Everyday Erinyes #130

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

I received an email from Everytown for Gun Safety (with a petition link) which read, in part,

[W]e may be down to the wire, but we’re putting everything we have into this fight to stop downloadable guns from becoming a reality — and they’re feeling the pressure.

Yesterday, U.S. Secretary of State Michael Pompeo stated that he will look at the State Department’s decision to allow a company to post its gun blueprints online. This decision would enable anyone, including terrorists, convicted felons, and domestic abusers, to download plans to print functional, untraceable guns out of plastic — and all they would need is a 3D printer. Plus, many of these guns would be undetected by metal detectors, putting our planes, our music festivals, and our government buildings in danger.

BUT — they’re feeling the heat, so we can’t let up just yet! … 

Wondering why I hadn’t heard a whole lot more about this than I have, I went to Snopes to find out more. Well, actually, I went to Google, but from Google I went to Snopes because I trust them to do the homework. The craziness in the world and on the internet has become too much for a Mom-and-Pop site to handle, so there are many new names there since the time when most articles were written by Barbara Mikkelsen, but I still trust the site to have standards, now in their hiring as well as in the actual writing. Here’s what I found out.

What has been going on – and going on since 2013 – is basically one lawsuit by one company which in 2013 developed both software and schematic files which, printed on a 3D printer, allowed anyone who might download these to create a fully functional plastic gun, designed to fire handgun rounds, with interchangeable barrels for different calibers. Besides tha ammunition iitself, the only metal part in the whole thing is a nail which serves as the firing pin.

On May 5, 2013, the company – Defense Distributed – uploaded these files to the internet. Days later, the State Department demanded the files be removed, on the basis that these files were in violation of both the Arms Export Control Act and International Traffic in arms Regulations (ITAR for short).

The files came down, and the founder of Defense Distributed, Cody Wilson, filed a federal lawsuit in the Western District of Te

xas seeking an injunction to permit the specs to stay on line while he and the State Department were working this out. The request was denied, appealed, denied again, and appealed again, this time to the Supreme Court, which, this last January, declined to hear the appeal.

By July 10, Defense Distributed and the State Department, partly under Rex Tillerson and latterly under Mike Pompeo, had reached a settlement, including that the State Department would issue a public statement specifically excluding 3D printed designs from the ITAR. It also included the provision that “designs for any non-automatic firearms up to .50-caliber, including the AR-15 semi-automatic rifle, could be distributed online.”

If this sounds to you like not so much a settlement as a giveaway, you are not alone.

The administration “capitulated in a case it had won at every step of the way,” said J. Adam Skaggs, the chief counsel for the Giffords Law Center to Prevent Gun Violence. “This isn’t a case where the underlying facts of the law changed. The only thing that changed was the administration.”

Alex Kasprak, who completed the article for Snopes, went to a UCLA Law Professor, Eugene Volokh, an expert on the First and Second Amendments to clarify the implications of this case.  Volokh explained that, while a settlement agreement is not technically a legal precedent, this settlement agreement is likely to embolden others to design and publish similar content.

What sets a precedent? A published opinion from a court, preferably an appellate court. But that’s in the narrow sense, the way lawyers would talk about this precedent. If you’re asking whether this settlement will have broader effect on other companies, the answer is absolutely.

This is the federal government, and the federal government usually tries to be fairly consistent in its actions, and it can be easily called on by people if it’s being inconsistent. So the settlement, I think, will have substantial practical effect. Not just in Defense Distributed, but on other companies that are doing similar enough things.

Volokh also stated that he feels the case has not been primarily a Second Amendment case but rather a First Amendment case.

[I]t’s quite a plausible argument about Defense Distributed’s own rights. It says we want to put up information … and you are stopping us from doing that and stopping us from communicating to other Americans about this sort of thing. So that’s a pretty serious argument.

Where does – where can – the government draw a line on dangerous information? Well, it’s not certain. A case in the late 70’s went to the courts when The Progressive wanted to publish an article titled “The H-Bomb Secret: How We Got It, Why We’re Telling It.” Using zero classified information, but relying only on publicly available data. However, that case was never decided on its merits. It was rendered moot when another publication published the information first.

The court was the Western District of Wisconsin; as I say, they never decided the case, but they did issue a prelimiary injunction against publication, stating

A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights. If a preliminary injunction is issued, it will constitute the first instance of prior restraint against a publication in this fashion in the history of this country, to this Court’s knowledge.

A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.

So, as of this moment,

As of 1 August 2018, Defense Distributed will start publishing detailed steps on how to create a variety of guns that require no registration or background check to manufacture. While the broader issue may well be litigated further, the current stance of the U.S. State Department is that Defense Distributed will not be violating any export control laws when they do so.

Well, Tisiphone, you represent Vengeful Destruction, but I like to think that what you in fact represent is OPPOSITION to the same. Far more easily than in the 1970’s I see a great potential for proliferation of vengeful destruction in the way this situation is unrolling. Mike Pompeo, according to the email, has promised to “look at it.” Maybe you, or all three of you, can twist his arm, or any other body parts which may occur to you, to get him to look at it in a rational manner and see it rightly. But maybe even that would not help – under the current regime.

The Furies and I will be back.

Cross posted to Care2 HERE.