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US government drops prohibition on files for 3D printed arms

State and Defense Departments comply with revised regulations from May 2018.

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.]

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  • Dev Null||

    I believe it's non-automatic firearms up to and INCLUDING .50 caliber that will no longer be covered.

  • ||

    Fixed. Thanks.
    Dave

  • TPKeller||

    You sort of gloss over the most important point of the story. From Josh Blackman's blog, which posted the press release regarding the settlement:

    http://joshblackman.com/blog/2.....d-lawsuit/

    "Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.

    "Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby," noted SAF founder and Executive Vice President Alan M. Gottlieb. "For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called 'weapons of war,' and with this settlement, the government has acknowledged they are nothing of the sort."

  • Toranth||

    That's a nice press release, but does it actually mean any of that? It looks like what happened instead was that a gun-friendly administration chose to use a change in regulations to move small arms out of ITAR. But that seems to suggest that a different administration could choose to move them right back, re-starting the issue all over again.

    Is this actually a win for the First Amendment and Second Amendment?

  • TPKeller||

    There may not be text in the new policy that matches the wording of the press release, but yes, it does mean that.

    The official position of the United States Government now says that these types of firearms are no longer considered to be subject to ITAR.

    So while no, it does not change the Second Amendment, or even alter any current US law, it does provide very strong support for the next case that now has an even better chance than before to end up in front of the Supreme Court.

  • Toranth||

    The next case under the current rules, yes.
    But I don't see why the ITAR regulations cannot be changed again by a future administration back to what they were in 2016.

    Without an actual finding of First or Second Amendment protections, can the current state be preserved in the face of a gun-adverse administration?

  • Brett Bellmore||

    No, but this still places us in a better position, because at least theoretically, changes in regulations have to be justified, so that we're now in a position to challenge that change.

  • Bruce Hayden||

    The key here is that we are talking information, and not actual firearm parts. The Obama Administration had essentially shut down publication of plans for production of these parts within this country based on the theory that those outside this country could access them over the Internet. But, say a Democrat wins the WH in 2020, and tries to reverse this. The plans are already out in the public. Which makes any attempts to suppress their distribution fruitless.

  • Toranth||

    Fruitless, perhaps, but still possible to slap criminal penalties on people for that distribution. The plans for all sorts of guns are already available online, and have been for decades, before this rule change.

    ITAR is annoying enough that it can be legal to talk to someone about a gun one day, and not the next, but legal again the day after that - all depending on the exact terms of the export license.

  • AmosArch||

    technology will march on to the point where home producing more advanced weapons will be trivial. Instead of hiding behind bans sooner or later we'll have to learn to live with them like mature adults. Unless we want to be permanently locked down in a dictatorship that will control us enough to continue to keep them away.

  • regexp||

    learn to live with them like mature adults

    As a gun owner I agree with you to a point. But a large percentage of gun owners (especially those that belong to extremist organizations like the NRA) aren't mature adults. They act like children who cry whenever someone even suggests taking their boom boom sticks away. Reasonable gun regulation is necessary and needed. Mature adults can agree on that.

  • The original jack burton||

    Define "reasonable." Not "reasonable gun regulation." Just "reasonable."

    Try to avoid, "Reasonable is what I agree with."

  • Rеv. Arthur I. Kirkland||

    You start with a lie. You aren't a gun owner. You proceed to another lie. The NRA is not an "extremist" organization. You move on to further lies and parroting Hogg Hitler talking points.

    You are a sniveling weasel.

  • Brett Bellmore||

    In fact, the NRA is pretty reliant on the anti-gun movement claiming it's extremist; It tends to relieve the fears of members that the organization is going soft, when it compromises on this or that.

  • Naaman Brown||

    "... extremist organizations like the NRA ..."

    Among ardent supporters of Gun Owners of America, the Second Amendment Foundation and other gun rights groups (who have been winning court cases), the NRA is constantly criticized for being too willing to compromise away gun rights.

    To gun prohibitionists to whom reasonable regulation is prohibition, the NRA is "extremist". Tear down the NRA, and you'll find out what dealing with extremists is really like.

    I don't think it is extreme to label as gun prohibitionists the people and groups that defended the D.C. and Chicago gun bans in the Heller and McDonald cases and who denounced the SCOTUS decisions in Heller 2008 and McDonald 2010 as wrongly decided and vowed to overturn the decisions after they lost.

  • David Nieporent||

    Reasonable gun regulation is necessary and needed. Mature adults can agree on that.

    Everyone agrees on that. There's just vast disagreement about what's "reasonable."

  • Bruce Hayden||

    Yeh - I think that I might draw the line at crew served weapons systems, which would continue to outlaw artillary, aircraft carriers, tanks, etc, and maybe even .50 M2 MGs. Maybe. That's what I consider "reasonable" gun regulations. I am sure that there are some who think me too restrictive, and I suspect that gun grabbers likely AK think the opposite.

  • Brett Bellmore||

    I'm perfectly willing to let anybody have artillery, if they can demonstrate access to a range with sufficient backstops.

  • Bruce Hayden||

    Not sure if you truly need a backstop, if the state is big enough. I am thinking that most of NV would be just fine. And I would think that arms that primarily provide indirect fire, such as mortars and field artillary would be in less need of such than those that primarily provide direct fire, such as the main gun on an M-1 Abrahms.

  • Sigivald||

    "Trivial" is a bit much, since I don't see sintered-metal 3d printers ever becoming so cheap Everyone Will Have One, or under a few thousand bucks.

    (Remember also that it's actually easy for home machinists or hobbyists to make a submachinegun, if they're going that route, and you don't need a 3D printer to do it. Just a garage shop and hand tools, maybe a drill press.

    "Not firing as long as the trigger is down" is harder than the opposite; you don't need disconnectors or other frippery to go "brap" as opposed to "pew pew".

    Open-bolt, fixed firing pin subguns are, as far as I understand it, the easiest autoloading thing to make; the trickiest part of the entire family of guns is magazines and feeding ... and you have to handle that for a semi-auto, too.)

  • FlameCCT||

    Defense Distributed already has a CNC machine that is not much bigger than a laptop footprint that is optimized for 80% receivers for the AR-15 and AR-10. They will finally be able to distribute the CAD files needed to use the machine.

  • FlameCCT||

    Damn no edit. I forget to add that the cost is ~ $1675 + $100 flat rate shipping.

  • GabrielSyme||

    DefDist's "Ghost Gunner" is basically just a glorified drill press though (at about 10 times the price). It's not really a CNC machine in the traditional sense

  • bernard11||

    This deals with exports, not domestic sales.

    Why are we making it easier for Trump's dictator buddies to get arms for their police, whether they are "weapons of war" or not?

  • Brett Bellmore||

    Feh. This deals with domestically posting information where it might be accessed by somebody outside the country.

    Which is to say, posting it at all.

  • bernard11||

    Some of it is, and some of it has to with exporting actual physical weapons.

    Export controls for many ordinary firearms and accessories will be removed from the ITAR list.

  • Sigivald||

    So you're complaining that "dictators" might buy American ... pistols and semi-auto carbines for their cops?

    As opposed to ... Russian or Chinese or European ones?

    Seriously? THAT'S your objection?

    It's already trivially easy for them to get those kinds of weapons, because they're a commodity, and very, very few governments, even dictatorships, are under the kind of arms control sanctions that would even slow that down.

    A complete US ban on exporting all arms, period, would have no effect on dictators arming their police, both because of trivial substitution, and because more expensive US arms aren't exactly the favored thing for banana republic dictatorships.

  • Brett Bellmore||

    So, what implications does this have, if any, for Bush Sr's ban on the import of allegedly "non-sporting" arms? He caught me with that one, I was just about to buy an HK-93.

    Spent the money on an NRA life membership, instead.

  • Naaman Brown||

    Which dictators were arming their police with 3D printed arms?

    ITAR required permits for people producing stuff on the official Munitions List.

    In promoting ITAR, Amnesty International pointed out
    _ that "slug shotguns" or "brush guns" designed and sold for deer hunting are nearly identical to "combat shotguns" for military use;
    _ that "varmint rifles" or "benchrest rifles" for long range shooting are nearly identical to military "sniper rifles";
    _ that police utility vehicles were often the same models used as the military.
    Therefore, producers and sellers of domestic civilian and police shotguns, rifles and vehicles similar to models used by the military had to be subject to ITAR because the goods could enter illegal export without the end user certificate required for identified military items. The prospect was that a gunsmith who mounted telescopes on bolt action rifles would have to have an ITAR permit as a producer of "sniper rifles" on the domestic market to prevent "sniper rifles" from being exported without paperwork

    A lot of that was successfully defeated. But still, downloadable information on military items that could be accessed for export, was put under ITAR restrictions, including 3D printer files on rifle frames.

  • bernard11||

    Which dictators were arming their police with 3D printed arms?

    Which ones won't?

  • Jerry B.||

    "Which ones won't?"

    Ones that want their police to have functional, reliable, accurate, long-lasting, and relatively inexpensive firearms?

  • Bob from Ohio||

    Bernard is under the illusion that dictators currently have trouble arming their police forces.

    He also has no idea how cheap massed produced firearms can be at wholesale.

  • Sigivald||

    The ones who just buy Russian or Chinese factory-made guns by the crate at wholesale prices?

    All of them?

  • Krayt||

    Ban inside the US to prevent those outside the US from having them?

    But if this is a valid 2nd Amendment issue inside the US, isn't this freedom doubly valid for the resistance outside the US in dictatorships?

    Do we have any business stopping those opposed to dictatorsn friendly to us or not, from having the weapons core to us in ths US securing and maintaining our own freedom?

    Whose side are we on? The troops of the dictator already have weapons; the dictated-to do not.

  • David Nieporent||

    Why are we making it easier for Trump's dictator buddies to get arms for their police, whether they are "weapons of war" or not?

    Huh? Were you under the impression that governments ever have trouble gaining access to arms? It's private parties who benefit from easier access.

  • apedad||

    "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."

    I don't get it.

    If the govt prevailed in court, why did they have to revisit anything?

    Sure, the ITAR regulations changed but why was there a settlement agreement (and can you post a link to the agreement)?

  • MatthewSlyfield||

    The government hadn't prevailed on the merits in court.

    The case had not reached a decision on the merits in the district court. The district court denied Defense Distributed a preliminary injunction and that was appealed to the 5th circuit which upheld the district court's denial of preliminary injunction, there is an open request for SCOTUS review on that.

  • Bob from Ohio||

    The EPA has been doing friendly settlements with leftist environmental groups for years.

    Maybe this is similar.

  • Krayt||

    Are there any studies of EPA issues, waivers, and resolutions, penalties and amounts, taking the case all the way, etc. mapped to political loudmouthery or just donations to officials?

    We don't have corruption of the type where you need an "extra $200" or wait 5 years for your driver's license.

    Politicians here wouldn't use "useful idiots", on a righteous cruscade of regulation, as a profit center or opponent punishment method, not in this country, not no how, not no way.

  • ||

    I didn't explain it well enough in the original post, which has now been revised. The entire case, including the cert. denial, was about a preliminary injunction. The case was still live for trial on the merits.

  • Bruce Hayden||

    I was reading this in relation to the article posted right after this on Mississippi rejecting Chevron deference essentially based on a separation of powers basis - interpreting statutes is supposed to be a judicial, not an executive function. And we had here the courts essentially affirming a nakedly partisan interpretation of the export regulations by the Obama Administration. Why does it make sense for the Judiciary to defer to politically motivated interpretations of statutes by the most political branches, the Executive? I expect that Chevron will ultimately be curtailed by the Supreme Court, esp if the Republicans can replace some of the more progressive members of the Court. We shall see.

    Part of the irrationality here was that the part being controlled here in regards to AR-15s was one of the parts that made it extremely hard to make such fully automatic, and, thus really weapons of war, and legally "Assault Rifles", defined as being select fire rifles or carbines shooting an intermediate caliber cartridge. As I understand it, the AR-15 lower receiver was intentionally designed not to work with the M16/M4 select fire trigger group. And this is the only AR-15 part (that is fully functional) that you can't buy over the Internet.

  • Brett Bellmore||

    "And we had here the courts essentially affirming a nakedly partisan interpretation of the export regulations by the Obama Administration."

    Ok, I think you've gotten things backwards here. The Obama administration dramatically expanded the reach of ITAR regulations, to encompass even literature concerning the manufacture and servicing of civilian firearms. This appears to have been pretextual; By adding such literature to export regulations, and then claiming that publishing it online amounted to export, they were doing an end-run around the 1st amendment, censoring online communications concerning firearms which absolutely were 1st amendment protected if printed or spoken.

    Literally, they'd go after you on export violations if you tried putting gunsmithing videos online.

    THAT was the nakedly partisan interpretation, which the current administration just abandoned.

  • Bruce Hayden||

    Not sure why you think that we are in disagreement here.

    Let me also note that they were doing an end around run on the 2nd Amdt, in addition to the 1st Andt. By making the plans subject to ITAR, they were depriving Americans of their right to keep and bear arms based on these plans, in order to keep them out of the hands of foreigners. My expectation is that the real targets of these regulations were Americans, with the concern about foreign access meerly being a legal subterfuge.

  • FlameCCT||

    You're absolutely correct. Defense Distributed was selling a CNC machine optimized for the lower receiver of the AR-15 and AR-10 (aka AR-308). One can buy 80% complete lowers and finish them in a home shop although the CNC machine is very accurate and only costs about $1675 plus shipping. They also provided the CAD files for the CNC machines which were the subject of the law suit.

  • Michael Cook||

    There is other technology rapidly developing out there that is similar to 3-D printing, only utilizing thin layers of any kind of sheet metal to be cut out by a plasma cutter guided by a computer program. The layers can then be bonded together using high strength vacuum gluing techniques such as auto manufacturers now use or explosion methods that weld sheets together instantaneously. Net result, a capable firearm built from scratch overnight in a garage.

    The danger in the technology is how easy it is to go from an abstract, intricate idea to a hard, strong metal or other dense synthetic material that will make a dandy weapon. This will temp legislators and judges to want control of intellectual property itself. Regulation of concepts and suspiciously scary thinking will be in vogue.

    Just now I am thinking of a 3-D razor edge boomerang with guidance and control through deformable wings that is cheap enough to be expendable and guides itself straight to a target's throat every time. Reproducible in an hour with a precision plasma cutter. Thinking. Between the thought and the action, well, lies very little anymore.

  • Bubba Jones||

    Is that really any easier than finishing an 80% lower?

  • ||

    Probably, not, but it's only a matter of time before liberals demand "universal background checks" on all components, including barrels, complete uppers, pistol grips, stocks, and magazines.

  • Michael Cook||

    This is way out of the ballpark of current legal concerns (albeit not the case for international political concerns) but the two best main battle tanks in the world are the latest version of the German Leopard tank and the new design Russian A-14 Armata. The funny thing is, the Russians can't afford to build more than maybe a dozen prototypes of their supertanks and the Germans don't want to buy their own excellent Leopards either.

    A few NATO nations are dutifully buying some of the heavily armored and easy to operate Leopard tanks, probably to stay on the good side of the Trump administration, but the nation that really wants to buy them, Israel, can't interest Germany in selling any.

    Maybe it isn't a bad thing If superweapons are becoming little but abstractions that are conjured up for intimidation purposes. If that is Putin's game of late, the former KGB officer is certainly taking it to the next level when he announced several months ago that the "Tsar Bomba" cobalt enhanced hydrogen bomb which was tested in 1961 and had the power of 800 Hiroshima bombs has now been improved and has the explosive equivalent of 1,600 Hiroshima bombs.

    Further, Putin bragged about his "Status Six" research program, hinting that several such superbombs could be delivered by long range drone submarines to either American and detonated to cause tsunamis,

  • Michael Cook||

    to either American coast

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