Right-Wing Groups Take Their Case Against a New Jersey Statute to the Deep South Fifth Circuit
A gun-rights group is asking our nation’s most conservative federal appeals court to stop New Jersey’s top prosecutor from barring plans for ghost guns being sold online.
Defense Distributed, a Texas company that has posted plans online to help anyone make plastic guns that can’t be traced, is one of the plaintiffs. Another is the Second Amendment Foundation, a nonprofit based in Bellevue, Wash., which funds gun rights lawsuits.
“At stake now is the modern right to speak about the Second Amendment by sharing computer files with digital firearms information,” attorneys for Defense Distributed and the foundation argued in court documents in a related case.
Supporters of Defense Distributed include the Reporters Committee for Freedom of the Press, a nonprofit association of reporters and editors.
Alan Gottlieb, the founder of the Second Amendment Foundation, said the online code used to produce 3D-printed guns is covered by the First Amendment. He compared it to The Anarchist Cookbook, a book published in 1971 about making bombs which the FBI concluded was protected under the First Amendment.
“That code is free speech,” Gottlieb said.
Defense Distributed is asking the Fifth Circuit—which has jurisdiction in the states of Mississippi, Louisiana and Texas and is packed with Republican-appointed judges—to order an injunction against the New Jersey attorney general.
Such a ruling could block New Jersey’s top law enforcement official, currently acting Attorney General Matthew Platkin, from enforcing a 2018 law passed by New Jersey lawmakers to protect state residents.
The 2018 law made it a felony to distribute plans to make 3D-printed guns to anyone in New Jersey unless they are a licensed manufacturer.
The law, signed by Gov. Phil Murphy, made it a felony to distribute plans to make 3D-printed guns to anyone in New Jersey unless they are a licensed manufacturer. Ghost guns are kits and privately made firearms that are untraceable by design, lacking serial numbers and other identifying markings.
“Anyone possessing a homemade or 3D-printed firearm … will be prosecuted to the fullest extent of the law and face up to five years in prison,” Murphy said.
In August, a federal regulation took effect that requires people who buy ghost gun kits from dealers to undergo background checks and for the kits to include serial numbers.
Police found 45,240 suspected ghost guns at potential crime scenes from 2016 through 2021, including 692 homicides or suspected homicides.
Gottlieb said many things can be used by criminals and that isn’t a release to outlaw them.
“Just because someone might misuse something you don’t use prior restraint,” he said.
New York Attorney General Letitia James and Democratic prosecutors from 19 other states and the District of Columbia filed a friend-of-the-court brief in a related case.
The prosecutors said that allowing lawsuits like this would chill state officials from enforcing their own laws against out-of-state businesses and organizations.
“The scofflaw can drag an out-of-state official into court in the scofflaw’s own chosen forum,” James and the other prosecutors wrote.
Trump rules allowed plans for 3D-printed guns to be sold online.
Before Trump, the State Department had argued that the proliferation of 3D-printed guns could provide terrorist and criminal organizations with access to dangerous firearms.
Our nation has the 32nd-highest rate of deaths from gun violence in the world, almost four deaths per 100,000 people in 2019.
Under Trump, who had at least $16.3 million in help from the National Rifle Association in his reelection effort, the department flip-flopped and wrote rules allowing for plans for ghost guns to be sold online.
The Fifth Circuit, which is based in New Orleans, has been called perhaps “America’s most dangerous court” and “a rogue court.” The court’s circuit justice is Samuel Alito, one of the most conservative members currently sitting on the U.S. Supreme Court and the author of the opinion taking away a woman’s right to an abortion.
In April, a three-judge panel of Fifth Circuit judges ordered that a lower court in Texas ask New Jersey judges to send a lawsuit by Defense Distributed against the New Jersey attorney general back to Texas.
“We conclude that the district court clearly abused its discretion,” wrote Judge Edith Jones, a Reagan nominee who previously pushed to overturn a federal ban on the possession of machine guns.
Even in the extreme Fifth Circuit, a judge questioned the rationale behind asking New Jersey to send the lawsuit back to Texas.
Judge Stephen Higginson, an Obama nominee, wrote that the decision could lead to state attorneys general being “hailed into federal courts across the country to defend their state laws.”
In New Jersey, Judge Freda Wolfson, the chief judge for the district of New Jersey, declined to send the case back to Texas.