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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.

Mark McDaniel/ReasonMark McDaniel/Reason

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.

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  • A Lady of Reason||

    A gun in the wrong hands is dangerous, but in the right hands will stop danger... Guns are tools, and we need good guys with guns tstop the criminals who will get them regardless...
    https://aladyofreason.wordpress.com/

  • A Lady of Reason||

    to stop* typo

  • IceTrey||

    How about that as long as you're not initiating force it's nobody's business what you do?

  • Malvolio||

    The correct way to phrase this is, "Don't start nothing, won't be nothing."

  • a ab abc abcd abcde abcdef ahf||

    bad actors were trying to take advantage of loopholes because no law squarely addressed printable guns or ghost guns.

    As opposed to the loopholes in the Second Amendment which he was abusing.

    Phil Zimmerman and PGP set a pretty good standard.

  • Fist of Etiquette||

    I like the lexicon of the day. Doing anything some legislator, regulator or court hasn't yet banned on paper is abusing a loophole.

  • a ab abc abcd abcde abcdef ahf||

    At some point, future generations will wonder what was so weird about the Mother-May-I game. We are still allowed to do many things without permission or supervision, but the list grows shorter every day.

  • perlchpr||

    Fuck Phil Zimmerman and his goddamned statist sucking position on this matter. I am in Germany right now, and I'm hanging out with people who can almost assuredly get my hands on a copy of the OCR text we used to export PGP the first time. I'm goddamned tempted to reimport the fucking thing in my luggage and give him a solid beating with it.

  • a ab abc abcd abcde abcdef ahf||

    I had two bosses who both had code in the OCR book. I doubt very much you did anything equivalent to advance privacy.

  • Diane Reynolds (Paul.)||

    The point here is that of all people Phil Zimmerman should know better, but his position on this makes it seems like he learned no lessons from his travails at the hands of the Federal leviathan.

  • SIV||

    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.

    So is this just supposed to apply to code controlling 3D printers CNC machines and the like, or does it include text, drawings, photographs, videos, plans, schematics, templates etc?

  • Live Free Or Diet||

    Whatever the claim now, you know it will be extended to videos, pics and PDFs, and once they can do that, physical printed books will come next.

  • Rich||

    Followed by whispered speech and unspoken *thought*.

  • loveconstitution1789||

    New Jersey is too stupid to know that the 1st and 2nd Amendments protect American's right to keep and bear Arms and print anything about those things in any manner they choose?

  • Unicorn Abattoir||

    Not stupid, they just think they can get away with it. And given their record with gun laws, there's no reason to think that they won't.

  • sharmota4zeb||

    Most of the residents are either too busy working to pay high rents and property taxes to protest or too dependent on state aid to risk it protesting.

  • Jerryskids||

    Our Founding Fathers could never have foreseen that someday you'd be able to print fully semi-automatic words let alone those high-capacity magazines. Single-sheet printing was what they had in mind.

  • Live Free Or Diet||

    Hand-set-type printed receivers?
    Egad, next, you'll tell me they just worked from forge, hammer and anvil like cavemen!

  • Fist of Etiquette||

    I didn't realize the Commerce Clause could be violated any more than it already has been.

  • DesigNate||

    If the Commerce Clause didn't want to be violated, it shouldn't have gotten drunk wearing that dress.

  • Trigger Warning||

    No, but I am sure it would love to try.

  • Rich||

    A new New Jersey statute (enacted by SB2465) bans "distribut[ing] by any means, including the Internet, to a person in New Jersey who is not registered or licensed as a [gun] manufacturer ..., digital instructions in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a three-dimensional printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component."

    So, is NJ next going to ban distribution of info about writing to "a person in NJ" (whatever that means) who is not a registered author?

  • Jerry B.||

    Wonder when they'll try banning publishing the dimensions of an AR lower, because anyone with the proper equipment can machine one pretty easily.

  • LiborCon||

    "bad actors were trying to take advantage of loopholes"

    Loopholes being gaps in our restrictive laws that allow people to exercise their rights.

  • ranrod||

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  • ranrod||

    Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan.
    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn't count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn't say "file a lawsuit in federal court." Madison advised a refusal to cooperate with officers of the union. Don't depend on politically connected lawyers to protect your right to keep and bear arms.
    Tenth Amendment Center

  • sharmota4zeb||

    The following was written in New Jersey:

    This recipe is not as specific as a gun, but it has the potential to do damage.

    Step 1 - Drill a hole in a garbage can with a latch that allows you to seal the lid.

    Step 2 - Place the garbage can and a lit scented candle in an area that gives you trouble.

    Step 3 - Place several room fumigators with "flammable" warnings signs in the garbage can.

    Step 4 - Set off one room fumigator, throw it in the garbage can, latch the lid closed, run like hell.

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