A court ruling that dismissed a case in which the plaintiffs challenged New Jersey’s law prohibiting the publication of computer files containing digital firearms information has prompted additional action by one gun-rights organization.
After a three-judge panel of the 3rd Circuit Court of Appeals recently dismissed the case in Defense Distributed v. Attorney General of New Jersey, the Second Amendment Foundation (SAF) has filed a petition for rehearing.
Originally filed in 2018, the case challenges the New Jersey statute dealing with digital firearms information on First and Second Amendment grounds. According to FPC, the dismissal was largely based not on the substantive constitutional claims, but on legal technicalities and perceived factual deficiencies in the record presented to the court.
Bill Sack, SAF director of legal operations, said in a news release announcing the filing that the dismissal decision was fraught with legal errors.
“The Third Circuit’s panel opinion included a number of analytical errors that run contrary to well-established legal precedent,” said SAF Director of Legal Operations Bill Sack. “We are hopeful that our petition for rehearing inspires some additional reflection and research, and either the panel or the entire bench is willing to step in and set things straight.”
In the petition, SAF argues: “This appeal challenges the New Jersey Attorney General’s long-running censorship of Second Amendment speech. It implicates fundamental speech rights protected in parallel by both the First and Second Amendments and exposes ‘the abusive manipulation of federal court procedures’ designed to evade merits review, bringing ‘issues that implicate not only the parties’ interests but those of the judicial system itself.’”
The petition directly questioned the court’s handling of the Second Amendment aspect if the law.
“The district court dismissed Plaintiffs’ Second Amendment claim for lack of standing, and the panel affirmed on the ground that no plaintiff or member ‘attempted to or was prevented from 3D printing a firearm,” the petition stated. “Rehearing is warranted because that downstream-attempt requirement misidentifies the injury in a pre-enforcement challenge to an upstream ban, collapses merits into jurisdiction, and departs from settled standing principles applied across constitutional litigation.”
Petitioners also pointed out that the panel “clearly erred” by disregarding what the complaint actually alleged.
“It dismissed Plaintiffs’ allegations as ‘conclusory,’ set aside the complaint’s description of the files as ‘important expression of technical, scientific, artistic, and political matter,’ and declared the complaint ‘left with nothing sufficient,’” the petition stated. “That is wrong. The complaint identified specific files, described their communicative content, and alleged their expressive character in detail. ‘Setting aside’ rather than crediting those allegations inverts Rule 12.”
Ultimately, SAF founder and Executive Vice President Alan M. Gottlieb will cut out its earlier “legal gamesmanship” and rehear the case on its merits.
“This case has languished in the system since 2018, and it’s entirely unacceptable how the Third Circuit panel found every reason it could to avoid facing the issues we’ve presented head-on,” Gottlieb said. “This case has been plagued by complicated legal gamesmanship and a tortured procedural history, all aimed at undercutting protections guaranteed by the Constitution that the court may find distasteful.”
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