3D Printing Ghost Guns and The First Amendment

Introduction

In April 2021, President Biden announced six initial actions to address the gun violence epidemic. One of these directed the Justice Department to issue a proposed rule targeting "ghost guns," self-assembled firearms that are difficult to trace. This rule is now going through notice-and-comment (with comments due August 19, 2021), and is supported by gun violence prevention advocates. The administration’s full plan targeting gun violence was unveiled on June 23, 2021.

3D-printable guns, which qualify as "ghost guns," and their underlying files are a contentious topic in the tech industry. Some support the hosting of ghost gun files without overtly invoking the Constitution—they support interesting applications of 3D printing, rather than defending the legality of owning a home-built gun or invoking freedom of speech. When invoking the Constitution, some ghost gun supporters are troubled by the Second Amendment implications of regulations or a ban. However, others claim that this fight takes place on the First Amendment battleground, noting similarities to Bernstein v. U.S. Dept. of State, which established that software source code is First Amendment-protected free speech.

Others are wary of allowing ghost guns to become more ubiquitous. Although assault rifles are currently impractically difficult to home-build, given the current (permissible, as of April 2021) state of distributing ghost gun files, some hypothesize that the gun market will grow as the drug market has with the advent of the dark web.

State of the Law and Case History

The cases setting the stage for ghost gun legality involved Defense Distributed, the primary creator and distributor of 3D printable gun files. Amid the numerous controversies over the website and its founder, the following cases best illustrate the recent history of the discussion and debate on ghost gun litigation, and whether ghost gun files qualify as protected free speech.

Defense Distributed v. U.S. Dept. of State

The first case series, Defense Distributed v. U.S. Dept. of State, arose from the company’s claims that prepublication approval requirements for ghost gun files violated their rights to free speech, to keep and bear arms, and of due process. Defense Distributed’s request for a preliminary injunction (which would allow them to publish the files without approval) was denied. This decision was affirmed on appeal, and the Supreme Court declined to hear the case. However, on remand, Defense Distributed secured a settlement with the State Department, which then removed ghost gun files from the U.S. Munitions List (allowing the files to be freely distributed).

The decision on appeal notes that ordinarily, “the protection of constitutional rights would be the highest public interest at issue in a case,” acknowledging the hosting of ghost gun files as potentially protected speech. However, the court goes on to balance this with the State Department’s “very strong public interest in national defense and national security.” In considering this balance, the court notes that Defense Distributed’s rights will only be violated “in the meantime,” (that is, until they prove they are entitled to an injunction), whereas if they are allowed to publish the files, national security may be harmed permanently, since the files will remain online “essentially forever” on “websites such as the Pirate Bay.”

The dissent to that decision notes that speech is entitled to higher constitutional protection than the district court gave it, and that interference with First Amendment rights “for any period of time, even for short periods, constitutes irreparable injury.” The dissent also points out that content-based speech-targeting laws are “presumptively unconstitutional,” and that the State Department barely disputed that regulating ghost gun files is “pure content-based regulation.” Further, it characterizes the licensing scheme as a prior restraint on speech.

Because this line of cases ended in a settlement, the dissent’s arguments were never given legal weight. However, since hosting ghost gun files is now permissible, it is difficult to say whether Defense Distributed’s First Amendment rights were eventually found to outweigh the State Department’s national security interest.

State of Washington v. U.S. Dept. of State

Immediately after the 2018 settlement was finalized, it was challenged by several state attorneys general. In State of Washington v. U.S. Dept. of State, the district court enjoined the State Department’s rule removing ghost gun files from the U.S. Munitions List (and vacated the settlement letter allowing distribution of the files).

Recently, this order was vacated, allowing the distribution website to be relaunched in April of this year. This was based on Congress’ choice to make both designation and un-designation of an item as a defense article judicially unreviewable. A dissent questions why the State Department hid their settlement with Defense Distributed from the public until after its rule was through notice-and-comment, and notes a key difference between 3D gun files and other munitions removed from the list—their wide availability to the public.

Because the first decision enjoins the removal of the files from the munitions list on APA grounds (“arbitrary and capricious”) without meaningfully addressing the “[ir]relevant” First Amendment question, and the recent decision vacates this order based on the judicial reviewability of such a decision, the First Amendment question was not settled by the Washington line of cases.

Conclusion

It seems certain that hosting and distributing ghost gun files qualifies as speech, comparable to the source code distributed in Bernstein. However, whether national security interests can trump this speech interest is an open question, since Defense Distributed v. U.S. Dept. of State ended in a settlement and the Washington line of cases did not turn on First Amendment concerns.

Today, as evinced by the online status of Defense Distributed’s file-hosting website, it is legal to host and distribute ghost gun files. The rule currently going through notice-and-comment does not challenge this, instead targeting the sale of other necessary parts and improving tracking for ghost guns. Even pending further litigation, existing ghost gun files are probably here to stay.