Judges aren’t supposed to issue futile and pointless injunctions. Especially not when they lack jurisdiction to issue them in the first place, and might be violating the Constitution in the process. That is just grandstanding.
But when judges decide to join “the Resistance” to the Trump administration, they sometimes do just that. Such antics are embarrassing to the judiciary.
Seattle Judge Robert Lasnik just issued a temporary restraining order so futile it was mocked by NPR, which shares the judge’s liberal slant. As NPR tweeted, “Just in: A federal judge in Seattle has issued a temporary order preventing the distribution of online 3-D blueprints of guns.” “It is unclear how the temporary order can be enforced. The plans were already placed online days ago and downloaded thousands of times and posted online and elsewhere.”
Judge Lasnik’s injunction ordered the State Department not to allow a nonprofit in Texas, Defense Distributed, to post blueprints of how to make a plastic gun using a 3D printer. The order is completely useless, because the blueprints are already all over the internet, as NPR noted. The blueprints aren’t dangerous, because a plastic gun made using a 3D printer falls apart after just a few shots, making it a lousy weapon of choice for a terrorist or a mass shooter. As the Associated Press has noted, the “printers needed to make the guns are very expensive, the guns themselves tend to disintegrate quickly and traditional firearms are easy to come by.” Given both the uselessness of the injunction, and the lack of imminent danger from such guns, it cannot prevent “irreparable harm” — a legal requirement for a temporary restraining order or injunction in federal court.
“A federal court has issued [an unconstitutional] prior restraint on speech (it’s attempting to block the spread of information; it is not blocking the lawful home manufacture of firearms) that is already thoroughly and completely moot. The files are out. They’re all over the internet. They’ve been copied and reproduced. The judge’s order can’t change that fact.
“Moreover, Defense Distributed and the Second Amendment Foundation are hardly the only sources for online files or blueprints that enable a home manufacturer with a 3D printer to make a gun. I’m honestly unclear what the court is trying to accomplish here, aside from targeting the Trump administration and/or targeting a disfavored private company.
“Earlier today I published a lengthy explainer of the factual and legal issues surrounding the 3D-printed gun controversy. I’d urge you to read the whole thing, but the bottom line is easy to understand. First, home manufacture of weapons is clearly lawful, and it has been common practice in the United States since before the founding of the nation. Second, it is thus just as lawful to ‘print’ a gun as it is to assemble one with parts in your garage. Third, the plans to print guns are widely-available on the internet — and have been for some time.
“Put another way, a gun that’s lawful to assemble is lawful to print. A gun that’s unlawful to assemble is unlawful to print, and that includes undetectable plastic guns that are either printed or assembled. It’s that simple. There is no new ‘threat’ here. There is no crisis.”
The injunction thus accomplishes nothing of any meaning in the real world, but it does have legal consequences for free speech. A federal judge is trying to block the free flow of information, including instructions as to how to make entirely lawful products. I would say this is dangerous, but given the high likelihood that his order will be overturned, let’s just call it irresponsible.
Judge Lasnik lacked jurisdiction to issue the order, because it wasn’t requested by anyone who had legal standing to seek it. Judges are supposed to be umpires, not combatants, and can’t issue a ruling unless it is sought by someone with standing (due to the “case or controversy” limit in Article III of the Constitution). The only people who asked for an injunction were eight Democratic state attorneys general, who faced no harm, much less an imminent one, from the absence of such an injunction. One of those state attorneys general was so ignorant of the laws of physics and guns that she claimed that you can “download” a “fully functional” gun using your computer. People are not deemed to have legal standing to sue the government over its failure to enforce the law, if it does not imminently affect them in particular, as opposed to the public at large (as the Supreme Court made clear here and here). So the judge lacked the power to issue his injunction in State of Washington v. U.S. Department of State.
Judge Lasnik’s antics remind me of the misbehaving college fraternity in the comedy “Animal House.” After being expelled for their behavior, they decide that the situation is so dire that they “have to go all out” by committing “a really futile and stupid gesture.” Lasnik seems to view the Trump presidency as a similarly dire situation. But his injunction is so futile and stupid that even a liberal appeals court panel would likely reverse it, if he keeps his injunction in force.
After Judge Lasnik’s ruling, Defense Distributed’s Cody Wilson “expressed disappointment.” He noted that the state attorneys general lacked legal standing to seek the injunction, and argued that the injunction improperly circumvented an earlier federal court proceeding in Texas. In that case, the State Department had settled Defense Distributed’s 2015 lawsuit by agreeing not to censor his publication of the blueprints. As the New York Times reported,
“‘The law is clear,’ Mr. Wilson said. ‘These plaintiffs just don’t have standing to challenge the settlement. You can’t unclose a federally closed matter. And I consider the matter to be closed.’”
Mr. Wilson challenged the Obama administration’s attempt to block publication of the blueprints in 2015, and the legal case had dragged on until last month, when the State Department concluded they do not violate the defense export controls meant to keep delicate military technology out of the hands of the country’s enemies. A court-approved settlement between the State Department and Mr. Wilson ended the legal case and gave Mr. Wilson the right to distribute the schematics.
When I was a judge’s clerk, I was assigned to write a “jurisdiction memo” every time a new lawsuit came in. Its purpose was to keep people from suing over things they lacked legal standing to sue over, or when their dispute was not yet legally ripe or belonged elsewhere. Sadly, this useful safeguard seems to have been overlooked in Judge Lasnik’s chambers.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.