October 2018

Holm Belsheim, MJLST Staffer 

3-D printing is the process of creating three dimensional objects by layering very thin layers of plastic into the desired shape. All you need is the printer, raw material, and a good blueprint. From gadgets and toys for home use to replacement organs, there are many things one can make. Some of the possibilities, however, pose significant legal concerns. At the heart of years of litigation is a group behind the designs for a working, 3-D printable firearm.

In 2013 Cody Wilson founded Defense Distributed to distribute and monetize 3-D printable gun designs. Defense Distributed’s first design, the Liberator, could fire a single shot. Plans for the Liberator were downloaded an estimated 100,000 times from the Defense Distributed website alone, and have since been hosted on several other sites. As of 9/25/2018, a search of the Defense Distributed file site DEFCAD turned up nine different designs for printable guns and gun parts. The group ultimately hopes to create a larger community of 3-D gun designers and printers.

Ignoring the national debate over firearms, 3-D printed guns pose a unique security risk. Making a gun is not illegal. Liberators are concerning because, like most 3-D printed objects, they are made of plastic. They aren’t detectable by metal detectors, and furthermore lack serial numbers or other identifying information. Per the Undetectable Firearms Act, undetectable guns have been illegal since 1988. While the Liberator design incorporates two metal pieces, one solely to set off metal detectors, the design doesn’t require them to function. Anyone with a 3-D printer can choose whether to include these pieces. Thus, these ‘ghost guns’ pose a substantial security risk.

The Liberator debuted on May 6th, 2013. Two days later, Defense Distributed took down the designs after the U.S. State Department deemed them a violation of export laws under the Arms Export Control Act. In 2015, citing 1st, 2nd and 5th Amendment arguments, Defense Distributed sued the United States in District Court (Defense Distributed v. U.S. Dept.t of State, 121 F.Supp.3d 680, (W.D.T.X. 2015)) and then, upon appeal, in the Fifth Circuit (838 F.3d 451, (5th Cir.  2016)) before being denied certiorari by the U.S. Supreme Court. Surprising some, the U.S. Government settled with Defense Distributed in 2018, giving the group license to upload the plans again as well as paying some of their legal fees. Only a few days after the plans were reuploaded however, Oregon and several states sued Defense Distributed, the U.S. State Department and others.(State of Washingtonv. U.S. Dept.of State2:18-cv-01115-RSL (W.D.W.A. 2018)). Subsequently U.S. District Judge Robert Lasnik issued a restraining order against Defense Distributed’s hosting of the plans.

So far, the injunction doesn’t seem to have done much. Near the end of the order is this phrase: “Regulation under the AECA means that the files cannot be uploaded to the internet, but they can be emailed, mailed, securely transmitted, or otherwise published within the United States.” Interpreting this literally, Defense Distributed removed the option to directly access digital plans but has continued sales through other means, namely mailing copies on USB sticks. At least 400 orders have been placed. Whether this workaround remains legal will likely be brought up in the future. For now it’s anyone’s guess whether Defense Distributed read it correctly or played a little too loose with the spirit of the injunction. My prediction is that Defense Distributed won’t be penalized: the options laid out in the injunction are too specific to be accidental.

The litigation is expected to continue. As of 9/25/2018, Defense Distributed has raised $342,000 for its legal expenses while receiving assistance from the Second Amendment Foundation and others. Meanwhile, a total of 21 Attorneys General are on the opposing side. They cheered the injunction but aim for more, potentially a complete ban on 3-D printable guns. The arrest of former Defense Distributed director Cody Wilson on unrelated charges has had no effect upon the case so far.