Digital Gun Blueprints a First Amendment Issue

The issue of 3D downloadable firearms has exploded onto the national news.

Many Americans have learned for the first time that with advancements in computer technology it is possible for anyone, who has a computer and a 3D printer, to make his own firearm.

Last Tuesday, Aug. 1, was supposed to be the dawn of a new age. Cody Wilson, the man behind the development and sharing of this new technology had posted on his firm’s website, “The age of the downloadable gun formally begins.”

Emboldened by his recent settlement with the U.S. Department of State permitting and licensing his endeavor, Wilson promised to make his digital blueprints for the “do-it yourself” construction of firearms available to the public by then.

However, gun control advocates sprung to action before he could do it.

Attorneys General from eight states, including Pennsylvania, filed suit in the U.S. District Court for the Western District of Washington, against Wilson, his firm, Defense Distributed, and the United States Department of State.

They requested an emergency, nationwide temporary restraining order prohibiting Defense Distributed from making its digital blueprints available to the public.

A U.S. District Court judge granted their request by ordering the State Department to reverse steps it had taken to pave the way for the dissemination of these digital files.

The State Department, after conducting a five-year long review and as part of a settlement it entered into with Defense Distributed in a different federal court involving the potential exporting of these files, had recently concluded their dissemination would not provide military advantage to foreign adversaries and thus are not subject to export regulations.

It’s strange that the State Department had entertained the idea that national security interests could be harmed by the dissemination of digital blueprints for non-military small arms.

Stranger still that the state attorneys general and a federal judge believe they have the legal authority to try to nix a settlement entered in a different court involving an issue – arms control – that the constitution clearly reserves to the federal government and to try to override the decision made by the executive branch on a matter the law clearly states is not subject to judicial review.

Although the courts have held the Arms Export Control Act (AECA), from which these arms control regulations originate, “was enacted to permit the Executive Branch to control the export and import of certain items in order to further ‘world peace and the security and foreign policy‘ of the United States,” we now have state attorneys general and a U.S. District Court judge ordering the federal executive branch to rescind actions it has taken under its express statutory authority.

This is judicial activism and is wrong.

The lawsuit filed by Pennsylvania Attorney General Josh Shapiro in the U.S. District Court for the Eastern District of Pennsylvania is just as wrong.

Not only does it contain several misleading statements of fact such as “imminently members and others will be able to download an actual, working gun…” and, “They are selling actual working guns…” and, “the Defendants deliver your gun to you directly through your internet connection … No ID, no background check, no waiting period.”

It’s as if Cody Wilson is on one side of your computer holding a gun and he reaches through your computer and hands it to you.

Furthermore, and much to the surprise and chagrin of gun control advocates, Pennsylvanians who are not legally disqualified from possessing firearms have the right to make their own nonmilitary, small-arm firearms for personal use, whether from a blueprint handed down by a grandfather, found in a local library or now via computer.

We have had this right since before the founding of our country. And contrary to what Shapiro would have us believe there is no ID, background check or waiting period required.

What Defense Distributed would like to do is perfectly legal.

That’s why although AG Shapiro alleges in his lawsuit that Defense Distributed is violating Pennsylvania criminal law, he has not filed criminal charges; they would surely be dismissed. Instead he has filed action under some sort of vague, common law public nuisance claim and the Unfair Trade Practices and Consumer Protection Law.

Ask the attorney general how many complaints he has received from unhappy consumers of 3-D downloadable firearms. I’ll bet the answer is none.

The lawsuits brought by the state attorneys general are of dubious legal merit.

Regrettably, it appears these state officials will use the law in a way it is not intended to try to obtain their policy goals.

The Attorney General of Washington bluntly acknowledged he will, “make it as difficult as humanly possible to access this information.”

That state attorneys general would sue individuals and corporations for engaging in lawful activities is a blatant misuse of the law.

PennLive Opinion contributor Marc A. Scaringi, of Camp Hill, is an attorney in private practice in Harrisburg. His work appears biweekly on PennLive Opinion.