Before we get to Judge Lasnik’s order and how wrong it is, some background is in order.
In 2013, Defense Distributed published files to print their “liberator” pistol—named after the pistol dropped by US bombers to resistants in Nazi‐occupied Europe—on its website, DefCad.org. DefCad served as a repository of weapons related files of various types. The website hosted everything from literal blueprints, to Computer Aided Design (CAD) files, to StereoLitho (STL) and Wavefront (OBJ) files useful in 3D printing.
Two years later, the State Department forced DefDist to remove all weapons‐related files from its website under a tortured interpretation of an obscure cold war‐era law concerning the export of “defense articles.” DefDist sued, arguing that this interpretation worked an unconstitutional prior restraint on speech. After a long battle over a preliminary injunction—which Cato supported with an amicus brief—the Department of Justice decided to settle, paying DefDist’s legal fees and waiving its prior restraint order. As part of the settlement, the government would clarify that the United States Munitions List (USML) did not prevent the distribution of digital blueprints, and issue a letter to defendants advising that the files at issue are approved for distribution. This was to take effect August 1.
On July 30, nine state attorneys general filed a lawsuit against the State Department seeking to block the settlement. The scattershot suit raised all manner of issues, including persistently conflating downloading files with the actual production of illegal “undetectable” firearms. It alleged that the government—in settling with DefDist after having clearly violated their First Amendment—failed to follow protocol in their “modification” of the USML.
The attorneys general filed an emergency motion for a temporary restraining order (TRO)—an extreme legal mechanism reserved for cases showing a likelihood of irreparable harm—barring the government from moving forward with the settlement. Even though the files at issue have been easily available on the internet for years, Judge Lasnik still found that the plaintiffs proved that “irreparable harm” would follow in the absence of the TRO.
In support of this ruling, Judge Lasnik wrote that “[a] side effect of the USML has been to make it more difficult to locate and download instructions for the manufacture of plastic firearms. If an injunction is not issued…the proliferation of these firearms will have many of the negative impacts on a state level that the federal government once feared.”