The whole world, including President Donald Trump, seems to be going nuts about the fact that the feds have settled a long-simmering lawsuit that challenged its attempt to prohibit the company Defense Distributed from making available certain software that could instruct certain devices to manufacture weapons.
You can catch up on what’s going on with Reason‘s reporting on the frantic wave of attempts in the past week—by upset gun control groups, threatening petty officials, and litigious state governments—to scuttle the settlement.
There are three important points that the public panic over this rather limited and technical legal story miss, or misunderstand:
1) Nothing of any new significance to anyone but Defense Distributed really happened. That company, founded by Cody Wilson, a provocateur who designed the first functional 3D-printed plastic gun, is now out from under an expensive multi-year lawsuit against the federal government. The suit challenged the feds for using arcane International Traffic in Arms Regulations (ITAR) rules to restrain his group from distributing potentially gun-making software. The organization can now pursue its business/cause of distributing hardware and software for home gun use freely.
Supposedly. Except now a bunch of authorities below the federal level are trying to stymie them via threat and lawsuit now that the federal government has stopped.
So is this a huge, alarming change in law and culture? Has the crazy Trump administration decided to making home gun manufacturing legal, at great potential peril to the republic?
Making guns at home for personal use has always been legal. (Reason provided a step-by-step guide on doing so in our July issue!) And since 1988, it has been and remains illegal to make or sell a gun that “is not…detectable…by walk-through metal detectors” or “when subjected to inspection by the types of x-ray machines commonly used at airports, does not generate an image that accurately depicts the shape of the component.”
The federal government’s decision to settle, based at least in part on arcane shifts in regulatory authority between the State Department and the Commerce Department, does not change that. And there was never, as far as I know, any attempt to enforce ITAR regulations on anyone else who might be distributing the same or similar files, which were already widely available on the internet. (There is, and should be, a difference between actually violating the law and spreading information that could allow someone to violate the law.)
So anyone and everyone else was in practical terms free to distribute and use software that instructed devices such as computerized CNC mills and 3D printers to make things that could function as guns. Many people were already doing exactly that. Most of the hobbyist action is now in CNC mills, used to make metal guns. The feared plastic ones? Well, as Wilson described his original “Liberator” to me in 2013, “to reduce it to materiality, it still is a crude plastic gun that few people can make.”
2) This is not about the Trump administration being wild pro-gun ideologues. Despite speculations spread, for example, in a Wired story on the settlement, the decision was a specific technical decision based on ITAR. As one of Defense Distributed’s lawyers, Alan Gura, told me, the Trump administration continues to fight against gun rights in all the same cases the Obama administration did, and the most likely reason for settlement was that the government “realized that not a single 5th Circuit judge offered that they were likely to succeed on the merits. To the contrary, the centerpiece of their victory was that they could somehow avoid the merits. When they could avoid the merits no longer, suddenly the national security threat faded away.”
Donald Trump tweeted today that he is “looking into 3-D Plastic Guns being sold to the public. Already spoke to NRA, doesn’t seem to make much sense!” The settlement has nothing to do with any pro-gun agenda on the part of Trump.
For their part, the NRA, which has mostly avoided any comment on the 3D printed weapon matter, issued a press release this afternoon in which their executive director Chris Cox reiterates that at least when it comes to plastic homemade guns, they are and have always been against them: “Regardless of what a person may be able to publish on the Internet, undetectable plastic guns have been illegal for 30 years. Federal law passed in 1988, crafted with the NRA’s support, makes it unlawful to manufacture, import, sell, ship, deliver, possess, transfer, or receive an undetectable firearm.”
3) The case is as much about free speech as it is about gun rights. Since the case ended via settlement and not a decision, no explicit precedent has been set that these specific computer instructional files count as expression protected under the First Amendment. But that was the core of the legal argument Defense Distributed was making, and is still having to make against all the new authorities trying to restrain it.
As the company’s legal team wrote in the lawsuit, “the use of the ITAR to impose a prior restraint on publications of privately generated unclassified information into the public domain violated the First Amendment of United States Constitution,” a point with which they believed previous Department of Justice doctrine agreed.
In a court filing responding to the multi-state lawsuit to stop Wilson’s organization from distributing the files, one of Defense Distributed’s lawyers, Josh Blackman, said that such attempts to legally prohibit Americans ability to “access, discuss, use, reproduce, or otherwise benefit from the technical data” are not constitutionally permitted, as such acts are “expressly protected by the First Amendment. In Sorrell v. IMS Health Inc. [2011], the [Supreme] Court recognized ‘that the creation and dissemination of information are speech within the meaning of the First Amendment.'”
As Blackman rightly stated, this latest state lawsuit to limit Defense Distributed’s activities constitutes a
demand [of] a prior restraint of constitutionally protected speech that is already in the public domain. We know that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” That presumption of liberty is even heavier where, as here, the speech is already available on the internet, and has been available for years….Yet, nine Attorneys General, who swore an oath to the Constitution, failed to even mention the First Amendment in their emergency pleadings. Such a careless disregard for the Bill of Rights fails to meet the “heavy burden” needed to justify a prior restraint.
By eliding what’s really at stake here—more a matter of free expression than any meaningful expansion of the already existing legal ability to make a gun at home—the states suing, and alas too much of the media, are ginning up unwarranted fear to expand the government’s power to restrict speech.
Just this hour, Blackman tweets that in one more of the relentless barrage of actions against them, an attempt in New Jersey state court to get a temporary restraining order against Defense Distributed failed today, though for now Wilson says he’s blocking I.P. addresses from New Jersey and Pennsylvania pending final resolution of the various legal actions.
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