PACKING PLASTIC: HOW A FEDERAL BAN ON 3D PRINTED FIREARMS MAY PROTECT THE PUBLIC WHILE RETAINING CONSTITUTIONALITY.

• Author: Raven, William A.

1. Introduction

   "No online database will replace your daily newspaper, no CD-ROM can take the place of a competent teacher and no computer network will change the way the government works" exclaimed Clifford Stoll in a 1995 editorial belittling a newfangled device called the internet. (1) Today, more than twenty years removed from Stoll's ill-fated prophecy where the internet permeates seemingly every aspect of daily life, it is easy to scoff at the idea of the internet's subjugation, labelling the oracle hailing from that seemingly primitive age of 1995 as ill-informed or even crazy. (2) Another frontier technological development susceptible to doubt, reminiscent of that which fueled the critique of the internet in its infancy, is the proliferation of 3D printing technology. (3) This innovation may sound alien, and indeed evokes imagery of the Star Trek replicator, which was able to create a seemingly unlimited myriad of tangible objects from digital patterns for the officers of Starfleet Command. (4)

   However, this technology is not confined to the realm of fantasy interplanetary exploration and conquest, but may be purchased by citizens of earth for as little as three hundred dollars--or less than the price of a model U.S.S. Enterprise. (5)

   3D printing is heralded for its ability to produce complex parts with less human supervision, less waste, and more efficiency than traditional manufacturing. (6) While currently not far removed from this technology's inception, the ability to create afforded by this innovation has shown that 3D printing technology has the potential to revolutionize personal manufacturing on a scale reminiscent of the internet's monumental impact on the spread of information. (7) Nevertheless, the efficiency of this technology coupled with its widespread use makes it the perfect tool for those engaged in illegal activity and criminal enterprise. (8) The regulation of 3D printed firearms is essential in impeding one of the largest aspects of this illegal activity. (9)

   3D printed objects are not able to be formed from thin air of course,

   but require Computer Aided Design ("CAD") files to instruct the printer how to proceed. (10) Where anyone can convert a digital file into a functional firearm, or specialized firearm parts, the right to bear arms and freedom of speech enabling these individuals must be balanced against public safety and security threats. (11)

   Contemporaneously, as with many new technological advancements, the muscles of the American regulatory scheme are underdeveloped in the fight against 3D printed firearms. (12) However, the government does not possess an unbridled ability to legislate in this area, as any regulation regarding the 3D printing of firearms implicates important constitutional safeguards namely the First Amendment's protection of free speech and the Second Amendment's guarantee of the right to bear arms. (13) Consequentially, these fundamental rights impinge upon the government's regulatory powers, imposing indelible lines over which the government's reach may not extend. (14) Thus, striking a balance between the liberties of those who post and download blueprints of 3D printed firearms against the public's safety and security is paramount to achieving effective legislation in this emerging area of law. (15) In fact, this Note proposes the adoption of the 3D Printed Gun Safety Act of 2019, which prohibits the distribution of CAD files able to automatically produce a firearm, or complete a firearm from an unfinished frame or receiver, in order to maintain public safety and national security. (16)

2. History

   1. The Process of 3D Printing Firearms

      "Similar to the way the World Wide Web democratized news, education, and entertainment, 3D printing has tremendous potential to democratize the manufacturing of certain goods." (17) 3D printing has thus ushered in a "maker movement" where people can construct goods to meet their exact specifications. (18) In addition to the relatively uncontroversial printing of medical devices, toys, and car parts, this technology also allows the printing of firearms and firearm parts from the privacy of one's home. (19)

      The 3D printer works by using a digital code that is able to make a tangible and solid three-dimensional object through the employment of a layering process, known as additive manufacturing. (20) The printer "resembles a sort of robotic hot glue gun" guided by a laser, emitting material in consecutive two-dimensional layers on a platform until the intended object is complete. (21) The digital code used to create the finished product including dimensions, materials, and printing processes is contained in the blueprint, or CAD file. (22) This digital code giving life to CAD files is known as source code, and may be created from scratch using computer aided design software, produced from 3D modelling programs, 3D scanners, or even from uploaded photos of a given design. (23) Additionally, a pre-designed and further customizable CAD file may be downloaded from the internet without any technical expertise. (24)

   2. Printing the Problem: The First 3D Printed Firearm

      The catalysts of the 3D printed firearm movement are Cody Wilson and Ben Denio who founded Defense Distributed in 2012. (25) Defense Distributed is a nonprofit which strongly advocates "anti-monopolistic digital publishing" by "writing and releasing software to aid in the disintermediation of state governments and large, collusive corporations." (26) The organization hosts 3D printable gun blueprints to further this goal of reducing governmental and corporate meddling in the affairs of citizens. (27)

      In 2013, Defense Distributed made the first fully functional 3D printed gun, christened the "Liberator." (28) The Liberator is made out of all plastic parts except for a removable metal firing pin, available at any hardware store. (29) Although bullets fired from the Liberator exit the firearm at half the speed of a bullet from a conventional gun of the same caliber, they cause a similar amount of damage. (30) Subsequently, Wilson posted the design blueprints for the Liberator on the Defense Distributed website where they were then downloaded over 100,000 times in the span of a few days. (31) Nevertheless, once the State Department caught wind of the Liberator's proliferation online, a letter was sent to Wilson on May 8, 2013, stating that the Liberator's CAD files were regulated under the International Traffic in Arms Regulations ("ITAR"). (32) Upon receipt of the letter, Wilson and Defense Distributed removed the CAD files from their website to comply with the State Department's order. (33) However, though the files were removed from the site, they still remained in the possession of those who had already downloaded them. (34)

      After removing the files, Defense Distributed subsequently sued the State Department to challenge the inclusion of Liberator CAD files under the purview of the ITAR. (35) In Defense Distributed v. United States Dep't of State, (36) the plaintiffs asserted that the imposition of the ITAR reflected an impermissible prior restraint on speech, while simultaneously infringing upon Second Amendment rights. (37) Pending resolution of their claim, Defense Distributed sought a preliminary injunction against the State Department, the effect of which would allow the Liberator CAD files to remain online while the litigation was ongoing. (38) The District Court for the Western District of Texas denied the request, stating that national security trumped the non-profit's rights under the Constitution. (39)

      Following the denial of their injunction, Defense Distributed appealed to the Fifth Circuit Court of Appeals. (40) The appeals court declined to interpret whether CAD files are protected speech under the First Amendment, and recognized that a legal loophole exists where "anyone may make his or her own unserialized, untraceable" firearm parts for personal use, though they are illegal to transfer. (41)

      Ultimately, the appeals court concluded that the district court did not abuse its discretion in denying Defense Distributed's injunction as "the national defense and national security interest" may be permanently harmed by the uploading of additional CAD files. (42)

   3. The Current State of Firearm Laws and Regulations

      The 3D printing of firearms complicates the already myriad range of gun laws in the United States which stem from state, local, and federal regulators. (43) These laws must respect the Second Amendment, which guarantees the right to bear arms to private persons. (44) The federal laws in existence allow the majority of U.S. citizens to acquire firearms legally. (45) Citizens are allowed to manufacture their own firearms under the current federal laws; however, due to the expertise required and rarity of the occurrence, laws are not tailored to this practice. (46) Current federal firearm legislation includes the National Firearms Act of 1934, the Gun Control Act of 1968, the Arms Export Control Act of 1976, the Undetectable Firearms Act of 1988 and the Brady Handgun Violence Prevention Act of 1993. (47) The federal agency primarily responsible for enforcing the federal firearms laws is the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). (48)

      1. National Firearms Act of 1934

         The National Firearms Act ("NFA") was originally enacted in 1934. (49) The goal of the NFA was to quell the occurrence of crime proliferated by "gangsters." (50) The Act imposed a tax on weapons including automatic firearms, short barreled shotguns, and silencers. (51) The Act also banned the sale of firearms to those "under indictment or... convicted of a crime of violence," and mandated dealers of firearms working in interstate commerce to "be federally licensed and record all of their transactions." (52) Any firearm that falls under the NFA "requires a tax payment, registration, and approval from the ATF." (53)

      2. The Gun Control Act of 1968

         The...