlement agreement with Defense Distributed, meaning it was free to go forward. As the State Department explained in an announcement on its Web page last week, officials determined this "temporary modification" to the munitions list was "in the interest of the security and foreign policy of the United States." It is seeking to permanently remove technical data from Category I of the U.S. munitions list, transferring the oversight to the U.S. Department of Commerce, but this rule has not yet been finalized.

A department spokesperson told The Washington Post earlier this month, "The proposed regulations would eliminate the ITAR requirements at issue in this case."

In the lawsuit filed Monday, the attorneys general claimed that this "temporary modification" violates the Administrative Procedure Act because, the states claim, "there is no indication in the Settlement Agreement (or elsewhere) that any analysis, study or determination was made by the Government Defendants, in consultation with other agencies, before the Government agreed to remove" the files from Category I of the U.S. munitions list.

The federal government also failed to notify Congress 30 days before removing the technical data from the list and failed to obtain approval from the secretary of defense, the attorneys general contend in their lawsuit.

"The notion that removal of an item from the [U.S. munitions list] is in the national security interest defies common sense," the attorneys general wrote in the lawsuit.

The State Department could not immediately be reached for comment early Tuesday.