New in Law and Contemporary Problems: The Right to Code and Share Arms

"Over the course of five hectic days, I would brief and argue four temporary restraining order (TRO) motions in four courts. I prevailed on the first three. The fourth court, alas, issued a global injunction that blocked our settlement. "

|The Volokh Conspiracy |

Law and Contemporary Problems published my new article, titled The Right to Code and Share Arms. Here, I discuss my five-year involvement with the Defense Distributed litigation. And the cases are far from over. Here is the abstract:

In 2014, I received an email out of the blue from Cody Wilson, the founder of Defense Distributed. The previous year, he had achieved international infamy for creating the world's first 3D-printed gun. In response, the State Department ordered him to remove from the internet the files that could be used to make that gun. Cody planned to sue the Federal Government for violating his rights under the First and Second Amendments, and for running afoul of federal export control law. And he wanted me to help.

Initially, I was skeptical. But after some research, I concluded that Cody had a strong case. I soon joined Defense Distributed's legal team, along with Matt Goldstein, an export control specialist, and Alan Gura, a constitutional litigator. We filed suit in 2015 in the U.S. District Court for the Western District of Texas. The next two years of litigation were quite exciting, largely unsuccessful, and mostly formulaic. The District Court denied our preliminary injunction. A divided panel of the Fifth Circuit affirmed. The en banc court split nine to five. And the Supreme Court denied certiorari.

Following the remand, however, the case took a positive turn. The District Court encouraged the parties to consider a settlement. Soon, we reached an agreement with the State Department. The Government would rescind the regulation that prevented Cody, and all Americans, from posting "technical data" about firearms to the internet. Or at least that was the plan.

On the eve of the settlement date, gun control groups and two dozen state attorneys general sought emergency injunctive relief to prevent Defense Distributed from posting the files online. Over the course of five hectic days, I would brief and argue four temporary restraining order (TRO) motions in four courts. I prevailed on the first three. The fourth court, alas, issued a global injunction that blocked our settlement. Prior to that decision, however, the files were available online and downloaded thousands of times. They remain readily available to this day.

This Article, written as the litigation continues apace, has three primary goals. First, it encapsulates the complicated, and somewhat confusing, posture of these cases. Second, this Article illustrates the folly, and indeed irrationality, of trying to censor the internet. Third, this Article explains how the political stigma of guns taints an important free speech issue that would otherwise receive widespread support.

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  1. “Second, this Article illustrates the folly, and indeed irrationality, of trying to censor the internet.”

    Who’s trying to censor the internet?

    Laws apply to individuals, companies, organizations, etc, not the internet.

    Like child pornography – the internet has never been prosecuted.

    And why do I have to explain this to a law professor?

    1. You have zero background on the case and issue, and Blackman, who has been writing about this for awhile assumed his audience was familiar.

      . In 2013, President Obama’s State Department sent a letter to Defense Distributed that its plans for distributing the Liberator might violate federal law, and that same year the State Department used International Traffic in Arms Regulations (ITAR), which are the rules to implement the Arms Export Control Act, to restrain the company from distributing the final design online.
      ITARs are generally used to prevent the sale of U.S military technology overseas, for items such as guidance systems for missiles, so their use to prevent the online distribution of a 3D printed plastic pistol was somewhat unprecedented, especially considering the worldwide gun market that produces superior firearms, no discernible demand for the unwieldy and inefficient Liberator, and a pre-existing a black market for more conventionally produced arms. In 2015, Defense Distributed sued the State Department. Although it was already a conceptual stretch to use ITAR to impose a ban on the distribution of unclassified computer code, the head lawyers in the case… making the case that computer code was information and that information was speech under the Supreme Court precedent of Sorrell v. IMS Health Inc. (2011).
      When the Trump Administration settled the case in August of 2018, it might not be because of President Trump’s pro-gun agenda, because he tweeted out that “looking into 3-D Plastic Guns being sold to the public. Already spoke to NRA, does not seem to make much sense!” The settlement was more likely because as Alan Gura has pointed out, that the government was not likely to win on the merits of the case, and this allowed the case to be settled without deciding on the merits. Not that the issue went away because after the settlement, many states and the District of Columbia promptly sued the Department of State to prevent the release of the code. A federal judge extended the ban on the files being online for download, but considering the nature of the settlement, Defense Distributed decided to just sell them through the mail, with the price being whatever the asker was willing to pay because as long as the files are not online, they are not being “internationally published”and they are, therefore, being legally distributed.

    2. Possibly because he understands English as she is spoke, you think it is clever to pretend you don’t, and you think pretending this blog is a court of law is even cleverer.

      1. That’s one of the wisest things you’ve ever said.

        1. I’m not always wise, but when I am, I am lucky 🙂

  2. What sane person would want to fire a plastic gun?

    All we need are a few horrific incidents of the gun blowing up for the gun grabbers to convince yet more people that all guns are dangerous.

    1. You sound like one of those grognards and greybeards who scoffed at Glocks in the late 80s.

      The liberator pistol is more of an idea, than a practicality. You see, it makes no economic sense to spend $3,000 for a 3D printing machine to make a single shot pistol (that still needs a nail as a firing pin) when a used M&P is $300 and is far superior. Not to mention the black market for criminals; they are not going to use a 3d printer. However, the idea it represents, that gun control is impossible, is the real threat to the left.

      1. This is just both sides trying to establish helpful precedents before the metal 3d printers hit the consumer market in a few years.

        1. That too. M1911 CAD models are out there for the still rather expensive metal CNC machines. Home creation of quality firearms is on the way for the non-technically minded. It is right now for those who know what they are doing.

        2. In which case, it seems like the plaintiffs would have benefitted from retaining a real lawyer.

          1. The plaintiffs weren’t anticipating winning by brilliant legal argument. They were anticipating either getting a lucky pick of judges, or wearing the defendant down with legal costs. Basically the same strategy the Lawful Commerce act was intended to foreclose.

            1. You think Prof. Blackman’s plan was to wear down the federal government with legal costs? That seems remarkably uncharitable, although it would be further evidence that the plaintiffs should have pursued better representation. And I’m not sure how the “Lawful Commerce act” plays into this.

      2. ” However, the idea it represents, that gun control is impossible, is the real threat to the left. ”

        Do you similarly favor throwing in the towel on child pornography, child abuse, drunken driving, and the like?

        1. Kirkland, guns are legal, that stuff is not….

          1. Speech, childrearing, and driving are legal — unless they become child pornography, child abuse, or drunken driving.

            Gun possession is legal — until it becomes a violation of laws related to guns.

            1. If not for child pornography, child abuse and drunken driving, what would you “Progressives” do for fun?

          2. What does that have to do with the point RAK was responding to, that “gun control is impossible”.

        2. Those are pretty inane comparisons. You are, no surprise, also making the logical fallacy here of making a false choice with them. That also a typical, and particularly stupid, retort from the gun control crowd.

          A more appropriate comparison would be Prohibition. Even during Prohibition, home brewing of alcohol was common and in some instances legal. This is like going after home brewers rather than bootleggers.

      3. Well there are always Zip Guns — not that I consider them safe.
        https://www.wikihow.com/Make-a-Zip-Gun

        1. That’s the thing, the home creation of guns is, and always has been, legal. Those technically minded can make guns if they would like, plenty of videos on how to do it too. I’ve seen a man take hundreds of aluminum cans, melt them down, and then make the lower receiver for an AR.

          1. I am not a big gun guy, but I could definitely see myself going down a long rabbit hole with one of these:

            https://www.grizzly.com/products/Grizzly-14-x-40-Gunsmith-Lathe-with-2-Spindle-Bore/G0824

            1. That baby’s big brother isn’t 75 feet from my office. Happily, company policy permits “government” work after hours using shop equipment.

              Unhappily, none of it can be weapons related. My last employer was more enlightened in that regard.

              I just wish I hadn’t needed to sell my own Smithy Granite back in ’08. Needed the money AND the space in the moving van.

  3. I never saw how under current First Amendment law the government had any argument that the file itself could be banned. Sure it can regulate the heck out of actually making the gun, possessing one, engaging in a conspiracy to make these things, etc. But never saw how they could shut down the exchange of just the file.

  4. The most interesting part of the Cody Wilson engagement should have been your practice development (client entertainment) receipts.

  5. I think many are missing the point of the Liberator. It uses this name to evoke the same purpose of the WWII FP-45 Liberator pistol that was made in the US for distribution to resistance forces in occupied territories. The idea was that one would use the single shot to kill an occupying soldier and take his weapon.

    The presumption is that a 3D printer will be more readily available than firearms while suffering under a totalitarian government or occupying army.

    1. Funny, I never thought of that. I was thinking a B-24 with slightly less firepower.

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