There’s a legal brawl between U.S. Government and a group of pro-gun activists called Defense Distributed. A court case has been working its way through the legal system as the company seeks to defend itself on First Amendment grounds. What makes this case so interesting: this is the first time that the typically left leaning Electronic Frontier Foundation has stepped in to support a Second Amendment argument. There’s also another less supportive group joining the fray, but first . . .
With the advent of household 3D printing, there’s a real possibility that the average American can simply download a set of blueprints from the internet and print themselves a firearm in the comfort of their very own home. When Defense Distributed published plans for their 3D printable “Liberator” handgun online, the feds were not amused.
The U.S. Government stepped in to try and stop Defense Distributed using ITAR regulations as their big stick. Uncle Sam claimed that by posting gun plans online, Defense Distributed was in effect exporting regulated arms and information to non-US entities. Defense Distributed took exception to this claim and filed suit against the government to get them to back off.
Enter the Brady Center to Prevent Gun Violence (aka Handgun Control, Inc.), who’ve filed an amicus brief asking the courts to stop Defense Distributed from sharing their work because doing so, they assert, is “reckless” and unconstitutional. The Brady Center argues that guns are dangerous objects. Making them readily available is “reckless” and not supported by the U.S. Constitution.
From Ars Technica:
“Not only is Appellants’ position reckless and hazardous to the safety of Americans at home and abroad, it is inconsistent with the U.S. Constitution,” John D. Kimball, the Brady Center’s attorney, wrote in the new amicus brief. “The Second Amendment does not protect the export of firearms or their functional equivalent.”
Narrowly speaking, the Brady Center is right: the Second Amendment only supports the right of American citizens to keep and bear arms. It doesn’t support the right to export those plans overseas. Of course, Defense Distributed has offered to make their plans available only to US-based individuals by limiting access to only IP addresses within the United States.
As for the Brady’s underlying reasoning — the idea that making these plans available is “reckless and hazardous” to American citizens — I’d remind the Brady Center (as well as the court) that people have been manufacturing their own firearms in the privacy of their own homes since the earliest days of the Colonies. Firearms continue to be manufactured from 80 percent lower receivers on a daily basis here in the United States. The question is whether placing prior restraint on the free speech of American Citizens is warranted in this case.
There’s no evidence to support the assertion that 3D printed firearms pose a threat to Americans. There have been no recorded crimes committed with these firearms. The cost of producing a 3D gun is still high enough that criminals prefer using the black market (which has and will always exist) to rolling their own.
In short, while the Brady Center might be right that the Constitution doesn’t protect the export of firearms they’re dead wrong on this specific case.
Given that the court tends to apply a strict scrutiny test to First Amendment cases, the lack of a clear and present danger here should mean Defense Distributed will rule the day. Then again, with the gun control groups failing to find much support for their cause among voters, and with the executive branch pushing hard to implement as much gun control as possible without the inconvenience of going through the legislative branch, it’s possible that this could be a tough fight.
The case could very well end up in the Supreme Court. And now, with Justice Scalia’s death, a positive outcome is far from assured.