The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week the U.S. Department of Defense and U.S. Department of State settled a lawsuit and agreed to end their prior restraint of distribution of computer files for the production of 3D printed firearms.
The "International Traffic in Arms Regulations (ITAR)" are a collection of regulations covering the export of military weapons from the United States. The regulations are based on the 1976 Arms Export Control Act. The ITAR export controls apply to all arms on the U.S. Munitions List ["USML"], which is created by the State Department. An ITAR export permit costs at least $2,250 annually. Starting in 2012, the Department of Defense issued regulations asserting that many U.S. gunsmiths are required to obtain ITAR export permits even if they never export anything. Details are available on the website of Prince Law Offices, P.C., which specializes in firearms commerce regulation.
Under the Obama administration, the U.S. Munitions List grew to include many ordinary firearms, as well as the computer files for 3D printing of ordinary firearms. In 2015, a lawsuit against the ban on distributing 3D printing files within the U.S. was brought by the Second Amendment Foundation (a civil rights litigation organization) and by Defense Distributed (a producer of 3D printing files). Plaintiffs' attorneys included Alan Gura (winner of the Heller and McDonald cases) and Josh Blackman (law professor at South Texas College of Law). There were many arguments in the case, but the principle one was that ban constituted a prior restraint of speech, contrary to the First Amendment.
The plaintiffs sought a preliminary injunction agaisnt the restraint on speech. The U.S. government prevailed in the District Court, and before a Fifth Circuit panel. A petition for rehearing en banc was rejected by a 9-5 vote. Fifth Circuit Judges voting to grant the petition were Jones, Smith, Clement, Owen, and Elrod. Voting against the petition were Stewart, Jolly, Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa. In January 2018, the U.S. Supreme Court denied the petition for certiorari. The preliminary injunction having been utterly defeated, the next stage for the case was factual development in district court. In the view of attorney Alan Gura, the main reason for the loss on the preliminary injunction was reluctance to upset the status quo, rather than an expectation that the government could prevail on the merits of the First Amendment issue. Documents in the case are available here.
In May 2018, the Trump administration proposed revising revise the ITAR regulations. The move for regulatory reform actually began under the Obama administration, but the proposed reforms were never published. Now they have been. Export controls for many ordinary firearms and accessories will be removed from the ITAR list. Exports of such items will instead by controlled by the Department of Commerce. Among the items remaining under the ITAR system are automatic firearms, firearms of greater than .50 caliberr, magazines with more than 50 rounds, and sound moderators (a/k/a "silencers"). Non-automatic firearms of.50 caliber or less will no longer be covered under ITAR; among the firearms no longer under ITAR is the semiautomatic AR-15 rifle, the most common rifle in American history. Its typical calibers are .223 and .308–well under the new .50+ caliber rule.
Accordingly, the government defendants revisited the Defense Distributed case. If a particular arm (e.g., the AR-15) is no longer part of ITAR, then it would be illogical for ITAR to be applied to instructions for making the arm. Under today's settlement agreement, plaintiffs and others may freely publish 3D printing instructions for firearms that are not covered under ITAR. Restrictions on distribution of 3D printing information for items that are still under ITAR, such as machine guns or rifles over .50 caliber, remain in place.
[This post was revised on July 11 to more fully explain the procedural history.]