When is a 3D-printed gun file protected speech? That’s a hard question to answer, but according to the Philadelphia-based 3rd Circuit Court of Appeals, not when such a file is distributed in the state of New Jersey.
On February 12, the 3rd Circuit Court unanimously ruled in the case Defense Distributed v. Attorney General of New Jersey a lower court decision throwing out the challenge to a state law that criminalizes the distribution of certain digital instructions or code that can be used to 3D-print firearms to unlicensed individuals was the correct decision.
At issue is a 2018 cease-and-desist letter from New Jersey’s attorney general to Texas-based Defense Distributed citing public nuisance and negligence laws after the company began publishing printable gun files. Defense Distributed initially complied with the distribution limitations, but later resumed sharing with geographic restrictions and license checks.
Defense Distributed, along with the Second Amendment Foundation (SAF), later filed the lawsuit in federal court in New Jersey, alleging violations of the First Amendment (free speech and prior restraint), the Second Amendment (the right to bear arms, including self-manufacture), and the Due Process Clause (vagueness).
Unfortunately for Defense Distributed, the 3rd Circuit ruled against it in all three aspects of its argument.
Concerning the Second Amendment challenge, Circuit Judge Cheryl Ann Krause, who wrote the opinion in the case, concluded that the plaintiff failed to allege a concrete injury.
“Both Defense Distributed and the Second Amendment Foundation claim that the NJAG’s threatened enforcement of the New Jersey Statute violates the Second Ame3ndmebt by ‘infringing on the right to make and acquire Arms,’” Judge Krause wrote. “Putting aside the novelty of their asserted Second Amendment right to ‘self-manufacture firearms … free from any major regulation whatsoever,’ we agree with the District court that Appellants have failed to plead that the alleged violation of this right resulted in any actual and concrete Second Amendment injury.”
Pertaining to the due process argument of vagueness, the court again agreed with the District Court’s decision.
“And here, read in context, the statue covers a narrow category of files and code, and within that narrowed category, circumscribes the distribution of only that code which may be used for a particular function,” the opinion stated. “As a result, the statute does provide a person of ordinary intelligence fair notice of what is proscribed and does not invite arbitrary enforcement.”
Lastly, concerning the First Amendment claim that the law violates the plaintiff’s free speech, the court again agreed with the lower court’s ruling.
“To invoke the protections of the First Amendment, the proponent must show that the particular use of the code burdened by a regulation involves the expression or communication of ideas in a way that implicates the First Amendment,” the ruling concluded.
Defense Distributed has not yet announced whether it will seek an en banc review of the case or appeal it to the U.S. Supreme Court.
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