Next Tuesday, a federal judge based in Washington state will hear arguments about the efforts of 19 states to block a website from offering 3-D-printer gun blueprints, an issue that touches several constitutional amendments and has started a national debate.
On July 31, Judge Robert S. Lasnik of the United States District Court for the Western District of Washington 
Eight states and the District of Columbia filed for the restraining order against the current State Department and the Defense Distributed group founded by Cody Wilson, which had expected to make the plans officially available on its website. (Eventually, 19 states and the District of Columbia became part of the action.)
The legal fight over the plastic gun plans goes back to 2013 when Wilson created a huge stir by printing out a functional handgun using a 3-D printer. Wilson then put the plans on the Internet for free, and they were quickly downloaded by more than 100,000 people before legal actions by the federal government stopped the official downloads. Both sides went to court, and the Trump administration agreed to the July settlement that allowed Defense Distributed to publish the plans on the Internet in August.
In his court filing, Washington state attorney general Bob Ferguson said that among the arguments for the restraining order were 10th Amendment state-sovereignty violations. “The structure and limitations of federalism allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons. The police power is a critical function reserved to the States by the Tenth Amendment,” Ferguson said. Other arguments referenced three alleged violations of the Administrative Procedure Act.
Judge Lasnik agreed to issue the temporary restraining order based on the Administrative Procedure Act claims, citing that the federal government didn’t follow the proper procedures when it took the gun plans off an official munitions list. Lasnik also ruled that plaintiffs could be harmed if the plans were legally available.
“If an injunction is not issued and the status quo alters at midnight tonight, the proliferation of these firearms will have many of the negative impacts on a state level that the federal government once feared on the international stage,” he said.
After the ruling, some scholars were focused on the broader First Amendment free-speech implications of the case, arguing that the computer code involved in the downloadable plans was protected speech.
“The threshold question is whether computer code is a form of speech at all. This question raises philosophical questions about whether computer code written in a programming language is effectively an object — not ordinarily regulated by the First Amendment — or is more like a set of written instructions from one person to another, which would typically be considered a form of speech,” said Harvard Law professor Noah Feldman.
Feldman also pointed to a second constitutional question: “whether speech that instructs the public how to commit a crime is subject to free-speech protection.” While Feldman noted the Supreme Court hasn’t decided either question, he believed the Court would consider a broad ban on 3-D gun prints as “content-based” and subject to the strictest type of legal tests.
In 2016, the Fifth Circuit Appeals Court considered the First Amendment question when Wilson wanted the regulations suspended that barred the publishing of his 3-D gun plans. A divided panel sided with the Obama administration, citing national security concerns. Judge Eugene Davis said that one of the difficult questions in front of the court was “whether the 3D printing and/or CNC milling files at issue here may constitute protected speech under the First Amendment,” but that a district court would need to eventually consider that question on remand.”
Judge Edith Jones, in her dissent, questioned the majority’s decision to bypass the First Amendment question. “The majority leave in place a preliminary injunction that degrades First Amendment protections and implicitly sanctions the State Department's tenuous and aggressive invasion of citizens' rights,” she said. “This abdication of our decision-making responsibility toward the First Freedom is highly regrettable. “
In an April 2017 article about the Fifth Circuit decision, the Harvard Law Review argued that broader First Amendment issues were at stake. “If CAD files were to fall within the coverage of the First Amendment, the government’s ability to regulate the content, safety, and use of these files would be sharply limited. Because these files define the specifications of tangible objects, the government would thus also be limited in its ability to regulate the physical world — from houses to bioweapons.”
“This awesome expansion of the First Amendment counsels that CAD files should be treated true to their function — which is neither expressive nor communicative — rather than their form,” it concluded.
Scott Bomboy is editor in chief of the National Constitution Center.
