Liberator pistol (courtesy wired.com)

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.

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60 COMMENTS

  1. I very much would like to know how these clown plan to shut down torrents… The information is out there. If you can’t stop people from pirating movies, how do you plan to stop people from distributing perfectly legal data?

    • “They” will pass yet another law to make themselves feel better. See how that works? I feel better already.

      Also noted “position reckless and hazardous to the safety of Americans at home and abroad…” how elitist of us (Americans)

      /dripping with sarcasm

    • The electronic equivalent of “Lost it in a boating accident” is “I had it on a thumb drive and somebody stole it!”

      Just sayin’.

    • Jesus H. Christ Nick!!!!!! The 2nd amendment does not support ANY right. It acts as a constraint AGAINST the federal government. The 2nd amendment is NOT a positive right, it is a natural right.

      • Positive rights are the ones that exist as a political or pratical choice. They do not exists before a statute that creates them is enacted i.e. you can park on this side of the road, but not on the other.
        Natural rights are rights that exists even if there is no statute that creates them, because you can derive it by reasoning alone. You exist. You have the right to exists. You have the right to keep existing if other try to stop you from existing. This is the right to self-defense: it’s “natural” because it exists even if there’s no law that gives it to you. So technically speaking the second amendment does not “give” you the right to bear arms: it protects you from excessive limits to its application from the State.

        • Not even technically speaking.

          The Bill of Rights lays down what the government is not allowed to do. It is a prohibitive document. It doesn’t grant anything, and our rights have exactly zero dependence on it.

    • They’ll just make it a felony to be in possession of a file, or the knowledge to manufacture certain technologies. Easy, right?

  2. “Unconstitutional” has fallen in with “racist” down there in the meaningless hysterical garblegoble nonsense morons shout when they’re raging.

    I’m noticing more and more people are asking for the impossible. It’s simply impossible for anyone even the glorious god of government to restrict the basic knowledge required to manufacture firearms as it is also simply impossible for glorious god government to restrict or “backdoor” encryption.

    These assclowns are asking to legislate against physics and math. Neither of which are proprietary or protected.

    • “These assclowns are asking to legislate against physics and math.”

      They are trying to control, and gain a monopoly on, information as a whole. This is why ‘they’ have sought to control both education and media institutions.

      “Legislating” physics and math is actually attempted in the form of patents and copyrights. I guess that’s more an argument of “ownership” than legislation, but the end-result is similar: control of information.

    • I would have to argue that it is fact not unconstitutional but rather not protected by the constitution. The constitution doesn’t expressly prohibit the action therefore it is not unconstitutional. In fact the legislature has prohibited the action in question not the constitution. Prohibition by default is a gross misconceptionthat seems to be rrampant in mainstream thought these days,and I find it rather sad that more people don’t question the validity of these “logics”.

    • The failure of logic here, IMO, is that this is NOT a Second Amendment issue. The Second Amendment (in theory) protects our natural and civil right to keep and bear arms. Prohibiting distribution of these plans on Second Amendment grounds would be the same as prohibiting all discussion of firearms, how they work, which is more efficient, etc., since in fact no actual firearms are being produced or provided at all, just drawings and discussions.

      While it is true that the plans can be used by automatic equipment to produce an actual firearm, the plans themselves are NOT a firearm any more than an 80% lower is a firearm. It ain’t a gun until the end user makes it a gun.

      The issue here, and I believe the anti-2A crowd knows this and is loathe to address it direectly, is freedom of the press – the First Amendment – since regardless of the physical form the final product takes, it was published and printed. I believe the Mythbusters did an episode on prison weapons created from newspaper (can’t find it on YouTube). So if you can make an effective weapon from newspaper (keep and bear arms, NOT firearms) on which may have been printed the instructions for how to make an effective weapon out of newspaper, how is providing instructions for 3D printing of a pistol any different in concept?

      To argue that 3D printers are not covered by the First Amendment is the same as arguing that the Second Amendment only applies to muskets and sabers.

    • Agree with much of the above in that “un-constitutional” (“contrary to and against”) certainly not the same as their argument of “inconsistent with (the constitution). Freedom of speech and sharing of ideas and the right to bear arms all very constitional on face value.

  3. “wreckless and unconstitutional”? Oh, for a second there, I thought they were talking about o’bama, himself!

      • You beat me to it. There is absolutely nothing that a citizen (or corporation) can do that can be considered ‘unconstitutional’, right? If the government passes a law or enacts a regulation, what we do can be deemed ‘illegal’. But only acts by and laws passed by the government can be deemed ‘unconstitutional’. The Constitution is supposed to limit the powers of the government.

  4. Still looking for the evidence that distributing plans for 3D-printed firearms is “unconstitutional” – especially since the constitution primarily enumerates state authority, and reserves all other, non-enumerated authority to the States, and to the people.

    I would argue that ITAR, as-applied to non-military-specific, protected/classified arms, is unconstitutional.

    • The Feds are using ITAR. What Cody failed to do was follow the example of Phil Zimmermann in the distribution of PGP back in the 90’s. To download PGP, which was a novel public/private key encryption technology, one emailed Phil. He then traced your IP address to ensure your computer was physically located within the US. Then he emailed you the files. The Feds had no way to invoke ITAR against him, even though encryption technology is listed on the restricted munitions list.

      • I’ve read that the way PGP was actually distributed to end the ITAR claim was by publishing the source code in a book. The book was printed and sold. Cody should do the same with the 3D printed gun. Don’t distribute software, publish books.

  5. Just because something isn’t explicitly stated in the constitution doesn’t make it unconstitutional. The constitution is a documentation of the responsibility and limitations of our federal government, it does not address every possible action a person or the government may take.

    In the case of the 2nd Amendment, it is silent on the sale or export of firearms. It doesn’t prohibit it.

  6. I’m thinking someone at Brady doesn’t realize that unconstitutional doesn’t mean what they think it does. Perhaps that’s because they’ve been fighting against the Constitution for so long, they don’t really know the difference.

  7. Not protected by the Constitution = Unconstitutional? Yeah, that’s the kind of logic I’d expect from the folks at Brady Center.

  8. Brady’s argument is specious and directed to the wrong article in the constitution.

    The issue isn’t 2A, it’s 1A– free speech. Does Defense Distributed have the right to disseminate information in the public square?

    This case isn’t about distributing firearms, it’s about information— speech.

    • So the Brady Bunch are specifically requesting prior restraint for the material at hand? If the government felt they could not prevail in United States v. Progressive, Inc. how the hell does the Brady Bunch think they can? I swear they’re a group of conniving idiots.

  9. Calling the EFF left leaning seems completely off base. They simply have a very narrow scope, within which the causes of the right leaning folks have rarely intersected. Specifically they defend the Constitution as it pertains to computers and more often the internet. This usually means the first and fourth amendments. It’s not until this case that a second amendment issue has come into their domain.

      • Not quite. For example, they are in favor of net neutrality, which is regulation.

        https://www.eff.org/issues/net-neutrality

        EFF’s main goal is open, uncensored Internet. When the threat to that comes from the government (by far the most often case), they oppose whatever regulations the government is trying to create. But when that threat comes from private monopolies or oligopolies, such as cable companies, they ask the government to do their job in reigning those monopolies in, and enforcing free market (in the original sense that Adam Smith used when he introduced that term – a market where everyone is free to compete and prices are set naturally by supply and demand, and not by monopolistic imposition, whether than monopoly is government or not).

    • And they’re involved here because it’s a 1A issue, not a 2a issue.

      This isn’t about the right to keep and bear arms. This is about the right to disseminate information, free speech.

  10. Defense Distributed will win on the same basis as a long previous case regarding the export of encryption.

    The DOD did not want encryption algorithm to be exported. The author of that code printed 100% of the source code in a book and sold it as a book explaining the code and how to compile it. The DOD and State Dept. fought it all the way to the SCOTUS but lost on 1A grounds.

    In the opinion, it was stated this was the authors own work and this was freedom of speech that the government could not stop.

    This is very similar. Defense Distributed created their own design they did not steal it. They created plans that they are now distributing. This will be considered free speech. If the DOD tries to fight it, they can take the bits and bytes and UUENCODE it on a webpage which people can easily copy and past to a program which will create the proper file. The web page itself would be considered free speech and there is nothing they can do about it.

    I love any case that tells the .gov to back the F off.

    • I agree that Defense Distributed SHOULD win their case, but I don’t see it as a certainty, because “GUNS!”

    • I have been wondering why Defense Distributed hasn’t just printed as a book the schematics and code to compile into the necessary files to print the liberator and offered it for retail sale somewhere, like that Austin book shop perhaps?

      Basically I don’t get why they haven’t taken the easy out of the encryption case and publicized that yet; unless they want to challenge the law on different grounds and just simply not win on the same grounds as the encryption case.

      • Computer code is endlessly duplicable. Since the intention of Defense Distributed is not to set itself up as a profit center by selling these plans their existence is not a commercial enterprise. As noted above, should these plans appear “in the wild” through loss or theft Defense Distributed could not be liable for any future use/misuse of same.

        Above and beyond the supposed Constitutional issues, once the information is public the originator can no longer be held accountable for what the end user does with it. Tom Clancy wrote a novel about terrorists using airplanes as weapons against the Capitol – was he indicted?

        “Well before National Security Advisor Condolezza Rice and President Bush went on record to say (in effect) that no one could have imagined or predicted that terrorists would hijack planes and crash them into buildings; and long before war games planned at the highest levels of our national security and defense apparatus for the day of 9/11/01 involving simulated hijacking of planes (e.g., Vigilant Guardian, Amalgam Virgo) and the simulation of a plane crashing into a building (e.g., the 9/11/01 drill at the National Reconnaissance Office in Chantilly, Virginia); and well before a photo-realistic graphic image of the burning WTC towers would appear on a rap music CD cover; and even before former Director of Central Intelligence, John Deutch, along with former National Security Council member, Philip Zelikow, speculated in the CFR journal, [Foreign Affairs, Nov/Dec 1998], about the consequences of an amplified version of the 1993 WTC tower bombing that “Like Pearl Harbor” would be an event that would “divide our past and our future into a before and after” — yes, long before any of these imaginings and manifestations; Tom Clancy’s, 1994 novel [Debt of Honor] told of a JAL 747 jumbo jet being crashed intentionally into a ceremony on Capitol Hill, killing most of the top functionaries in U.S. government leading to an “after” (in the Clancy sequel [Executive Orders]) involving the imposition of martial law.”

        http://911blogger.com/node/14694

        • The point is not to sell it to make money, but to sell it to cover the cost of distributing a hard copy version and to trigger the first amendment protections, like was done in the pgp case.

        • Martial law was not declared as a result of the plane crash. It was declared because of the ebola attack several months later.

        • PeterZ, The entire plot of the novel was not the point. The point is that Clancy described a possible use of a 747 as an instrument of a terror attack and sometime later a bunch of terrorists used the concept to commit an attack of terror. No one suggested that Clancy should be indicted for having and publishing the original idea.

  11. Brady has envisioned their own ‘common sense’ constitution. 90% of the American public supports it…..blah, blah, blah, etc.

  12. Brady Campaign: Posting 3D Printed Gun Blueprints Online is Reckless and Unconstitutional:

    “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”

    Hahaha.. Haha! Funny. I was at the tailor the other day and had my pants hemmed. I believe that must also be unconstitutional.

      • The credits at the end list David Brinkley and William Devane.

        You weren’t kidding about interesting, I used the Firefox plug-in ‘Flash and Video Download’ to save a copy as an MP4…

  14. Wow, is the Brady Bunch off their rocker if they think they could win this.

    If someone could explain to me the difference between readily available specifications for numerous types of firearms (go Google AR-15 Receiver Specifications, for instance) and those of Defense Distributed, I’d be happy to hear it. Sure I don’t own a milling machine and I get that 3D printing is a much more attainable piece of hardware, but to me it’s a difference without a distinction. In either case, we’re talking about information. Nothing more, nothing less. The information could just as well be plans for a birdhouse.

  16. And now, with Justice Scalia’s death, a positive outcome is far from assured.

    First of all, “now” is not when this case will reach SCOTUS. If it does reach the Court, it will be years down the road. Worry about cases that are in front of the Court in this Term, not the cases that may or may not come before the Court years from now.

    Second, a “positive outcome” was never assured and could not be assured even with Scalia on the bench. We’ve seen too many cert denied 2A cases in the last few years to believe that any outcome was assured, likely or even possible.

  18. Do they know that open-source physics textbooks contain all the basic information necessary to construct an A-Bomb?

  19. “The Second Amendment does not protect the export of firearms or their functional equivalent.”

    The second amendment is silent on the matter, but the ninth amendment is not.

    While the commerce clause may allow the government to infringe on peoples’ rights with regard to export, that does not make distributing files for 3D printed guns “unconstitutional.” That reflects a complete lack of understanding of what the term “unconstitutional” means.

    It is, effectively, impossible for an individual citizen to do something that is “unconstitutional” because the Constitution functions entirely to restrict the government, not individual citizens.

    • Which may be exactly why the only Constitutional amendment ever ratified to control the actions/activities of individuals (18th amendment – prohibition ) is also the only amendment that has ever been repealed (21st amendment Repeal of Prohibition).

  20. “I think Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about.” – Justice Scalia

  21. Letting people try and make policy based on topics they don’t understand, now THAT’S reckless.

    (but constitutional)

  22. These idiots would hate to see my garage right now. I have three builds going on right now. I have an AK 74 that’s going to be in 300blk (why? Why not?), a Yugo M76, and a Galil project I am building. All three were kits, and I purchased the receivers over the past few months. As parts arrive I do some assembly and fitting. I should have the M76 done on Saturday and at the range Sunday. The AK 74 still needs a barrel and 5.56 mags. The Galil is mocked up, waiting on some tools.

    I wish I had a 3d printer to make stuff for the hell of it.

  24. As stated by others, the Brady Campaign’s position is absurd. Just because the 2nd Amendment doesn’t explicitly protect something doesn’t mean people don’t have a right to do it. They are engaging in the age-old misconception that the Constitution grants rights, and thus we the plebes are only able to do things within what the Constitution says. Furthermore, as stated by others, the Constitution only applies to the government, not individuals.

  25. I’m not for or against 3D printed guns. However, how can they say that speech (in this case, digital speech online through websites and downloads) is unconstitutional? They are wrong.

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