The U.S. Supreme Court declined to hear a case earlier this month involving 3-D printed gun instructions that would have had far-reaching implications for both First and Second Amendment rights. The case will now be sent back to the Fifth Circuit Court to be heard on its merits.
In the case, Defense Distributed v. State, the State Department ordered a Texas-based non-profit called Defense Distributed to remove a file from its website that contained instructions for printing a .380-caliber single-shot pistol.
Defense Distributed and its owner, Cody Wilson, sued the State Department for what they said was a violation of the company’s First and Second Amendment rights. The computer-aided design (CAD) file constitutes free speech, Wilson argued, and the manufacture of a pistol is protected by the 2008 Heller decision.
In their letter to Defense Distributed, the State Department claimed that the instructions could be “ITAR-controlled technical data” released “without the required prior authorization” from the State Department, according to a report from Reason.com. ITAR stands for “International Traffic in Arms Regulations,” a set of policies that govern the import and export of munitions.
Whether CAD files fall under the State Department’s jurisdiction or First Amendment protections would have profound implications for the future of 3-D printing technology.
Wilson’s opponents worry that allowing the free promulgation of 3-D printed gun instructions will cause the widespread use of untraceable plastic guns by criminal elements. Plastic guns, while fragile, are also immune to metal detectors. The only security measures in place at many locations.
It may be too late, however. Defense Distributed’s design files were downloaded over 100,000 times in the two days after it was posted. And the blueprints can still be found online. Even if posting gun-related CAD files becomes illegal, it may be impossible to regulate them effectively.
While SCOTUS declined to hear this case, they’ll likely be forced to rule on CAD files at some point in the future. Kelsey Wilbanks, a lawyer at the Virginia-based firm Smith Pachter McWhorter PLC, notes that if the Court designates CAD files as a form of speech, the government will be restricted in its ability to regulate their publication.
“Every 3-D-printable object in its CAD file form would be subject to constitutional scrutiny,” she says. “Beyond guns, for instance, the U.S. Food and Drug Administration would be restricted in its ability to regulate CAD files for a pharmaceutical drugs or prosthetic body parts.”
If, on the other hand, the Court does not designate CAD files as speech, those files could be regulated in the same manner as the object they digitally embody.
“In that event, operators might be reluctant to post certain CAD files for fear they could be considered weapons under ITAR, or even CAD files subject to other regulatory schemes,” she said. “This could inhibit innovation and open sharing.”
Editor’s note: We meet with Cody at SHOT Show 2018. We talked about the case. Needless to say, with the support of the Second Amendment Foundation, he is not giving up. He is in it for the long haul. Stay tuned for more from Defense Distributed.