The fight over 3D-printed gun plans has nothing to do with the Second Amendment

The past week has seen a media frenzy on the subject of gun blueprints. Over a short period of time, the only thing that has become clear with this issue is that people are confused. Headlines waver between discussing “files,” “3D guns,” and “undetectable firearms.” All, quite obviously, are very different things.

But lines are becoming blurry, with commentators bouncing between the First and Second Amendments. Let us make one thing clear: This issue has everything to do with the First Amendment, and if we continue to confuse it with the Second Amendment, we will damage both.

This entire controversy stems from one thing: The State Department’s forced removal of digital files from Defense Distributed (DefDist)’s website. There was no seizure of guns, no involvement of the ATF, and no physical stockpiles to speak of. The resulting lawsuit was one entirely predicated on the government’s unconstitutional restraint of DefDist’s speech.

Nonetheless, a partisan group of state attorneys general sued to stop the release of DefDist’s files in a lawsuit that yammered on about “undetectable firearms.” The media, too, shifted from discussing “3D printable gun files” to the misleading “3D printed guns,” and ultimately to the inexplicable “3D guns” (most people having been under the impression that existing in 3 dimensions was a prerequisite to being a gun).

It seems this shifting of the focus from what is actually at issue (distribution of digital files) to the much more polarizing subject of guns has been intentional. Our Constitution rightly defines speech broadly. Any form of expression is presumably protected by the First Amendment. For example, booby traps, landmines, and various other explosives are illegal, yet you can still find the Anarchist Cookbook on Amazon. It is undoubtedly illegal for most people to manufacture a machine gun at home, and yet, here is the 1985 publication of “The Do-it-Yourself Submachine Gun: It’s Homemade, 9mm, Lightweight, Durable-And It’ll Never Be On Any Import Ban Lists!” Cooking meth is certainly illegal, but this publication on the synthesis of amphetamines and cannabinoids is not.

The Second Amendment, though, has enjoyed less thorough protection.

[Opinion: 3D-printed guns were always going to be legal]

Designs, recipes, and plans are all forms of expression protected by the First Amendment. Federal courts have rightly pointed out that “a recipe is no less ‘speech’ because it calls for the use of an oven, and a musical score is no less ‘speech’ because it specifies performance on an electric guitar.” In the same way, a gun’s design — which can be as artistic as it is mechanical — is no less “speech” when it is embodied in a digital file as compared to a paper drawing.

There are no “guns” at issue here, only designs embodied in various digital formats. When someone takes one of these designs and uses a 3D printer to make a gun, they have to make sure they do it legally. The fact that it is illegal to assemble an undetectable gun is not a reason to go after designs that could conceivably be illegally assembled. No matter how illegal it is to synthesize flunitrazepam (the date rape drug), you’ll still find its exact composition in chemistry books. Does this mean that chemistry books are breeding grounds for illegal synthesizable narcotics? I’d certainly say not, but with the current state of political theater, one never really knows.

No matter how entertaining it can be to watch the chaotic circus of political theater, we cannot allow this line to be smudged between the First and Second Amendments. Despite its clear text, since the 1930s we have seen countless increasingly restrictive interpretations of the Second Amendment, allowing the government to ban entire classes of arms.

To impart the Second Amendment’s presently fractured and muddy legal framework into the context of gun designs would mean importing presumptions in favor of regulation. We have watched states ban common firearms and be upheld by deferential federal courts who consider the phrase “gun violence” enough to justify virtually any use of state force. If we allow this discussion, which concerns only gun designs, to be muddled with our problematic legal framework of gun restrictions, it could lead to a simultaneous weakening of gun and speech rights.

If the narrative were to develop that it is acceptable to restrict access to gun designs because of their utility in making guns, it could easily spread to other contexts. If we want to avoid a world where the sentence “cut barrel aft of sixteen inches” can be made criminal because it might be combined with a shotgun, we need to make sure we don’t confuse gun designs with the act of producing an illegal gun.

3D printing is an incredible emergent technology that has improved countless lives. Let’s not allow fear and ignorance to ruin it.

Matthew Larosiere (@MattLaAtLaw) is a legal associate at a Washington, D.C., think tank. He holds a J.D. and LL.M in taxation and is licensed to practice law in Florida. He is also a Young Voices Advocate.

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