My newest article, The 1st Amendment, 2nd Amendment, and 3D Printed Guns, will be published in a special symposium issue of the Tennessee Law Review on the Second Amendment. Primarily, this article shows how many of the proposed regulations concerning 3D-printers would run afoul of the First and Second Amendment.
But, beyond 3D guns, I articulate several new ways of looking at the Second Amendment. First, any meaningful right to keep and bear arms requires, at a minimum, the ability to acquire the gun from somewhere. This the right to acquire arms. Further, the person selling the gun has to get it from somewhere. This is the right to make arms. The right to make arms is heightened when it is done for personal consumption as historically, and today, homemade guns are largely outside the scope of any gun control laws. Thus the right to keep and bear arms entails a right to acquire, and make arms. These rights lend themselves well to the context of 3D guns, but have much broader applications.
In addition, building on recent scholarship about data and the First Amendment, I demonstrate that the source code of the 3D CAD files is constitutionally protected. Efforts to censor this information infringes the right of the speaker, and of the listener to receive this information. Further, the “hybrid” First and Second Amendment right offers heightened constitutional protections when the government attempts to restrict speech about the right to keep and bear arms.
In short, banning 3D guns is all sorts of unconstitutional.
Here is the abstract. I welcome any of your comments.
We are standing at the dawn of the next great industrial revolution. With 3-D printers people can print an infinite number of personalized and customized “things.” However, one manifestation of this bold new technology threatens to cast a specter on innovation: 3D printed guns. This article explores how efforts to regulate, or even ban 3D guns, must satisfy constitutional scrutiny under both the First and Second Amendments.
The Second Amendment right to keep and bear arms includes a subsidiary right to acquire arms—what else are you going to keep and bear—which covers both the buyer, and seller in the transaction. Further, the seller has to obtain guns, including newly manufactured firearms. Thus, the Second Amendment supply chain protects a right to make arms. These constitutional guarantees preserve the right to acquire and make firearms, by 3D printer or other means.
Prohibitions on sharing and receiving information about 3D guns, in the form of CAD source code files, violate the First Amendment right to free speech. The fact that information about 3D guns is distributed in electronic format does not shield it from the Bill of Rights. Further, the “hybrid” First and Second Amendment right offers heightened constitutional protections when the government attempts to restrict speech about the right to keep and bear arms.
I concluded by offering a preliminary analysis of several proposals to regulate 3D guns. First, laws that prohibit the manufacturing and possession of 3D guns, without a showing that the weapons are highly dangerous, would likely be unconstitutional. Second, bans on individuals making and possessing 3D guns for personal use would represent an unprecedented expansion of gun control laws, as there are virtually no regulations on homemade firearms. Third, the application of the International Traffic in Arms Regulation (“ITAR”), designed to keep dangerous weapons and munitions out of the hands of foreign nationals is an an ill-equipped, and as applied unconstitutional means to regulate 3D guns.