Ignorant Hysteria Over 3D Printed Guns Leads To Courts Ignoring The First Amendment

from the can-we-somehow-add-in-a-3rd-amendment-issue-here dept

A year and a half ago, we wrote about a troubling ruling by the 5th Circuit siding with the US State Department waving a magic "national security" wand to ignore the First Amendment implications of banning the internet distribution of the CAD files for 3D printing components for guns. As we pointed out over five years ago, the hysteria over these 3D printed gun plans was silly. Attempts to ban them from the internet wouldn't just fail, but would actually draw much more attention to them.

However, in the last few days the hysteria has returned... and much of it is misleading and wrong, and while most people probably want to talk about the 2nd Amendment implications of all of this, it's the 1st Amendment implications that are a bigger deal. First off, most of what you've probably heard about the case is either wrong or misleading. David French has a pretty good post separating fact from fiction. This is not (as some claimed) the Trump administration "legalizing" 3D printed guns. It is already legal to make guns yourself, so long as they are not undetectable. Undetectable guns are already illegal under the Undetectable Firearms Act of 1988 and nothing has changed or is changing on that front.

The issue, again, is whether or not Cody Wilson's Defense Distributed can post the files to the internet specifically because the State Department claims that this would represent an illegal export of a weapon, violating ITAR, the International Traffic in Arms Regulation. Let's be clear about this: throughout all of this no one (not even the US government under Obama) argued that detectable 3D printed firearms are illegal in the US. That's because they're legal. They have been before this and they still are. The specific issue was that the State Department sought to block the files put up by Wilson/Defense Distributed because of export restrictions outside of the US. This is silly for a variety of reasons, as already stated, because the files are already widely available all over the place, and that's not going to change.

The 5th Circuit ruling in early 2017 was problematic, because it effectively pushed aside the prior restraint/First Amendment concerns by just saying "well, national security trumps that issue." But, that's not how the First Amendment works. There is no "balancing test" for the First Amendment. There is a very small and very limited set of exceptions to the First Amendment, as set forth by the Supreme Court. They do not conduct a balancing test. Indeed, in United States v. Stevens, the court explicitly rejected the idea of a balancing test.

The Government's proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment's free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

So that ruling was already problematic for the 1st Amendment.

What happened here, was that the federal government settled its case with Wilson and Defense Distributed, which would have allowed him to put the files back up on the internet. Once again, to be clear, this did not "legalize" 3D printed guns. 3D printed guns are already legal, so long as they are detectable. If they are undetectable, they've been illegal since the Undetectable Firearms Act of 1988.

The only issues here were whether or not a court could prevent putting files (speech) onto the internet out of a fear that those files might be "exported" and turned into a weapon... and whether or not that would violate regulations against weapons trafficking.

But, never underestimate the amount of hysteria that can come from questions around both the 1st Amendment and the 2nd Amendment -- and when combined things go into overdrive.

So a bunch of states sued to somehow try to stop this whole thing from going forward -- though it's unclear what there is to actually stop. Can states stop the US government from settling a lawsuit? That seems odd. Either way, at least three courts rushed forward to issue injunctions against posting the files, including Washington State, where the judge didn't even seem to consider the First Amendment issues at hand, and issued a ruling that seems to be a classic case of prior restraint. I mean, the ruling literally doesn't even discuss the First Amendment concerns. Instead, it argues that there's a likelihood of success under the Administrative Procedures Act, effectively arguing that because the government is modifying the munitions list, it needs to go through a more thorough administrative process. That... seems weak, especially given the First Amendment issues at play.

Again, no matter how you feel about the 2nd Amendment, guns or gun control... that's not really the issue here, even if it's clouding much of the reporting on it. Nothing in this case is about legalizing 3D printed guns. It is entirely about exporting computer files that might be used by people outside of the US to make guns, but which are already widely available in many places on the internet and aren't going to go away (note that this case only applies specifically to Cody Wilson and his organization, and doesn't directly impact third parties who are already distributing the files elsewhere).

The real concern here should be about the First Amendment. As we mentioned earlier, in suggesting that there's some sort of "balancing test" between national security and free speech -- and that prior restraint is acceptable when balanced against national security -- the courts have opened up a huge Pandora's box of trouble. Even if you hate guns and think the 2nd Amendment should go away, please think carefully about what the world looks like when the government is allowed to censor speech that it claims is a risk to national security.


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  1. identicon
    Anonymous Coward, 2 Aug 2018 @ 8:08am

    Anyone conflating instructions for printing a gun with child porn is making a huge mistake based purely on the logic of "I don't like this (and assume no socially acceptable person does) so therefore it should be banned."
    1. The entire purpose of the 1st ammendment is to protect unpopular speech. Popular speech does not require protection. No one seeks to repress it.
    2. The "amount of harm" related to speech is irrelevant. There is literally no upper limit on the amount of harm that can be related to speech. Speech (outside of direct orders to commit harm) does not cause harm. A photograph of mass graves of jews or Hiroshima in 1945 are not contributory to those acts. Descriptions of crimes are not illegal. Instructions on how to commit crimes are not illegal. Graphic evidence of crimes that is deeply embarassing to the victims is not illegal. Child pornography exists in a strange alternate legal dimension where the 1st ammendment stops applying for reasons that are not entirely clear and best described as "just because". Why anyone would want to extend that logic to additional topics like guns is baffling.
    3. Even if point 2 is ignored, anyone who even casually reads TD should be familiar with just how completely absurd the war against Child Pornography has gotten. The stereotype of ugly middle aged white men molesting babies on camera os vanishingly rare compared to the amount of CP produced by consenting teenagers sending pictures of their junk to each other. To make a blanket statement that "CP is so harmful that it must be banned" implicitly ignores that the vast majority of "Child Porn" was created consensually (unless you want to go down that road that decides for people that they weren't old enough to consent to actions they performed willfully and deliberately without coercion).
    4. Even ignoring all of the above making and possessing child porn IS actually illegal (regardless of whether or not it should be). The making and possessing of a 3D printed firearm is NOT (regardless of whether or not it should be). The CAM files in question are not illegal to possess or use. The ONLY thing being discussed here is whether it is legal to "export" them and whether the definition of "export" covers anything made available through the internet. I would be surprised if any reasonable person wanted to even attempt to argue that because it is so completely absurd on its face. A computer server is not engaged in international trade and the conveyance of information on how to make guns beyond the US borders is not the same as packing guns in a box and shipping them overseas. Printing off gun milling instructions into paper form and transporting them overseas would be unquestionably legal. That ideas can somehow become illegal when encoded into a digital format is ridiculous.

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