The Right to Share Arms?

October 7, 2016

With the heavy-hitting protections of the First Amendment, the freedom of speech, and the Second Amendment, the right to bear arms, it would seem that 3D printed firearms and the sharing of associated blueprints would be doubly protected. However, the “Liberator” handgun (shown in the video above) may be protected by neither, in the name of national security. While this journal has previously called for regulation in the area of 3D printed firearms and addressed the State Department’s letter demanding the Liberator’s creator, Defense Distributed, to remove the blueprints from their website, a legal battle has evolved in Defense Distributed v. U.S. Department of State.
The State Department based their letter of demand on the premise that publicly sharing the blueprints, known as Computer Assisted Drafting (“CAD”) files, used to print the Liberator violated the Arms Export Control Act and International Traffic in Arms Regulations—essentially accusing him of illegally exporting firearms—and the story left off as Defense Distributed understandably complied. In May of 2015—and after two years of censorship at the hands of the U.S. government—Defense Distributed brought suit and sought a preliminary injunction to block the State Department’s removal demand.
To obtain a preliminary injunction, an applicant must show (1) a substantial likelihood that he will prevail on the merits of the case, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) that his 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 District Court found that the public interest in national security outweighed Defense Distributed’s interest in protecting their constitutional rights and denied to grant a preliminary injunction. Defense Distributed timely appealed to the Fifth Circuit.
On September 20, 2016, the Fifth Circuit Court of Appeals upheld the District Court’s denial of a preliminary injunction, 2-1. The majority reiterated the “very strong public interest in national defense and national security,” and explained:
[T]he 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.
Which is entertaining since 1) the information regarding the engineering and design of nuclear weapons isn’t hard to find, and 2) the Liberator CAD files, only briefly posted on Defense Distributed’s website, are already and will remain online, freely available to anyone, essentially forever.
It is important to note that the majority opinion never reached a discussion on the merits of the case. The substantially lengthier dissent finds the majority’s inaction “highly regrettable” that “leave[s] in place a preliminary injunction that degrades First Amendment protection and implicitly sanctions the State Department tenuous and aggressive invasion of citizens’ rights” that will ultimately “chill the free exchange of ideas about whatever… technical data the government chooses…”

Whether “[t]omorrow’s targets may be drones, cybersecurity, or robotic devices” remains to be seen.

As pointed out by the majority opinion, this case raises a number of novel legal questions including: Can 3D printing CAD files constitute protected free speech? What level of scrutiny is applicable to this statutory and regulatory scheme? Can posting files on the Internet constitute an “export?” While these questions will hopefully be examined earnestly on remand, the censorship of Defense Distributed’s files continues. In the Fifth Circuit, there is no right to share arms—at least for now.