The First Amendment, The Second Amendment And The 3D-Printed Gun

Legal Issues

from the wherein-things-potentially-go-from-bad-to-much,-much-worse dept

There are plenty of proponents of the First and Second Amendments, both of which tend to be very divisive at times. There’s enough overlap that many fully support both, but there’s also enough dissension that many use the First to argue for the dismantling of the Second. This is often countered by assertions that without the Second there would be no First, because when it all comes down to it, nothing beats back encroaching governments faster than armed revolutions.

Thanks to the advent of 3D printing, we’ve reached a nexus point. The law says you may own (certain types of) guns. The law also prevents the distribution of guns to other countries we’re currently not getting along with. Being able to print weapons makes a mockery of these restrictions. We’re no longer talking about crates of guns being smuggled aboard freighters or low-flying Cessnas. Now we’re dealing with the reality that anyone, anywhere in the world, can download and manufacture a gun.

Cody Wilson, of gun manufacturing advocacy group Defense Distributed, is that nexus. Shortly after Wilson debuted his fully-functioning 3D printed gun, he received a cease and desist from the State Department, ordering him to stop distributing his blueprint. That worked about as well as you can imagine.

Wilson’s gun manufacturing advocacy group Defense Distributed, along with the gun rights group the Second Amendment Foundation, on Wednesday filed a lawsuit against the State Department and several of its officials, including Secretary of State John Kerry. In their complaint, they claim that a State Department agency called the Directorate of Defense Trade Controls (DDTC) violated their first amendment right to free speech by telling Defense Distributed that it couldn’t publish a 3-D printable file for its one-shot plastic pistol known as the Liberator, along with a collection of other printable gun parts, on its website.

Because a blueprint isn’t a fully-formed gun — at least not until the end user completes the process — Wilson is arguing that his design is nothing more than free speech. If so, then the State Department’s orders violate Wilson’s First Amendment rights. By declaring the publishing of a blueprint on the internet to be indistinguishable from exporting weapons, the government is engaging in prior restraint, according to arguments made in his lawsuit.

As Andy Greenberg at Wired points out, the government has used the International Traffic in Arms Regulation (ITAR) to regulate not-actually-guns before.

ITAR already has a long history of being used to threaten Americans who publish controversial code. In the 1990s, the same regulations were used to threaten cryptographers with prosecution for posting online the first freely available strong encryption tools. Under ITAR regulations, a piece of uncrackable crypto software like PGP was considered a military munition. PGP inventor Phil Zimmermann was even investigated by the Department of Justice for three years at the height of what has come to be known as the Crypto Wars.

This, too, was challenged on First Amendment grounds, but that particular angle was left without closure. The government simply shifted regulation of computer code to the Commerce Department and carved out an exception for encryption. Good news for those producing encryption tools, but of very limited use to Wilson.

In fact, this argument may end up doing more damage than good, if the government chooses to play regulatory roulette in order to avoid having the First Amendment question answered with a legal opinion that may not be in its favor. Chances are that a favorable exception won’t be in the offing — replaced instead with a newfound desire to regulate internet traffic and/or place more burdens on intermediaries to police web traffic involving weapon blueprints. The chance of additional regulatory restrictions on the sale and use of 3D printers is even better. Already, private companies are taking proactive — but stupid and futile — moves to keep themselves distanced from something the government clearly thinks is an illegal act. Beyond regulation of the components, there’s the potential for both free speech and gun ownership to be worse off by the end of this.

But, as noted above, it’s not just the First Amendment being brought into play here. Wilson has more constitutional challenges.

Its complaint also cites the second amendment, arguing that by restricting Defense Distributed’s sharing of printable gun files the government denied the group’s members and followers the right to bear—and acquire—arms. And it questions the authority of the State Department to regulate the publication of technical data, a power it’s long assumed it had been granted by Congress under the Arms Export Control Act of 1976.

Defense Distributed is hitting the State Department with a fifth amendment argument, too. It claims that its staff had their right to “due process” violated. No government agency, it says, can hold the threat of prosecution over Defense Distributed’s head without even a decision on whether its publications are illegal or not—and without a time limit on when it must make that decision.

If you’re begging for more gun regulation, this seems to be a good way of working backwards towards it. I’m sure that’s the last thing Wilson wants, but the issues raised here are simply too enticing for the government to ignore. Its expressed concern relates to “exported” weapons, but there are implications right here at home. People may decide to print their own guns rather than abide by their state’s respective restrictions. Felons who are forbidden to purchase guns may decide to invest in 3D printers. But, despite the introduction of new technology, this really isn’t markedly different from the way the gun “market” has worked for years. Straw buyers purchase weapons for those who can’t, and criminals are largely unconcerned with many laws, not just the gun-related ones, making any gun restrictions essentially meaningless. But the government is apt to view this as a bold new era of unregulated gun manufacturing and will act swiftly and ridiculously to tame the Wild West of weapon printing.

No doubt legislators and regulators will have visions of terrorists and foreign enemies operating 3D printing mills to mass produce weapons, as if the old way of buying black market weapons was somehow more impractical than gathering the equipment and expertise needed to safely generate dozens of weapons that actually work. There’s actually an upshot to global distribution of gun blueprints and 3D printing technology. For people under oppressive regimes, the addition of self-contained, secret gun manufacturing could allow for uprisings and revolutions or simply act as a deterrent for additional ruling class power grabs.

But underneath all of this is the bitter reality that the government is ignoring. No matter what the courts decide and no matter what legislation and regulations are thrown at it, this is already a done deal. Wilson may have taken his plans down in response to the State Department’s order, but it’s already made its way to the edges of the internet — reposted at websites and file lockers and spread via torrents. Other gunmakers have already made design tweaks and improved on Wilson’s early models. These updated versions have similarly spread across the web. Opting for oppressive, restrictive legislation will do nothing but cause collateral damage — if damaging everything but the intended target can truly be considered “collateral.”

If Wilson prevails on constitutional grounds, it will only result in the government searching for a different route to get what it wants: illusory control. It won’t simply accept the fact that this is the new reality and that efforts to stop it are not only futile, but harmful to its own citizens. If it chooses to view code for a printed weapon as either a weapon or weaponized code, it will use public safety and national security to explain away any rights that end up underfoot.

Filed Under: 1st amendment, 2nd amendment, 3d printing, cody wilson, first amendment, free speech, guns, itar, second amendment
Companies: defense distributed