Dueling lawsuits filed in federal courts in Washington state and Texas last week seek to control the home production of 3D-printed plastic guns. Gun rights and free speech advocates say the state and federal government actions threaten the right to bear arms and stymie speech before it is uttered or, in this case, downloaded.
After winning a settlement with the U.S. State Department in June, Cody Wilson, owner of Defense Distributed, boasted on his company’s website that the age of printable guns would begin last Wednesday, when he reposted the code for printing a single-shot, plastic handgun called the Liberator. But U.S. District Judge Robert Lasnik in Seattle shot down Wilson’s plan with a temporary restraining order, not against Wilson but against the State Department.
Last Tuesday’s order blocked the settlement that allowed Wilson to post the code the State Department forced him to take down from his website in 2013. Eight Democratic state attorneys general filed a lawsuit demanding the State Department revoke the settlement as unconstitutional.
In his decision, Lasnik agreed with the dire predictions laid out in the lawsuit, saying, the states “have a clear and reasonable fear that the proliferation of untraceable, undetectable weapons will enable” a host of lawbreakers and mentally ill people to make a gun.
But those arguments ignore the fact that Americans can legally make or modify firearms for their personal use. Those personal firearms do not require a serial number, hence the misleading use of “untraceable,” said Texas attorney and gun rights advocate Charles Cotton. Computer code and a 3D printer simply give gun enthusiasts new tools for an old craft. And Wilson’s code includes space in the final product for the required metal chip that makes the Liberator detectable and legal.
Days before the state attorneys general filed their lawsuit, Wilson received a cease-and-desist order from New Jersey Attorney General Gurbir Grewal and a public admonition from Los Angeles City Attorney Michael Feuer demanding the “blueprints should not be published under any circumstances."
Wilson responded by filing a preemptive lawsuit in the U.S. District Court of Western Texas against the two attorneys, claiming their actions were “an unconstitutional prior restraint on protected speech.”
Alan Gottlieb, vice president of the Second Amendment Foundation, said he suspected the attorneys general sued the State Department instead of Defense Distributed because of the free speech defense Wilson successfully employed to win the State Department settlement.
“The states didn’t want to get into a First Amendment fight,” he said.
Even though several courts have ruled computer code is speech, Cotton admitted the precedent is in flux. Without an explicit conflict in appellate court rulings, the U.S. Supreme Court won’t address the issue soon. But despite the lack of a definitive ruling, Wilson’s free speech claims are legally solid, Cotton told me.
“Speech has never been held to refer only to the spoken word interpreted by a person’s ear,” he said, noting the courts’ extension of speech protections to the media used for transmitting speech like the printing press, radio, television, the internet, and, in 1996, software code.
“This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French. … Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it,” said U.S. District Judge Marilyn Patel in her decision denying the government’s dismissal request in Bernstein v. U.S. Department of Justice.
In that case, University of California, Berkeley, math researcher Dan Bernstein wanted to publish his newly created encryption algorithm. The federal government used the same regulation about international arms traffic to thwart Bernstein and Wilson.
“That horse is already out of the barn,” Gottlieb said.
The Liberator code has been downloaded 200,000 times and is posted on multiple websites with the exception of Wilson’s.
Judge Lasnik will hear arguments Friday to determine whether to turn the temporary restraining order into a preliminary injunction.