How dangerous might be a right to untraceable guns?

  • NEWMAN

Published: 9/11/2018 8:36:32 AM

Should you be able to create a fully operational lethal firearm by pushing a button on your computer? Let’s hit pause so that we can reset and review.

In 2013, Cody Wilson who describes himself as a crypto-anarchist, successfully constructed and successfully fired a 3-D printed plastic gun. He then posted the blueprint online.

In response, the Obama-era State Department ordered Wilson to take the files down because their publication violated the Arms Export Control Act and the International Traffic in Arms Regulations. Wilson later sued, claiming that the State Department had violated his First Amendment rights. (More on this in a moment.) The litigation plodded along.

Then in June 2018, the Department of Justice reversed course. It settled the case by giving Wilson and his non-profit company, Defense Distributed, the right to post the blueprints online including the single shot model, “Liberator,” and an AR-15-type rifle. The AR-15 has been used in most of the recent deadly massacres in the United States.

After the federal government capitulated, 19 state attorneys general sued Wilson and his company. In August, a federal district court judge in Seattle, Robert Lasnik, issued a preliminary injunction prohibiting Wilson from posting downloadable internet blueprints for producing the 3-D – printable guns.

The attorneys general’s relief was short-lived. Because the lawsuit was narrowly focused on the State Department’s regulations and procedures regarding sale of weapons and alleged violations of the Administrative Procedures Act, the judge’s order did not cover blueprints that could “be emailed, mailed, securely transmitted or otherwise published within the United States.”

The day after the injunction was issued, Wilson had a work-around on his website: Flash drives for sale! Undetectable! Untraceable! No serial numbers! No inconvenient background checks! (He didn’t say these things – no need to.)

And the price is right. Pay what you want. A dollar is fine. Wilson says that he has received hundreds, perhaps thousands, of orders.

The price for a 3-D printer is a different matter. 3-D printers now cost between $8,000 and $13,000. But that price will undoubtedly be far less soon, making the printers more readily available. Besides, for serious criminals, organized crime, and terrorist cells, the present cost is negligible.

Meanwhile, Wilson has been taking prudent steps to limit his legal exposure. According to the New York Times, Wilson’s lawyer has said that “the flash drives would only be sent to customers in the United States, excluding states that have sued him.”

What about the Second Amendment? In Heller, the seminal 2008 Supreme Court decision that established gun ownership as an individual right, Justice Antonin Scalia wrote, “The right secured by the Second Amendment is not unlimited . . . The right [is] not a right to keep and carry any weapon whatsoever and for whatever purpose.”

Scalia went on to make clear that “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places . . . or laws imposing conditions and qualifications on the commercial sale of arms.” Given Scalia’s dicta, it would seem that viewed through the prism of the Second Amendment, this 3-D process amounts to a DIY, build your own gun kit, and thus the weapons can be regulated.

What about the First? The First Amendment argument here has some legs. After all, the First Amendment indeed protects – and should protect – the right to publish information about guns and virtually everything else. The fact that guns are dangerous, lethal, does not detract from that information being First Amendment protected.

And the judge in this case, found the First Amendment issues “challenging,” beginning with the question, Is computer code speech? If it is, then the government could be attempting to impose a prior restraint, which would be highly problematic. I am no expert on computer codes, but there is a constitutionally determinative difference between information and instructions about firearms and the firearms themselves, and it seems to me that this process is more about distributing the guns themselves than about distributing information about guns.

There’s another important consideration. The judge here lamented the inaction by both the Congress and the executive branch, either or both of which have the authority to address this issue. Trump says he didn’t know about the DOJ’s settlement and that recently he has spoken with the NRA and maybe the NRA doesn’t like these guns, so maybe – just maybe – Congress actually could pass, and the President could sign, an appropriate law. Towards that end, Democratic Senators Edward Markey, of Massachusetts, and Richard Blumenthal, of Connecticut, have introduced a bill that would ban the manufacture and sale of any untraceable weapon and additional legislation that would specifically prohibit the online publication of blueprints for plastic guns.

Wilson, and some commentators as well, make another point about the freedom to distribute information, which also has validity. This electronic data has been made available, and the genie will not be put completely back in the bottle.

Wilson doesn’t have much to say about the weapons posing great danger by rendering metal detectors obsolete. As for his weapons falling in to the hands of persons who no one thinks should have a gun, he says that after they kill someone, the criminal can be prosecuted.

Small comfort.

 

Bill Newman is a Northampton civil rights lawyer


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