The Framers Did Not Know From 3D-Printed Guns. So How Can They Be Covered by the Second Amendment?
A former congressman suggests that homemade plastic guns can be banned because they did not exist in 1791.
Steve Israel, who tried to restrict 3D-printed guns when he was a congressman, is not happy that the Justice Department has abandoned efforts to censor the software required to produce such weapons. In a New York Times op-ed piece, Israel urges his former colleagues to pass legislation aimed at putting this genie back in the bottle. Specifically, the New York Democrat wants Congress to require that "printable weapons have components necessary for their operation that make them detectable." He addresses possible constitutional objections with this closing non sequitur: "After all, the people who used quills to write the Second Amendment couldn't comprehend that one day guns would be produced by 3-D printers."
The Framers probably did not anticipate stun guns or semi-automatic pistols either, but that does not mean the Second Amendment has no bearing on the constitutionality of attempts to ban or restrict them. "Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search," the Supreme Court ruled in the landmark 2008 case District of Columbia v. Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Court reiterated that point in 2016, rejecting the premise that a state ban on stun guns raised no Second Amendment issues because Tasers did not exist in 1791.
Israel also mentions the "constitutional free-speech right to share computer codes" asserted by Defense Distributed, the company whose software the DOJ recently agreed to allow online without the threat of criminal charges. But he offers no response to that claim. Presumably he would point out that the people who used quills to write the First Amendment couldn't comprehend that one day a network of computers would make it possible to communicate electronically with people around the world, let alone that the exchanges might include instructions for making stuff at home with widely available equipment.
By Israel's logic, Americans have a right to own flintlock rifles, to circulate literature printed on hand presses, and to prevent the government from rummaging through their diaries and personal papers for no good reason. But the Second Amendment does not cover plastic guns made on 3D printers, the First Amendment does not protect speech on the internet, and the Fourth Amendment has nothing to say about the security of information stored on computers, because the Framers knew nothing of such things.