*Rebekah Nickerson
Support among the American public for stricter gun laws has steadily increased over the last few years in the wake of mass shootings. Steven Shepard, Gun Control Support Surges in Polls, Politico (Feb. 28, 2018, 07:27 AM), https://www.politico.com/story/2018/02/28/gun-control-polling-parkland-430099. In 2016, support for more restrictive gun laws climbed to fifty-eight percent among Americans following the Pulse nightclub shooting. Id. Support rose again to sixty-four percent following the Las Vegas country-music festival shooting and climbed higher yet to sixty-eight percent after the horrific Parkland school shooting earlier this year. Id.
A unique variable in the debate has surfaced, adding yet another level of complexity to the changing landscape of gun control. See Julia Cosans, Between Firearm Regulation and Information Censorship: Analyzing First Amendment Concerns Facing the World’s First 3-D Printed Plastic Gun, 22 Am. U. J. Gender, Soc. Pol’y & L. 915, 917 (2014). Computer Aided Design (CAD) software has been utilized to create a wide array of 3D-printed objects including fully operational firearms. Id. at 919–20. What was once science fiction is now a reality. Susannah Cullinane & Doug Criss, All Your Questions About 3D Guns Answered, CNN (Aug. 2, 2018, 8:24 AM), https://www.cnn.com/2018/07/31/us/3d-printed-plastic-guns/index.html. Through 3D printing, people now have the ability to print firearms from the comfort of their own homes. Id.
While the creation of 3D-printed firearms has encouraged further technological innovation, it has also greatly increased the ease with which individuals can obtain weapons. Derk Westermeyer, The State Department Can Gun down 3-D Printed Firearms, 13 Wash. J.L. Tech. & Arts 201, 206 (2018). The mission behind publicizing 3D-printed gun plans is to “allow people to easily produce their own weapons and weapon parts using relatively affordable and readily available equipment.” Def. Distributed v. U.S. Dep’t. of State, 838 F.3d 451, 454 (2016). Hence, 3D-printed firearms are created using the plastic material found in common Legos, making them virtually undetectable by conventional security measures. Cullinane & Criss, supra; Westermeyer, supra, at 205–06.
In 2013, Cody Wilson, an anarchist and the founder of the startup Defense Distributed, garnered national attention when he shot the first ever fully 3D-printed gun. Abigail Brooks, Who is Cody Wilson, the Man Behind the 3D Printed Gun?, CNN (Aug. 1, 2018, 1:10 PM), https://money.cnn.com/2018/08/01/technology/3d-printed-gun-cody-wilson-defense-distributed/index.html. Shortly thereafter, Defense Distributed placed downloadable blueprints for the gun online. Id. In just two days, the design model was downloaded over 100,000 times. Westermeyer, supra, at 203.
Fueled by concern of easily accessible weapons getting into the hands of criminals, the State Department quickly ordered Defense Distributed to take the blueprints offline. Cosans, supra, at 918. The State Department asserted that providing global access to the firearm schematics potentially violated the export restrictions on defense-related articles found in the International Traffic in Arms Regulations (ITAR). Jon Terbush, The Obama Administration Takes Aim at 3D-Printed Guns, Week (May 9, 2013), http://theweek.com/articles/464504/obama-administration-takes-aim-3dprinted-guns; Cosans, supra, at 920. ITAR requires a license for any export of a defense article, which includes “transmitting the article outside of the United States in any form.” Westermeyer, supra, at 209.
In demanding the removal of the blueprints from the web, the State Department shifted the debate on gun control from a classic Second Amendment issue to a First Amendment debate. Cosans, supra, at 921. First Amendment protections for citizens’ freedom of speech encompass expressive conduct, or actions that express an idea, in addition to pure speech. Id. at 921–22. A legally sound argument can be made that the CAD schematics uploaded by Defense Distributed communicated ideas and information and thereby possessed expressive features. Id. at 932.
In response to the government’s actions, Cody Wilson brought an action against the State Department in 2015 alleging First and Second Amendment violations. Matt McFarland, Amazon Bans the Sale of a Guidebook for 3D Printing a Gun, CNN (Aug. 23, 2018, 6:12 PM), https://money.cnn.com/2018/08/23/technology/amazon-3d-print-gun-book/index.html. Wilson sought a preliminary injunction against the State Department, which would order the Department to suspend enforcement of the licensing scheme found within the ITAR while the trial was ongoing. Def. Distributed, 838 F.3d at 456. The United States District Court for the Western District of Texas denied the preliminary injunction, and the Fifth Circuit of the United States Court of Appeals affirmed the holding. Id. at 452, 461. The merits of the constitutional arguments were not addressed. Id. at 461.
In a turn of political agenda, the transfer between presidential administrations in the 2016 election brought with it an effort to deregulate gun exports. Deanna Paul, Meet the Man Who Might Have Brought on the Age of ‘Downloadable Guns’, Wash. Post (July 18, 2018), https://www.washingtonpost.com/news/post-nation/wp/2018/07/18/meet-the-man-who-wants-to-bring-on-the-age-of-downloadable-guns-and-may-have-already-succeeded/. The State Department, under the Trump administration, and Cody Wilson reached a settlement earlier this year in June. James Lartey, DIY 3D-printed Guns Get Go-Ahead After Trump Administration Strikes Court Deal, Guardian (July 23, 2018, 9:19 AM), https://www.theguardian.com/us-news/2018/jul/23/3d-printed-guns-court-settlement-trump-administration-cody-wilson. Pursuant to the settlement agreement, Defense Distributed was able to make the blueprints available online again starting on August 1, 2018. David Sherfinski, Gun Company Wins Legal Fight to Post 3D Printable Gun Plans Online, Wash. Times (July 22, 2018), https://www.washingtontimes.com/news/2018/jul/22/defense-distributed-wins-settlement-can-post-firea/. Additionally, the government agreed to pay approximately $40,000 in legal fees. Id.
After the blueprints were once again made accessible to the public, more than twenty states sent cease and desist orders to Defense Distributed. David Maccar, NRA Releases Statement on 3D Printed Guns, Range365 (Aug. 1, 2018), https://www.range365.com/nra-releases-statement-on-3d-printed-guns. Eight states, including Maryland, filed suit against the Trump Administration in an effort to block the settlement. Michael Rubinkam, States Suing Trump Administration, Company Over 3D Guns, Chi. Trib. (July 30, 2018, 7:29 PM), http://www.chicagotribune.com/news/nationworld/ct-trump-printed-guns-lawsuit-20180730-story.html. A federal judge in Seattle blocked the release of the blueprints through the use of a temporary restraining order, expressing concern that the homemade weapons could end up in the hands of criminals. Matthew Bellisle & Matthew Daly, Judge Blocks Release of Blueprints for 3D-Printed Guns; Maryland Had Sued to Stop Downloads, Balt. Sun (July 31, 2018, 7:20 PM), http://www.baltimoresun.com/news/maryland/politics/bs-md-3d-gun-lawsuit-20180731-story.html. The legal battle is set to continue as Defense Distributed has already filed suit in Texas alleging that they are a victim of harassment and citing several First Amendment violations. Id.
In sum, while 3D printed guns present a novel issue, trying to close Pandora’s box and retract them from the web may prove to be fruitless, particularly as 3D printing technology advances and inevitably becomes less costly. Charlie Osborne, Guns Are Already on UK Streets. 3D Printing Could Make Things Far Worse, ZDNet (Aug. 21, 2018, 8:27 AM), https://www.zdnet.com/article/the-possible-effects-of-3d-printed-guns-on-uk-gang-culture/. Instead, other approaches should be considered. Id. For instance, a discussion on the lack of police resources making law enforcement ill-equipped to deal with this phenomenon may be a useful place to start. Id. Perhaps, instead of expending so much energy on reversing what has already been made globally accessible, it would be wiser to consider how to meet the next generation of technologically advanced weaponry with equally sophisticated defense mechanisms.
*Rebekah Nickerson is a third-year evening student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review. Rebekah works as a research assistant for Professor Charles Tiefer and has served as a law scholar for Contracts II, Criminal Law and Law and Economics. She works year round in the Maryland State Senate and interned last summer for the Hon. Joseph Getty at the Court of Appeals of Maryland. Next summer, Rebekah will be working at Saul Ewing Arnstein & Lehr in Baltimore as a summer associate.
University of Baltimore Law Review 