Sep 22, 2016 | By Alec

The verdict is in, and the 5th Circuit Court of Appeals has decided that the online distribution of 3D printable gun designs remains illegal – as national security concerns trump free speech. This 2-1 decision has just closed another controversial chapter in the history of Texas-based promotor of 3D printed guns Defense Distributed. The organization, which was first ordered to remove their 3D printable designs for the single-shot Liberator gun from the web in 2013, sued the State Department back in 2015 by referring to their right to free speech.

It’s an issue with a long history. Back in 2013, it was discovered that Defense Distributed’s 3D printed gun designs were downloaded more than 100,000 times – by people from all over the world. This worried the State Department and lawmakers throughout the US, as the guns in question can be completely made from plastic and remain virtually undetectable. Though they have a tendency to explode in the user’s hands after more than one shot, the Liberator is arguably a potent tool in the hands of terrorists for whom self-harm isn’t a big concern.

But banning anything related to guns isn’t easy in the US, so the State Department turned to ITAR – the International Traffic in Arms Regulations, the set of rules design to regulate the exportation of military data and weapons. In this line of reasoning, the online sharing of 3D printable gun blueprints is the legally the same thing as shipping a crate of guns to another country. In this case, the State Department focused on 10 different designs, including those of the Liberator.

While accepting the reasoning for some time, Defense Distributed eventually found financial and legal backing from The Second Amendment Foundation, which regularly finances gun rights-related lawsuits. In their filing against the State Department, the Defense Distributed legal team essentially argued that the Government is unconstitutionally censoring information and First Amendment-guaranteed free speech, rather than 3D printed guns. And that created a controversial legal issue, as the First Amendment protects unclassified information from prohibition. More problematically, most US states haven’t made the 3D printing of guns illegal at all.

But the State Department has clearly won this round on the digital realm. While Defense Distributed hasn’t been prohibited from handing out blueprints to Americans within the US, items from the US Munitions List cannot be exported abroad without the department’s approval – even in digital, reproducible form.

Initially, the gun rights advocates asked a federal district court to issue a preliminary injunction that would prevent the State Department from enforcing their regulations. The court refused to issue that injunction, bringing the case up to the U.S. Court of Appeals for the 5th Circuit. And that court had just concluded the following:

“Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.”

The reasoning essentially rests on the notion that the public interest outweighs the harm done to Defense Distributed. The State Department’s decision to prevent the export of untraceable weapon technology thus received court backing. Under the 5th Circuit order, Defense Distributed will now be sent back down to the district court, which previously refused to comply with their injunction request. But they can still appeal further and ask for a re-hearing at the 5th Circuit as well.

However, it is interesting to note that one of the three judges, Edith Jones, directly disagreed with her colleagues – calling the case an irrational representation of export regulations. “In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press. Indeed, the State Department turns freedom of speech on its head by asserting, ‘The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis….’ The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest. It is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data,” she wrote in response to the ruling.

In that, she certainly has a point. First Amendment rights usually trump all others, though the US government is certainly allowed to prohibit speech based on its content – if there is compelling government interest. But some might argue that listing web-based data as ‘exported’ totally misrepresents the internet. How can information be legal within the US and illegal on the web, where US citizens can access it? Regardless of where you stand in the 3D printed gun debate, this seems like a very strange legal construction. The next chapter in this controversy will likely follow soon.

Posted in 3D Printing Application

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Rod Halver wrote at 3/19/2017 3:30:14 PM:The NRA is about selling guns not making them at home.Nomen wrote at 9/28/2016 4:42:07 PM:"Anything you design may be used against you!" Guns in the us is synonym to internal terrorism in the first placeScottM wrote at 9/23/2016 11:04:07 PM:The horse is gone quick close the door! Like Americans are the only ones that can design a 3D printable gun. Wow let's slap the rest of the world in the face. And if you want to build a gun get a metal lathe, not a 3D printer. Just sayin...Scott wrote at 9/23/2016 2:42:30 PM:So printing is illegal, but selling 80% lowers is totally okay?? Seems legit.RobinLeech wrote at 9/23/2016 12:40:36 AM:Preventing the people from exercising their rights to defend themselves however they can is more of a national security threat than enabling citizens abroad to do the same. So when they argue it's a threat to national security, what they mean is it's a threat to what they call their "legitimate monopoly of force".Justin B wrote at 9/22/2016 10:19:39 PM:Who get's to decide what public interest is? Who gets to decide what national security means? To me, my interest is my freedom. To me, national security means protecting our freedom from threat. From my point of view, the State Department is the threat to the national security of our freedom. We've always been a nation that prefers dangerous freedom over safe slavery. Who gave the state department to make such ridiculous claims like this. I'm so mad right now. Where is congress and the NRA when you need them....



