I read with interest Thomas Julin‘s article, “Weaponized First Amendment Does Not Protect Blueprints for Weapons” in the Daily Business Review. The link is here.
Tom sets out the current status of the debate, cites an authority, and concludes that the First Amendment “will not protect publication of information for use in the making of illegal weapons.”
Let’s get this out of the way: download all the gun plans you want here. I haven’t tested them, don’t recommend it, and if you have ever put your hands on anything that’s been 3D printed, you would never want it as a gun component. But there they are.
Consider it a fast track to win a Darwin Award if you try it.
The Obama Administration sued Cody Wilson under an arms export control law. Meh, that was their best argument BUT I don’t see Cody’s actions and website as the intended focus of that law. For political reasons,
and because he’s a stable genius amirite Trump reversed course. Still, to fairly set out the facts, there’s a court order that has capped (ahem) the dissemination Cody’s gun plans temporarily.
Setting aside the expert control law, and turning to the First Amendment, bottling up Cody’s website likely falls into the category of “prior restraint,” a narrow area that is rarely a winner except in areas of national security, porn, and preserving fair trials. Generally speaking, the law does not like injunctions on speech preceding, rather than following, a judicial determination (see Vance v Universal). Restraining free speech is the “most serious and least tolerable infringement on First Amendment rights” (see Nebraska v. Free Press). Both sides of the argument could cherry pick lines out of cases, but generally the government has to meet something along the “clear and present danger” test, balancing “evil” against an invasion of free speech, looking for less restrictive rights.
Tom cites to a case involving thermonuclear weapons. I think we can distinguish that one! Particularly in a country where there are more guns than people. Tom hints to the fact that, with internet dissemination, the cat may already be out of the bag (to mix a 21st century concern with an 18th century(ish) expression). He hits on a good point.
You have to admit, we’re so wound up in this country about our guns, there’s a history of Americans making their own guns. Even the National Park Service will tell you the history and how to make one. See here. So it should not come as a shock that this information makes it onto the Internet. Even if Tom is right, under the “least restrictive means” provision, some gun-building instructions on the internet should slide past the clear-and-present danger test (or whichever strict test is applied). Does the First Amendment however go so far as to protect posting the instructions to build this 3D-printed AK-47? Maybe not, we don’t know yet. But 23,000 downloads of the instructions, and counting, still doesn’t equate to the government’s concern about nuclear bombs.
Switching gears to the Second Amendment momentarily, how the courts handle gun cases may surprise you. The Ninth Circuit is considered the most liberal appellate court in the land. But in February 2018, the court issued a painfully well-reasoned argument leading to the equally painful decision that the right to “open carry” a gun is easier to establish as constitutional than “concealed carry” or banning them outright (see Young v. Hawaii). There are books written on cases interpreting “clashes” between provisions of the Constitution but read this case and tell me that instructions to build a musket, shotgun, rifle, or handgun are inconsistent with this liberal court’s reading of the Bill of Rights.
Let’s get back to the First Amendment. The High Court doesn’t like prior restraint. Guns, unlikes nukes, are ubiquitous. We have a history of gun-lovin’ and gun-making’. Sadly. So it’s a common and embedded American concept. And we don’t like prior restraint. Oh, and the Second Amendment proponents have been kicking ass recently in U.S. Supreme Court and other major courts… so I disagree with Tom’s prediction.
This post is, of course, a tad cheeky in tone. I don’t like the direction and likely outcome we’re heading towards.
Tom and I do agree on one thing: who knows until the U.S. Supreme Court says so.