The first two protections in the U.S. Bill of Rights guarantee freedom of speech and a right to bear arms, respectively. But what about when those collide?
The founders who wrote it likely never imagined a world where that freedom of speech would apply to electronically encoded files on computers, nor could they have pictured a day when those same files could be used to tell a machine to print, on demand, a pistol. (The Founders also, likely, didn’t foresee militia systems falling out of use).
Yet we now live in a world where the files to print a gun exist, and people have indeed printed guns. Is this an activity the constitution protects?
Decidedly no, according to a ruling handed down earlier this week from the 5th Circuit Court of Appeals. The case, Defense Distributed v. United States Department of State, goes back to the creation of the first 3D printing of a gun, by the activist group Defense Distributed, in May, 2013.
The Liberator pistol is not, by any metric, a good gun.
The original design is single-shot, and while almost all of the gun is printed, it still uses a cheap nail as a firing pin.
As part of the broader aim of a gun that exists outside government control, Defense Distributed made the plans for the gun available online. That’s when they ran into trouble with the State Department, which told Defense Distributed to take down the gun plans.
The State Department was the federal agency that acted in this case, and not the more obvious Bureau of Alcohol, Tobacco, and Firearms (ATF), because by the nature of the internet, the 3D-printed gun files can cross international borders. The State Department seized on this fact to say that transferring technical data like this counted as an export.
Shortly afterwards, Defense Distributed took down the files and then reached out to the Electronic Frontier Foundation to see if they could help with this as a free speech fight.
Last December, the EFF filed a brief in support of Defense Distributed, arguing that the State Department’s enforcement of arms regulations this broadly was in fact a threat to free speech.
So is hosting files for printing a gun protected under the 1st Amendment? Not if there’s national security at stake, ruled the 5th Circuit Court of Appeals.
From the ruling:
That’s weird as heck! The ruling goes on to note that “The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.”
As Ars Technica notes, the opinion of the dissenting judge finds instead a complete lack of concern for free speech from the State Department, is using such a broad interpretation of the law to stop the sharing of these specific files online.
Unless Defense Distributed appeals the ruling, it looks like files for printing guns aren’t protected by both the 1st and 2nd Amendments, but are instead protected by neither.