Can New Jersey Ban the Distribution of Computer Files That Can Help Make Guns?
Defense Distributed and the Second Amendment Foundation insist that law violates the First Amendment, Commerce Clause, and Supremacy Clause.
A hearing is scheduled on January 15 in a U.S. District Court in Austin, Texas, in a federal lawsuit over the state of New Jersey's law that bars distributing digital information that could assist in making a gun to anyone in that state who is not a registered or licensed gun manufacturer.
Defense Distributed, a company founded by Cody Wilson, inventor of the first plastic 3D-printed pistol, and dedicated to distributing hardware and software aiding in home gunsmithing, is involved in a multi-front legal battle over the distribution of their digital files. In this particular case, they are insisting that the Jersey law "violates the First Amendment, Commerce Clause, and Supremacy Clause."
Their argument in Defense Distributed and Second Amendment Foundation vs. Gurbir Grewal (New Jersey's attorney general) seeking a temporary restraining order and preliminary injunction against enforcing the law is that New Jersey has:
enacted a criminal law for the purpose of silencing one specific entity's speech…Proof lies in the words of the New Jersey Governor that signed the bill and the Attorney General charged with enforcing it. They are not hiding from the fact that New Jersey created a speech crime for Defense Distributed in particular. They are embracing it. New Jersey's Governor signed Senate Bill 2465 at a public ceremony with Attorney General Gurbir Grewal and the bill's leading legislative sponsor, Senator Joseph Cryan….The official statements delivered in conjunction with Senate Bill 2465's enactment prove that this law is an integral part of the censorship effort against the Plaintiffs…This is not a matter of inference. The Governor and Attorney General both said so expressly and repeatedly, in no uncertain terms.
Their argument is based on the principle that computer code counts as speech protected by the First Amendment. As the suit says, "New Jersey's law obviously imposes content-based speech restrictions, in that its penalties apply only to speech with this content: 'digital instructions' that 'may be used to program a three-dimensional printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component.'"
In addition, "the statute covers not just actual distribution of the 'instructions' at issue, but also an 'advertise[ment]' of instructions or an 'offer' of instructions. But of course, if no actual delivery of the instructions occurs, none of the state interests that could possibly justify the statute come into play."
The attorney general of New Jersey explicitly said regarding the law in question that:
bad actors were trying to take advantage of loopholes because no law squarely addressed printable guns or ghost guns. So we had to rely on other laws, like our public nuisance law or our assault weapons law, to fight back…a law right on point strengthens law enforcement's hand even more. And so today, there is no question that printable guns and ghost guns are deadly, and selling them in New Jersey is illegal. And that's why I'm so proud to support Governor Murphy's efforts and the legislature's efforts to close those loopholes, to stop the next Cody Wilson, to fight the ghost gun industry…
In addition to the speech claims, the suit further insists New Jersey's law violates the commerce clause as that clause "does not allow a state to 'regulate conduct that takes place exclusively outside the state.'" Defense Distributed further argues that the law violates the Supremacy Clause by attempting to outlaw certain acts legal under the federal Communications Decency Act of 1996 and to override a federal decision to license Defense Distributed to distribute computer files that can facilitate gunmaking.
New Jersey had been threatening Defense Distributed with such legal actions even before the new law at issue in this suit was passed, as Attorney General Grewal indicated above. This suit insists that since "[New Jersey's] demands could not allege that the speech at issue violated any statute because, at that point, no state had dared to enact such a law" the state passed the law merely to bedevil them. This injunction request is meant to stop them from getting away with it.