Sunday, July 29, 2018

Can (or Should) a State Try to Ban Virtual Guns?

At what temperature
 do Internet files burn?

 "States do not have the power to censor speech or commerce in other states, especially when that commerce is licensed by the federal government." --Defense Distributed and the Second Amendment Foundation v Gubir Greywal and Michael Feuer.

"...When it comes to molding public opinion, nobody on either side ever concerns themselves with narratives based on facts..." --Mike the Gun Guy, aka Michael Weisser

Gun controllers and blue state law enforcement officials are trying to block the publication of additive manufacturing gun code. But gun designs, whether on paper or on the Internet, are not real guns. There is no domestic "gun code control law" at the Federal level; the Federal rule that for several years blocked Defense Distributed was ITAR, which controls the export of defense technology. I don't think states or cities can regulate ideas based on legal theory whipped up out of whole cloth but which are based on the notion of prior restraint unless the situation narrowly fits the bill for prior restraint. Further, in spite of the whipped up hyperbole, including panic by some in law enforcement, there is no immediate public danger overriding 1A protections, since no one has demonstrated that 3D guns are being used in crimes (not to mention, proved that reliable "AM", or additively manufactured, guns can be made in Joe's Garage.) This has got to stop, or at least pause, as cooler, technological and legal heads weigh in.

This issue goes back a few years.  Defense Distributed owner Cody Wilson has been involved in a protracted legal action with the United States regarding his publishing of code allowing someone to print an AM gun using a 3D printer. The original object of the fight, a handgun called the Liberator was a cumbersome and functionally primitive design and hardly a threat to national security. Sure, the technology will eventually get better and it's the technology which is a concern. The Feds asserted that Wilson's posting of AM plans amounted to an export of technology and therefore regulated under ITAR, the regulations used to control the export of arms, presumably for military purposes. This gambit is to keep the technology as well as the weapons out of the "wrong hands", so to speak. Ingenious malefactors can make guns out of the most primitive stuff, as the Vietcong did during our war in Southeast Asia, but there is no point to helping them do a better job of it.

Recently, however, Uncle Sam settled out of court with Wilson, agreeing that he could post the plans for guns and gun parts not deemed directly suitable for military purposes. The ears in Gun Nut Nation perked up when this rule excluded civilian versions of modern military rifles from the ITAR prohibited list. These so-called AR's are often referred to as "weapons of war" by the Anti-Gun Nut Crowd. Well, Uncle Sam is now on record as saying these are not weapons of war. I suppose close only counts in horse shoes and hand grenades. Be that as it may...

When the Feds relented on Wilson's demands to publish and licensed him to do so, several gun control organizations immediately went to court to stop him from posting AM gun design code. In a decision made last week, a Federal court in Texas denied the gun controller's request for an injunction. Meanwhile, Attorney General Grewal of New Jersey and city attorney Feuer in Los Angeles threatened DD with legal action if it goes online with the data.

In the latest legal volley and return (note added later, this was before the latest Federal injunction in this fast moving story), DD and its lawyers, with the Second Amendment Foundation, are suing Greywal and Feuer for infringing on DD's 1A and 2A rights and asserting that since Uncle Sam issued a license to publish, a state or city has no jurisdiction to override Federal arms regulations and ITAR. The Reason link has a direct link to the lawsuit in case anyone wants to read what the suit actually says. I'm not a lawyer so anything I say might be off target, but Alan Gura (the winning attorney in District of Columbia v Heller) and Josh Blackman are pretty keen ones.

Your average crook can do far better than a Liberator without buying a 3D printer and further, you cannot make an entire, credible AR with a common, 3-D printer that uses plastic ink. Cody Wilson printed the AR lower, not the entire gun; much of the gun is of traditional manufacturing and furthermore, the first few failed miserably.  I don't think a virtual gun, i.e., the design code, is the same as an actual gun and I think people have the right, as Uncle Sam now agrees, to have a virtual gun just as we have the right to any other concepts other than those explicitly restricted by law, i.e., information controlled by lawful authority of government (for example, the 1954 Atomic Energy Act, 1947 National Security Act, the law behind ITAR, etc). If someone actually makes an illegal gun in New Jersey or Los Angeles, or an already illegal undetectable gun, that's a different story and is within the purview of local or state government to regulate, consistent with established law. Virtual guns, or notions of guns, should be off the regulatory table other than via legitimate rulemaking such as ITAR.

I think this is a virtual fear rather than a real one and Mike Weisser seems to agree.There is no clear and present danger here to justify clearing the very high Constitutional bar against imposing prior restraint. What we are seeing is just a lot of additively manufactured panic.

"...What I hope all of this illustrates is that making a 3D printed gun is not easy, it is not quick, it is not cheap and it does not result in especially dangerous or deadly weapons. Not only is it cheaper to just buy a real gun in the United States, but it is also probably a lot faster to go buy one, even with any state-mandated waiting periods. ..."

Stay tuned.

note: I used Reason and Guns since they published a lot of this and it was easy to find links.

Hey, is there room for a 3D printer along side those drums?