The Supreme Court is scheduled to consider a cert petition in Defense Distributed v. State Department as part of its conference today. A little over a year ago, I wrote a post for Lawfare detailing the case, which arose out of the federal government’s attempts to regulate the practice of 3-D printing firearms. This post will provide an update on where the case stands now as the Court considers whether it will step in.

Just yesterday, the Wall Street Journal ran an article detailing the rise of so-called “ghost guns”—untraceable firearms made through a carve-out in federal law focused on hobbyists. Today, making a homemade gun is far easier than it used to be, with toolkits available online and YouTube instructional videos to guide novices. Critically, homemade guns are not required to have serial numbers, which makes it easier to evade law enforcement. According to the Wall Street Journal, the guns are a growing concern for law enforcement, particularly in states like California, where strict gun regulation makes getting out-of-state guns difficult. Some of these guns can be finished using 3-D printers, further reducing the expertise required to make a firearm at home. That is where Defense Distributed v. State comes in.

My previous post outlines the facts in more detail, but briefly: Defense Distributed is a Texas based non-profit committed to defending gun rights through digital manufacturing. This case arose after the State Department instructed Defense Distributed to remove several files from its website, saying that they were controlled by International Traffic in Arms Regulations (ITAR) and that they had been posted without required prior authorization. The files in question would have allowed users to 3-D print, for example, parts for making an AR-15 rifle. Defense Distributed, along with co-plaintiff the Second Amendment Foundation, challenged the State Department’s regulation as a violation of their First, Second, and Fifth Amendment rights.

When we last left the case, a Fifth Circuit panel had affirmed a Texas federal district court’s rejection of a motion for preliminary injunction against the State Department, and the plaintiffs had filed a motion for rehearing en banc. Since then, that motion has been denied, and plaintiffs have filed a petition for writ of certiorari at the Supreme Court. The government has filed a brief in opposition to granting certiorari, and plaintiffs have filed a reply brief. The case was distributed for the Supreme Court conference on Jan. 5.

As framed in the cert petition, the case before the Supreme Court is less about constitutional rights and more about the approach taken by the Fifth Circuit in denying the preliminary injunction. Under the traditional standard for a preliminary injunction, in order to succeed a moving party must show: (1) a substantial likelihood of prevailing on the merits, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) that granting the preliminary injunction will not disserve the public interest. The Fifth Circuit affirmed the district court decision by assessing if the district court had abused its discretion ruling that plaintiffs failed two of the non-merits prongs: the balance of harms and public interest requirements. The Fifth Circuit reasoned that because the district court did not abuse its discretion in deciding those prongs, it did not need to reach the merits. One member of the panel, Judge Edith Jones, dissented and criticized the majority for assuming the merits could not outweigh the other prongs.

The petitioners’ cert petition focuses on this analysis in its questions presented, with two proposed questions about the application of the preliminary injunction standard: The first is “Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff’s likelihood of success on the merits,” and the second is “Whether it is always in the public interest to follow constitutional requirements.” The third deals with the legal issue at the heart of the case: “Whether the Arms Export Control Act of 1976, 22 U.S.C. § 2278, et seq., and its implementing International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Parts 120-130, may be applied as a prior restraint on public speech.”

The bulk of the briefs in support and opposition to certiorari concerns the analytical framework of the circuit panel. The petitioners contend that ignoring the question of the merits altogether ignores Supreme Court precedent, as well as that of 10 circuit courts. The petitioners cite cases underscoring the first prong’s importance, calling it the “linchpin” of the preliminary injunction analysis, and “virtually indispensable.” Relatedly, the petitioners argue that when a constitutional right is at issue, the public interest will always be served by enforcing the right. They contend that, “once constitutional rights are at stake, at least five circuits would not consider other public interests.” Finally, addressing the merits, the petitioners’ brief compares Defense Distributed’s files to the Pentagon Papers, asking the court to reject any conflation of speech and “exports.”

The government largely dodges the question of the merits, arguing that the point of the lower court’s decision is that no matter what outcome on the merits, a preliminary injunction would be improper. The government brief emphasized that preliminary injunctions are extraordinary tools, pointing to the Supreme Court’s precedent in Winter v. Natural Res. Def. Council to support the Fifth Circuit panel’s approach. In that case, the Supreme Court reversed a preliminary injunction despite agreeing the plaintiffs would likely succeed on the merits, because the public interest and balance of the equities weighed decisively against an injunction. According to the government, the petitioners could find no case “holding that analysis of the merits of a First Amendment challenge is necessary even if a court concludes that the balance of equities and the public interest would weigh against injunctive relief for independent reasons in any event.” Additionally, the government argued that requiring an analysis of the merits would violate old principles of judicial restraint, which counsel that courts should refrain from answering constitutional questions if possible.

If the Supreme Court chooses to hear the case, it would confront frontier issues of what kind of protection computer files that create tangible objects receive. If they decline, the litigation may continue in Texas district court, where the constitutional issues may prove unavoidable.