Whether Americans will be able to download plans to build their own plastic guns at home will be debated in federal court yet again this week, with Pennsylvania Attorney General Josh Shapiro and eight other state attorneys general siding squarely against the idea.
On the other side is Cody Wilson, owner of Texas companies Defense Distributed, DEFCAD and Ghost Gunner, which produce downloadable software and other items at the heart of the “3D printable gun” debate.
The First Amendment issues involved are substantial, according to Widener Commonwealth Law School Professor Michael Dimino, and could help decide exactly what constitutes “speech” – be it a computer code or some other language discernable by humans.
There are also obvious Second Amendment implications, as well as more practical concerns by law enforcement over firearms that come with no records or serial numbers and are virtually undetectable to X-ray scanners.
What is 3D printing?
Three-D printing, or “additive manufacturing,” refers to the process of building a real world, three-dimensional object using various materials, usually some form of plastic or resin.
It is not accomplished with a home printer like one would use for documents, but rather with an entirely different machine that stacks layers of material based on a computer model drawn using a computer aided design program, or CAD.
Brian Walt, owner of Walt 3D in King of Prussia, said there are three basic ways to go about the process: Fused Deposition Modeling, Stereolithography and Selective Laser Sintering. The most common and commercially available is FDM, said Walt, which involves heating thermoplastic filaments of various compositions and depositing them in a new shape on the build surface.
“If you can imagine something like a weed-whacker line, essentially, a little bit thicker, that is pulled into there, it’s melted, and then it’s pushed through a really small nozzle ranging from an opening of 0.1 millimeter to 0.6 (millimeters) at the max, and it kind of prints layer-by-layer,” he said.
Walt said the size, density, shape of in-fill and other factors can be programmed so the user gets exactly what they’re looking for. After that, it is simply a matter of executing the program and letting the machine do the work.
The applications for such technology extend to just about any realm one can imagine. Three-D printing remains a staple for manufacturers seeking a cheap and easy way to prototype products, but it has also enjoyed success in health care, entertainment, mechanics, architecture, textiles, electronics and even food.
Though additive manufacturing has been around in one form or other since the 1980s, Walt said it really only started to enter the consumer market around 2009 or 2010 with smaller, more affordable models designed for the home user.
“Up until that time, printers were relatively very expensive, $10,000, $20,000-plus for a nice machine,” he said. “Now, you can go on Amazon and buy a decent machine for sub-$1,000, so it makes the technology much more accessible to people, in both good and bad ways.”
One of those “bad ways,” as the federal government saw it, became reality in 2013, when Defense Distributed put out plans for 3D-printed firearms on its website “for free download by anyone in the world,” according to a 2016 Fifth Circuit Court opinion.
The plans were quickly challenged by the State Department, which sent a letter to Defense Distributed in May 2013 requesting the files be removed on the grounds of violating the Arms Export Control Act and its implementing regulation, called the International Traffic in Arms Regulation.
The State Department contended the files were potentially related to “technical data” of defense articles under the United States Munitions List and that making them available globally over the Internet effectively constituted an “export” without prior State Department approval.
Defense Distributed complied with the request, though hundreds of thousands of downloads had already taken place by then and the files have remained available since through other third-party file-sharing websites.
“They were trying to stop this company from being able to (distribute) their plans, but it’s been out there a couple years,” said Delaware County Deputy District Attorney George Dawson, chief of the Anti-Violence Task Force. “Once something’s out on the ‘net, there’s no way of pulling it back.”
Defense Distributed also has plans for milling metal AR-15 lower receivers through computer numeric control, or computer-directed milling, and sells its own desktop CNC mill called the “Ghost Gunner.”
As the Fifth Circuit explained, the “lower receiver,” which typically contains the serial number, is the only part of the rifle legally considered a “firearm” under federal law. All of the other parts – such as the magazine or barrel – are not regulated and can be legally purchased without a background check or registration.
“The law provides a loophole, however: Anyone may make his or her own unserialized, untraceable lower receiver for personal use, though it is illegal to transfer such weapons in any way,” the opinion states.
That is only partially accurate, however. While federal law does preclude an unlicensed manufacturer from making a gun with the express purpose of selling it, there is no prohibition on selling a firearm that had previously been made for personal use, nor does there appear to be any regulation requiring such guns to be marked for identification, such as a serial number.
Manufacturing of such firearms is typically accomplished by purchasing an “80-percent” lower receiver that “looks quite a bit like a lower receiver but is not legally considered one and may therefore be bought and sold freely,” the opinion noted.
Some additional milling is required to finish the receiver and the result, combined with the other, unregulated gun parts, is in an unserialized, untraceable rifle.
“With CNC milling files supplied by Defense Distributed, Ghost Gunner operators are able to produce fully functional, unserialized, and untraceable metal AR-15 lower receivers in a largely automated fashion,” according to the opinion.
But, the court added, “Everything discussed above is legal for United States citizens and will remain legal for United States citizens regardless of the outcome of this case.”
The Fifth Circuit opinion stemmed from a Defense Distributed lawsuit against the Defense Department on First and Fifth Amendment grounds. The suit asked the U.S. District Court for the Western District of Texas to grant a preliminary injunction against the government applying ITAR’s prepublication approval requirements to the files until the case had been resolved.
The District Court denied the injunction, finding the government’s interest in national defense and national security outweighed the company’s interest in its constitutional rights. That order was upheld by the Fifth Circuit, which found the Texas court did not abuse its discretion.
Reversal of fortune
Wilson, a Libertarian, recently told Wired Magazine that he believed Hillary Clinton would win the presidential election in 2016 and lead a massive crackdown on gun ownership. He was prepared to dump all of his information to the Internet, court order or no, then “call a militia out to defend the server, Bundy-style,” according to Wired.
But that did not happen. Instead, the Defense Department under Donald Trump settled the case, providing Wilson with a letter indicating the files were not subject to licensing under ITAR and had been approved for public release.
Defense Distributed was poised to release its files Aug. 1, but U.S. District Judge Robert Lasnik, of the Western District of Washington, granted a motion for a temporary restraining order filed by Shapiro and other attorneys general due to the “possibility of irreparable harm because of the way these guns can be made.”
“This is a tremendous win for public safety and common sense,” said Shapiro in a release. “It is temporary – and we’ll be back in court immediately seeking a preliminary and permanent injunction. But this is a victory for law enforcement in Pennsylvania and throughout the country to enforce and protect our state firearms laws and our citizens.”
The case goes back to court Friday.
Code as speech?
Dimino, who teaches constitutional law and the First Amendment, said the case presents substantial issues in those respects, chiefly because it is still unclear exactly how much power the government has to ban the distribution of information when that information can lead to violent consequences.
“For example, the government can ban me from killing somebody, but if the government were to try to ban me from writing a book about killing someone, (it) would face a First Amendment problem,” he said. “The people who are making a First Amendment claim here are making a kind of analogous claim to what I’m saying. They’re saying you might be able to regulate the gun itself, but it’s a much different thing to regulate communications technology – a kind of computer code or instruction manual or something like that – that talks about how to make a gun.”
The crux of the argument may lie in what constitutes “speech,” according to Dimino. If the plaintiffs can show that a computer code does fall under that heading, the government might have a hard time showing that it needs to be regulated.
“Part of the problem with this is that it’s not clear exactly what we should treat as speech and what we shouldn’t treat as speech,” he said. “If you’re talking about a book that instructs humans how to do something, then it’s pretty clearly speech. …A computer code is not in a language that can be understood by humans, and so it seems a little different. But I don’t know whether there’s a real First Amendment difference between writing something in some language that humans can understand and writing something that accomplishes the same thing when read by a computer.”
Another issue is that the information, or at least what has been released so far, is already out there, said Dimino.
“So you might be able to stop some people from uploading or distributing this kind of computer code, but if somebody in a foreign country or somebody offshore posts the same type of information, then whoever wants to get it will be able to get it,” he said. “Then it seems to make a whole lot less sense for the government to ban Person A from distributing the material if somebody who wants it can just get it from Person B.”
Fear of a plastic planet
Congress passed a law in 1988 making it illegal to own “undetectable handguns” that can pass through X-ray scanners. The law came with a 10-year sunset provision and has since been extended three times – for five years in 1998 and for 10 years in 2003 and 2013.
Some plastic gun designs side-stepped this rule by adding a removable metal block that was not necessary for the firearm to function, but U.S. Sen. Bill Nelson, D-Fla., introduced a bill in June that would close that loophole.
“There’s 300 million guns, guesstimated, on the streets of America today,” said Upper Darby Police Superintendent Michael Chitwood. “Now the focus is on these 3D firearms. AR-15, 9 mm, you name it, you can make it. And my thing is when you look at the gun violence in America today – and this is not anti-Second Amendment, this is common sense – to go on the website and be able to use your technical skills to learn how to make one of these weapons is absolutely insane in my opinion.”
“The fact that we wouldn’t be able to track them because they have no serial numbers is concerning and I’m sure the ballistics on these things – you wouldn’t be able to do the traditional matching of shells and rifling and all that fun stuff,” said Dawson. “That’s why they call them ‘ghost guns.’ What better for a criminals and what worse for law enforcement?”
Walt believes the prevalence of 3D printing will only continue to grow. He expects a printer will be in one of every five American homes within a decade, maybe sooner.
“I think the biggest hurdle is going to be for the average person to actually learn CAD software,” Walt said. “I don’t think you’re going to need to, per se, granted you can just go online and download the files, but running and operating a 3D printer, once you have things dialed in … I can have a part grabbed offline and be printing within 20 minutes, half an hour.”
Walt said he hopes to help usher in that age by offering a printer and online class package to younger customers at a price point below $500, roughly the same price as a gaming console.
“If you’re responsible enough to use it, which I think most people will be, I don’t think there’s going to be any big problems,” he said. “You can 3D print a firearm, but most of the ones I’ve witnessed, you can only get between one and 10 rounds out of them before they’re shot. There’s only so many bullets that a plastic frame or a plastic structure can take before they start to crack or before they start falling apart.”
Still, as Chitwood and Dawson pointed out, one shot might be all a criminal needs to commit a murder, hijack a plane or engage in some other nefarious conduct.
“I guess it won’t be something that they go running around (shooting) multiple times, but an untraceable gun, once you have a target, that’s a scary, scary thought,” said Dawson. “And as things get better and easier and cheaper, it’s only a matter of time where the printer isn’t going to be $4,000, it’s going to be $400, and the gun’s not going to last a week, it’s going to last a lifetime. It’s only a matter of time, I think, before technology puts it in that situation.”
Walt said the biggest danger would be to the transportation industry in the case of someone sneaking a plastic gun onto an airplane. The Transportation Security Administration reportedly found one such weapon and five rounds of live ammunition in a carry-on bag in Reno, Nev., in 2016, and components of plastic guns in at least three other situations.
Walt said the current focus on 3D-printed guns is something of a double-edged sword for his community. While it has certainly helped educate people about the technology, he said it also isn’t being shown in the best light at the moment.
But he is hopeful that the boon this technology could represent for humanity is not overshadowed by the current debate and continues to flourish as it becomes better understood and more widely available.
“You can go out and purchase a firearm and carry it into public places. People do it all the time and they’re responsible enough. But if there’s just going to be one person that really (messes) it up for everyone, that could be the issue,” he said. “It’s a very relevant topic, but I feel like, as with the automobile, the Internet, other technology, it’s going to have its pitfalls and it’s kind of inevitable, unfortunately. But at the same time, it could be used in a fashion for good rather than bad.”