Wow! DOJ Settles With Cody Wilson And Defense Distributed

Less than 24 hours after President Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, the Department of Justice comes to an agreement with the Second Amendment Foundation regarding their lawsuit on behalf of Cody Wilson and Defense Distributed. I know I say that actions have consequences but this one is a “Wow!”

From Josh Blackman’s blog with some more details:

BELLEVUE, WA – The Department of Justice and Second Amendment Foundation have reached a settlement in SAF’s lawsuit on behalf of Cody Wilson and Defense Distributed over free speech issues related to 3-D files and other information that may be used to manufacture lawful firearms.

SAF and Defense Distributed had filed suit against the State Department under the Obama administration, challenging a May 2013 attempt to control public speech as an export under the International Traffic in Arms Regulations (ITAR), a Cold War-era law intended to control exports of military articles.

Under terms of the settlement, the government has agreed to waive its prior restraint against the plaintiffs, allowing them to freely publish the 3-D files and other information at issue. The government has also agreed to pay a significant portion of the plaintiffs’ attorney’s fees, and to return $10,000 in State Department registration dues paid by Defense Distributed as a result of the prior restraint.

Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar 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,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called ‘weapons of war,’ and with this settlement, the government has acknowledged they are nothing of the sort.

“Under this settlement,” he continued, “the government will draft and pursue regulatory amendments that eliminate ITAR control over the technical information at the center of this case. They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech. That will allow Defense Distributed and SAF to publish information about 3-D technology.”

Blackman’s blog has all the major pleadings in this case. SAF and Wilson had submitted a petition for a writ of certiorari to the US Supreme Court after losing in the 5th Circuit. This writ had not been denied as it was still in the pleading and reply process. Cert was denied in January 2018.

This is a win for free speech, a win for gun rights, a loss for prior restraint, and a giant FU to the State of California and their paranoia over “ghost guns”.

WIRED Magazine goes into great detail about what Cody has been up to the last few years, the why of Defense Distributed, the gnashing of teeth by the antis, and the blurred line between the First and Second Amendment.

And In Your Morning News From The DOJ…

The Beltway method of releasing news that you don’t want to get a lot of attention is to release it on a Friday afternoon. I’m guessing the Department of Justice under Attorney General Jeff Sessions is taking it a step further with this release regarding bump fire stocks.

From the DOJ:

FOR IMMEDIATE RELEASE

Saturday, March 10, 2018


Department of Justice Submits Notice of Proposed Regulation Banning Bump Stocks

Today the Department of Justice submitted to the Office of Management and Budget a notice of a proposed regulation to clarify that the definition of “machinegun” in the National Firearms Act and Gun Control Act includes bump stock type devices, and that federal law accordingly prohibits the possession, sale, or manufacture of such devices.

“President Trump is absolutely committed to ensuring the safety and security of every American and he has directed us to propose a regulation addressing bump stocks,” said Attorney General Jeff Sessions. “To that end, the Department of Justice has submitted to the Office of Management and Budget a notice of a proposed regulation to clarify that the National Firearms and Gun Control Act defines ‘machinegun’ to include bump stock type devices.”

This submission is a formal requirement of the regulatory review process. Once approved by the Office of Management and Budget, the Department of Justice will seek to publish this notice as expeditiously as possible.

I don’t have a need, want, desire, or love for bump fire stocks. I do, however, believe in the rule of law. 26 USC Chapter 53 § 5845 (b) defines a machinegun as:

Machinegun. The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can
be readily restored to shoot, automatically more than one shot, without manual reloading, by a single
function of the trigger. The term shall also include the frame or receiver of any such weapon, any part
designed and intended solely and exclusively, or combination of parts designed and intended, for use in
converting a weapon into a machinegun, and any combination of parts from which a machinegun can be
assembled if such parts are in the possession or under the control of a person.

Arbitrarily saying that a bump fire stock is the same as a machinegun flies in the face of both the black letter law and in the face of numerous BATFE regulatory rulings. It makes a mockery of the rule of law and should be condemned as such. If the DOJ and the Trump Administration want to ban bump fire stocks, they should, as I suggested in my own comment on the Advanced Notice of Proposed Rulemaking, submit a bill to Congress to add them to the NFA and GCA 68.

In the meantime, I plan to send a few buck to the Firearms Policy Coalition as they have already hired attorneys Adam Kraut and Joshua Prince to submit their comments and fight this in court. By the way, donations to fight this are tax-deductible.

It’s About Time DOJ Released These Docs

The Department of Justice announced today that it had entered into a conditional agreement with the House Oversight and Government Reform Committee to release the documents it has been withholding for six years related to Operation Fast and Furious.

From the DOJ release:



Today, the Department of Justice entered into a conditional settlement agreement with the House Committee on Oversight and Government Reform and will begin to produce additional documents related to Operation Fast and Furious. The conditional settlement agreement, filed in federal court in Washington D.C., would end six years of litigation arising out of the previous administration’s refusal to produce documents requested by the Committee.

In announcing the settlement, Attorney General Sessions said:

“The Department of Justice under my watch is committed to transparency and the rule of law. This settlement agreement is an important step to make sure that the public finally receives all the facts related to Operation Fast and Furious.”

It is a shame that Mike Vanderboegh did not live to see this after all the effort he and David Codrea put in to getting the story out to the public.

I Think Tom Might Be Correct – We Need An Asst AG For The Second Amendment

Tom Gresham made the suggestion on his show Sunday that the Trump Department of Justice should have a special Assistant Attorney General for the protection of the Second Amendment. He referenced how DOJ sent armies of lawyers to the South after the passage of the Civil Rights Act of 1964. The Heller and McDonald decisions confirmed that the Second Amendment protects an individual right to keep and bear arms and that right applies in the states. However, the current DOJ is doing nothing to protect that individual civil right.

I think Tom is on to something.

Having just read of the latest attack on the Second Amendment and the gun culture coming out of New Jersey, I think this is doubly true. An ostensibly anti-suicide bill would create onerous requirements on gun ranges that would force them to close. As the 7th Circuit decided in the Ezell v. Chicago, gun ranges are an essential part of the Second Amendment.

From the Association of New Jersey Rifle and Pistol Clubs:

The bills as presently written would require the owner or operator of every range and gun club to verify that every range user has an FID card, NJ carry permit, or pistol purchase permit, along with government-issued photo ID, every time that person uses the range. That is an impossible burden for most ranges to meet – most ranges are unstaffed or staffed sporadically by volunteers. Few ranges have staff during all operating hours. NO SHOOTING ACTIVITY COULD OCCUR ON ANY RANGE THAT IS NOT STAFFED TO VERIFY CREDENTIALS.

The bills as presently written would also prevent you from using your own firearms on a range unless the range first verifies your credentials, every time you use the range, and bans all temporary transfer on a range unless the range verifies the credentials of both the transferor and transferee. THIS IMPACTS A HUGE SWATH OF SECOND AMENDMENT ACTIVITY, INCLUDING TRAINING, COMPETITION, TARGET PRACTICE, OPEN HOUSES, RANGE GUESTS, HUNTER EDUCATION, WOMEN’S EVENTS, ETC. (see below for detailed examples).

I think of the ranges that I have open to me in western North Carolina. The indoor ranges are staffed and could meet the requirements of such a bill. However, the NC Wildlife Resources Range at Cold Mountain (yes, that Cold Mountain) and the ranges in the Pisgah and Nantahala National Forests are neither staffed nor have Range Safety Officers. These free and/or inexpensive places to shoot would have to be shut down.

Sebastian is correct when he concluded:

This would essentially close every club in New Jersey. It would make it impossible to bring new shooters into the sports, since they would essentially need to apply for and receive an FID card before they could even try it out. This would destroy the shooting culture in New Jersey, and that’s exactly what it’s intended to do. Suicide prevention is a ruse. Christie has shown a willingness to veto legislation like this, and will probably continue to do so as long as he’s in office, but it’s going to be hell to pay if Christie is replaced with an anti-gun Democrat.

 If you live in New Jersey, I suggest that you do as the ANJRPC says and contact your legislators. As to the idea of a special Assistant Attorney General for the Second Amendment, I’m not sure how to contact the incoming Trump Administration directly. However, you could send the suggestion to Sen. Jeff Sessions (R-AL) at his Senate offices.

Gun Control Never Sleeps

While President Obama is taking a valedictory tour of Europe, his minions in the Justice Department are still hard at work trying to establish his gun control legacy. The National Institute of Justice released their final baseline specifications that outline the minimums required for a “smart gun” (sic) if it is to be used by law enforcement. Their efforts on this were in response to a Presidential Memorandum that President Obama issued to the Departments of Defense, Homeland Security, and Justice in January 2016 ordering them to promote “smart gun” technology.

The new release from DOJ is below:

November 16, 2016
For more than two decades, the federal government and the private sector have grappled with a basic question of firearm engineering:  Can modern technology make guns safer—or “smarter”—without sacrificing the reliability, durability and accuracy that owners expect from their firearms?
In January 2016, as part of the administration’s ongoing efforts to combat gun violence, President Obama directed the Departments of Justice (DOJ), Homeland Security (DHS) and Defense (DOD) to answer that question.  Three months later, in April 2016, the three agencies submitted a report to the president outlining a multi-pronged strategy to expand and encourage the development of advanced gun safety technology.  Today, the Administration is taking a significant step forward to implement that strategy: by releasing a final version of “baseline specifications” that outlines, for the first time, a detailed description of the minimum technical requirements that law enforcement agencies expect from smart gun technology.  
The baseline specifications were drafted by the National Institute of Justice (NIJ) – DOJ’s research, development and evaluation agency – in partnership with a team of firearms experts at DOJ and DHS.  Throughout the development process, NIJ sought input from a wide range of stakeholders, including federal, state and local law enforcement, firearms manufacturers and technology experts.  Among other steps, in July 2016, NIJ published a draft version of the specifications in the Federal Register and invited feedback during a 60-day public comment period.  In addition, in August 2016, NIJ hosted a two-day conference in Washington, D.C., with representatives from law enforcement agencies to discuss smart gun technology and review the draft document.
As the April 2016 report to the president made clear, this project was designed to spur the growth of enhanced gun safety technology—and not to mandate that any particular individual or law enforcement agency adopt the technology once developed.  These voluntary specifications serve several purposes:  they provide clear guidance to potential manufacturers about what government purchasers require in their firearms; they serve as a standard against which existing technology can be measured, making it possible to identify what research and development gaps remains; and they allow federal, state and local governments to demonstrate that demand for smart guns may exist—if certain operational requirements are met.  By engaging law enforcement experts in this process, NIJ has produced a final document that both reflects the exacting demands of law enforcement officers and advances the goal of expediting the real-world deployment of smart gun technology.

The final 25 page report can be found here.

Take this as a reminder that we need to remain hypervigilant in the waning days of the Obama Administration. The only reason that this popped up on my radar is that I got an email from the Brady Campaign applauding this move (and asking for money).

Come the afternoon of January 20, 2017, this is one of the many Executive Orders and Memorandum that needs to be discarded. Let the market forces decide whether or not to proceed with so-called smart gun technology and get government out of it. Moreover, we need to work in the states to repeal those laws that mandate the sale of such firearms.

Army “Concerns” About Transfer Of M1911A1 Pistols To CMP

I knew the Depart of Justice had become politicized under the Obama Administration but I still held out hopes for institutions like the US Army. It appears that my hopes were in vain. Based upon the document embedded below, the Army’s Congressional Liaison Office has as many political toadies as the Civil Rights Division of the DOJ.

It appears that someone in either the Department of Justice or the White House has prodded the Army to go public with their “concerns” about the potential transfer of about 92,000 M1911A1 pistols to the Civilian Marksmanship Program. I wrote about the budget amendment put forth by Rep. Mike Rogers (R-AL) that would save taxpayers $200,000 annually by transferring these pistols to the CMP. It is a win-win plan.

Specifically, the Army worries that this transfer could be a threat to public safety, that the pistols would not be traceable, and that it might violate the Gun Control Act of 1968. If the person or committee that wrote this white paper must be depended upon to protect our nation against all enemies, foreign or domestic, then we are sunk. I have not read anything so mealy mouthed in a while.

Let’s review the rules for purchasing firearms or ammo from the CMP. First, and foremost, they don’t sell to just anyone. You have to be an eligible individual. To be eligible, you must:

  • Provide proof of US citizenship
  • Provide proof of age
  • Be a member of a CMP affiliated club
  • Provide proof of marksmanship activity 
  • Be legally eligible to purchase a firearm
The CMP runs a FBI NICS check on every sale which negates the first objection of the Army and DOJ. If you live in certain states, they ship the rifle to a FFL for the final transfer.
They also keep records on every sale and can provide serial number traces. They do this for a fee for individuals who want to know if their M1 Garand originally came from the CMP. Again, this negates the objection about traceability.
The white paper is correct that the CMP is not a FFL. However, they have been exempted from GCA68.
Finally, the CMP is distinctly concerned with marksmanship and firearms safety. They are not going to be selling guns to the Crips, Bloods, or Latin Kings OR felons OR those convicted of domestic violence OR those adjudicated mentally ill. 
Let’s call this white paper what it is – utter bullshit. The officers in the Army that my Dad served for 28 years would have been ashamed to put this out. 

On Judicial Watch’s Suit Against DOJ For Fast And Furious Documents

This past Friday, Ginny Simone of NRA News interviewed Chris Farrell of Judicial Watch. They are suing the Department of Justice to try and force them to release more documents related to Operation Fast and Furious.

Farrell said that President Obama has personalized this by bringing it into the White House through his claim of executive privilege. He says the only way to resolve this is to bring it before a judge through a lawsuit. He says that Judicial Watch is using the courts to force the issue.

From Judicial Watch’s press release:

(Washington, DC) – Judicial Watch announced it filed a Freedom of Information Act (FOIA) lawsuit (Judicial Watch, Inc. v. U.S. Department of Justice (No. 1:12-cv-01510)) against the Obama Department of Justice (DOJ) seeking access to Operation Fast and Furious records withheld from Congress by President Obama under executive privilege on June 20, 2012. Judicial Watch seeks the following records pursuant to a June 22, 2012, FOIA request filed with the Office of Information Policy (OIP), a component of the DOJ:

All records subject to the claim of executive privilege invoked by President Barack Obama on or about June 20, 2012, as referenced in the letter of Deputy Attorney General James M. Cole to the Honorable Darrell E. Issa, Chairman, Committee on Oversight and Government Reform of the U.S. House of Representatives, dated June 20, 2012. More specifically, the records requested herein are those records described by Deputy Attorney General Cole in his June 20, 2012 letter as “the relevant post-February, 2011, documents” over which “the President has asserted executive privilege.”

The lawsuit was filed yesterday, on September 12, 2012.

On August 6, 2012, OIP informed Judicial Watch that the Offices of the Attorney General and Deputy Attorney General had determined that the documents responsive to Judicial Watch’s FOIA request should be withheld in full pursuant to FOIA Exemption 5 which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Judicial Watch appealed the determination. By law, a response was due September 11, 2012. However, as of the date of Judicial Watch’s lawsuit, the DOJ had failed to respond.

DOJ’s Response To Draft Contempt Citation

The Department of Justice through Deputy Attorney General James Cole has responded to the draft contempt citation for Attorney General Eric Holder. As expected, they “strongly dispute” that they failed to cooperate and they note they have provided 7,600 pages of documents to the House Oversight and Government Reform Committee. It should be pointed out that this is approximately one-tenth of the documents requested.

A familiar refrain from the Obama Administration is that “Bush did it”. So it is with Mr. Cole’s letter to Chairman Issa. They also add in that “Reagan did it” for good measure. Rather than rehashing excerpts from the letter, I suggest just reading it at the link below.

The full letter can be read here.

Darrell Issa’s Opening Statement For Today’s Hearing

The House Oversight and Government Reform Committee has released Chairman Darrell Issa’s prepared opening statement for today’s hearings into Operation Fast and Furious.

Chairman Issa Hearing Preview Statement

Over the past year, the ATF program known as Operation Fast and Furious has been the subject of a joint investigation by this committee and Sen. Chuck Grassley, who serves as the Ranking Member of the Senate Judiciary Committee. When this investigation began, the Department of Justice took the position that allegations by whistleblowers about reckless tactics and decision making in this operation were false.

Late last year, after months of investigation, the Justice Department finally acknowledged the allegations were true. Fast and Furious was both reckless and flawed.

The Justice Department, however, has been less than forthcoming in cooperating with the efforts of Congressional investigators to determine exactly what happened and who was responsible:

• The Justice Department has delivered fewer than 8% of the 80,000 documents we know it has identified as being related to this flawed operation.

• It has refused to allow investigators access to numerous witnesses who participated in the operation – one witness, after being served with a subpoena, invoked his Fifth Amendment right to protection against self-incrimination rather than answer questions.

• Justice Department now asserts that many documents pertaining to internal discussions and decision making about its response to Operation Fast and Furious are off-limits to investigators.

The American people deserve better from our nation’s top law enforcement agency. Thursday’s hearing will feature the nation’s top law enforcement official, Attorney General Eric Holder, who will be asked to explain his decision to withhold this factual evidence from investigators. What he is concerned this information would reveal? Why is the Department trying to keep its internal discussions about Operation Fast and Furious from after February 4, 2011 secret? Why did it take nearly nine months for the Justice Department to acknowledge its earlier denials were false? Why did senior Justice Department officials who knew about and received briefings on the operation fail to stop it? Should Americans have confidence in their chief law enforcement agency even though these same officials remain in their posts?

There is now broad bipartisan agreement that the congressional investigation into Operation Fast and Furious has exposed a serious and deadly failure of government. We know that the life of a brave Border Patrol agent has been lost along with countless Mexican citizens who have been victimized by guns from Operation Fast and Furious. Attorney General Holder has acknowledged that the danger created by Fast and Furious will continue for years.

This hearing is not about controversial struggles between gun control advocates and supporters of the Second Amendment. It is about the unifying, and what should be bipartisan, expectation that the Justice Department be held to a high standard and that those who failed to meet this standard should be held accountable. I look forward to Attorney General Holder’s testimony.

Much of the hearings and much of what has been released has been about incompetence which is a start but doesn’t go far enough. I would suggest that this operation could be more accurately be considered a subversion of the Constitution. I may be jaded but I don’t think a reasonable person would conclude that such a Keystone Cops approach to the Mexican drug cartels was ever meant to work. Rather it was meant as a way to build support for greater and greater gun control measures. If one reads John Ross’ Unintended Consequences or Matthew Bracken’s Enemies Foreign and Domestic which are fiction and then compare Operation Fast and Furious to them, the similarities become downright eerie.

Mike Vanderboegh has seen the briefing paper  from the Committee titled “Main Justice: Extensive Involvement in Operation Fast and Furious.” Buried within it is evidence that leads to involvement by the FBI in parts of this operation or a concurrent operation called Operation Headshot.

So, since October the committee staff have been aware of the FBI sanitized version of the “one-armed man” and his brother who were their confidential informants, who provided the money to the straw buyers and whom the FBI have been protecting ever since Brian Terry was murdered. But does the Committee draw the obvious conclusion? Have they aggressively probed the FBI on Operation Head Shot? If this pathetic entry is any indication, no, they haven’t. The FBI, it seems, is off limits.

So now you have a troika of agencies – ATF, DEA, and FBI – involved to some degree in Project Gunwalker. Such coordination of effort among agencies doesn’t just happen without a controlling hand from above in Main Justice. This leads me again to say  this wasn’t about the cartels but rather about building the case for more gun control. This administration is the most Machiavellian since Richard Nixon and it fits their under the radar approach to these issues.

Melson Out At ATF

The Department of Justice released this just a bit ago announcing that Kenneth Melson is being reassigned outside of the Bureau of Alcohol, Tobacco, Firearms, and Explosives and that the U.S. Attorney for the District of Minnesota B. Todd Jones is being appointed the Acting Director. At the same time, DOJ has announced that Dennis Burke, the U.S. Attorney for the District of Arizona is leaving. More on that in another post.

It is interesting to note that Todd Jones will serve as both U.S. Attorney for Minnesota and as Acting Director of ATF. I would have thought they would have learned their lesson about a part-time Director after the experience of Michael Sullivan as both U.S. Attorney in Massachusetts and Acting Director of ATF. They didn’t seem to work out too well.

Department of Justice Announces New Acting Director of ATF and Senior Advisor in the Office of Legal Policy

WASHINGTON – The Department of Justice today announced the appointments of U.S. Attorney for the District of Minnesota B. Todd Jones to serve as Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and ATF Acting Director Kenneth Melson to become Senior Advisor on forensic science in the Office of Legal Policy (OLP).

“As a seasoned prosecutor and former military judge advocate, U.S. Attorney Jones is a demonstrated leader who brings a wealth of experience to this position,” said Attorney General Eric Holder. “I have great confidence that he will be a strong and steady influence guiding ATF in fulfilling its mission of combating violent crime by enforcing federal criminal laws and regulations in the firearms and explosives industries.”

Jones will continue to serve in the capacity of U.S. Attorney when he assumes the role of ATF acting director on Aug. 31, 2011.

A veteran of the Justice Department, Jones has served as U.S. Attorney for the District of Minnesota under two presidential administrations. He first served from 1998 to 2001. He was nominated again in 2009 by President Obama and has been in that role since being confirmed that year.

In 2009, the Attorney General appointed him to serve as chair of the Attorney General Advisory Committee (AGAC), a group of U.S. Attorneys appointed to advise the Attorney General on policy, management and operational issues affecting U.S. Attorneys’ Offices throughout the country. Jones previously served as a member, vice chair and chair of the AGAC from 1999 to 2001.

During his several years as a federal prosecutor, Jones conducted grand jury investigations and has been the lead trial lawyer in many federal prosecutions involving drug trafficking, firearms, financial fraud and violent crime.

Throughout his career, Jones has served as a partner with Robins, Kaplan, Miller & Ciresi (2001-2009); a partner with Greene Espel, PLLP (2001; 1994-1997); First Assistant U.S. Attorney for the District of Minnesota (1997-1998); and Assistant U.S. Attorney (1992-1994).

Following admission to the Minnesota bar, Jones went on active duty in the U.S. Marine Corps, where he served as both a trial defense counsel and prosecutor in a number of courts martial proceedings.

Jones received his B.A. from Macalester College in 1979 and his J.D. from the University of Minnesota Law School in 1983.

Melson will join OLP on Aug. 31, 2011, in his new role as senior advisor where he will focus on issues relating to policy development in forensic science.

“Ken brings decades of experience at the department and extensive knowledge in forensic science to his new role and I know he will be a valuable contributor on these issues,” said Attorney General Holder. “As he moves into this new role, I want to thank Ken for his dedication to the department over the last three decades.”

He is a past president and distinguished fellow of the American Academy of Forensic Sciences, and currently participates on behalf of the department on the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. He has been an adjunct professor at George Washington University for almost 30 years teaching both law and forensic science courses.

Melson was appointed acting director of ATF in 2009. Prior to that, he was director of the Executive Office for U.S. Attorneys and served several years in the U.S. Attorney’s Office for the Eastern District of Virginia.

Melson received his B.A. from Denison University in 1970 and his J.D. from George Washington University in 1973.

CNN also has a report up on this move which repeats the info from the DOJ release and adds some old info about Project Gunwalker.

Politico is also reporting on this move and have a reaction from Rep. Darrell Issa (R-CA), Chairman of the House Oversight and Government Reform Committee, who has been spearheading hearings into Project Gunwalker.

In a statement Tuesday, Issa said “the reckless disregard for safety” by the Justice Department “certainly merits changes” in personnel.

But the committee will continue to investigate Fast and Furious “to ensure that blame isn’t offloaded on just a few individuals for a matter that involved much higher levels of the Justice Department,” Issa said. “There are still many questions to be answered about what happened in Operation Fast and Furious and who else bears responsibility, but these changes are warranted and offer an opportunity for the Justice Department to explain the role other officials and offices played in the infamous efforts to allow weapons to flow to Mexican drug cartels.”