Build Your Own Beretta: 3D Printed Firearms and Their Place in First Amendment Jurisprudence

By: Ariana Rosenthal

3D Guns: The Case and Controversy

The widespread concern certainly is not unfounded. These guns will be printed by private individuals, using a code they obtain for free on the internet – no regulations, no licensing, no gun safety courses required and no waiting period longer than the time it takes the gun to “print”. Obtaining a “printed” gun is much easier than obtaining a gun through even the most gun friendly state requirements. This clandestine method of production has led gun control activists to label these firearms “ghost guns” – a name that highlights the fear that this method of weapon production would lead to an influx of unregistered guns. Made mostly from plastic, these guns would also be undetectable by metal detectors Models available for download range from an AR-15 to a .38 caliber handgun.

In addressing the controversy surrounding these downloadable guns, the CEO of Defense Distributed, an online open-source software nonprofit organization that develops digital schematics of firearms, Cody Wilson, stated, “I’m talking about files. I’m not talking about the guns. I’m not a licensed gun manufacturer. I don’t make guns at this location. I have data, I can share the data.” The outspoken, self-described “crypto-anarchist”’s quote encapsulates the more nuanced issue raised by the ghost gun debate, beyond the Second Amendment issue that was at the forefront of the national conversation and debate over these “downloadable firearms” – whether it is Wilson’s First Amendment right to release and circulate the blueprints for 3D guns.

Defense Distributed only wishes to make the ‘blueprint’ of these guns available. After downloading Wilson’s code from his site, those interested in producing their own 3D printed gun would then need access their own 3D printer, would have to provide their own plastic, and assemble the gun – a relatively complex process that may be cost prohibitive for many gun hobbyists.

 

The current litigation over the release of this code arose following the sudden settlement of a case brought by the State Department under the Obama administration back in 2013. The Trump Administration no longer wished to pursue the litigation so eight state attorneys general, along with Washington, D.C., stepped in and joined in a lawsuit seeking to stop the release of the blueprints. Judge Lasnik, a federal judge sitting in the Western District of Washington sided with the attorneys general, issuing a temporary restraining order the evening before the code was to be published. The judge based his decision on administrative law technicalities, with no mention of the First Amendment implications.

Although the attorneys general did not make a First Amendment argument in their filing, with the New Jersey Attorney General stating that this lawsuit was brought strictly in the interest public safety, the injunction appears to many observers to be a prior restraint on Wilson’s speech. The judge justified this act of prior restraint because of the “irreparable harms” that could potentially follow their publication.

Looking Forward 

Despite the temporary restraining order and the pending legislation in federal court, the blueprints are still being distributed through a loophole Wilson found in the judge’s ruling – he is charging for people to download the code rather than distributing them for free. Regardless of the outcome the ongoing litigation has on the future of ghost guns, the debate over their constitutionality highlights a burgeoning area of First Amendment law – computer code as speech – which will certainly be at the forefront as tech becomes more and more central in our lives.

Computer code, although it is an ‘artificial’ language, certainly communicates. Wilson himself certainly seems to agree, currently holding the domain name “codeisfreespeech.com” to provide information and fundraise for his cause. The Supreme Court has never addressed the issue of code as speech, but there appears to be relative consensus across the federal circuits that have heard the issue that have considered computer code to be speech under the First Amendment.

The Internet is one of the greatest hubs for innovation the world has ever known and it will continue to produce these modern and opaque questions about the parameters of speech. Especially when speech has very real and tangible potential consequences, people are bound to disapprove of it – but there are certainly other ways to combat the relatively novel dangers that developments like 3D guns present other than through prior restraint. For example, just last week, the Texas legislature has just introduced a bill that would require 3D guns to apply a serial number issued by the state’s Department of Public Safety to the weapon – a state that doesn’t even have a gun registry. While public safety is of paramount concern, courts should give great consideration to the implications their decisions will have in these modern questions of the Internet and speech when making decisions that may help shape internet speech jurisprudence.