For the second question on my constitutional law exam, I took a fact pattern from real life–3D-printed guns! In this case, based on the Defense Distributed suit, New York enacts laws that ban the sharing of information about 3D-printed guns, and criminalizes the creation of 3D-printed guns. Then, Congress passes the 3D Firearms Protection Act, which purports to rely on Section 5 of the 14th Amendment to prevent states from banning the share of information about, and printing of 3D-printed guns. The students need to understand whether, under Boerne v. Flores, Congress is trying to expand the scope of the constitutional rights. Finally, the law allows citizens to sue their own states for violation of rights, so there is a Morrison abrogation of sovereign immunity question. Enjoy!

Instructions: The year is 2015. The state of New York, concerned about new guns printed with a three-dimensional printer, enacts three ordinances to regulate these weapons. Cody, who designed and shared on the internet the electronic “blueprints” for 3D-Printed Guns, is charged by the New York Attorney General for violating the three ordinances. Cody has moved to dismiss the charges, citing the recently-enacted federal 3D Firearms Protection Act. You are an associate of the criminal defense firm representing Cody. Your senior partner has asked you to prepare a memorandum of no more than 1,000 words addressing five issues concerning this case.

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Cody, a law student at New York University, is passionate about guns, and teaching others about guns. To Cody’s disappointment, New York has very strict laws concerning the manufacturing, sale, and ownership of firearms. New York prohibits the carrying of all firearms within the state without a license. Cody’s application for a concealed carry license was denied by the Attorney General because Cody failed to demonstrate that he really “needed” the gun.

Cody decides to take matters into his own hands with the new technology known as three-dimensional printing (“3D Printing”). 3D Printing allows Cody to design an object in three dimensions on a computer. The 3D Printer then “prints” the three-dimensional physical object out of plastic, in much the same way that a traditional printer can print a two-dimensional object on paper.

Soon, Cody creates on his computer the design for a handgun, and is able to print it out using his 3D Printer. It is a very simple handgun that can only hold one small bullet at a time–but it is lethal. Every time the bullet is fired, the handgun has to be manually reloaded. The gun is made entirely out of plastic, except for a piece of metal used as the firing pin (the part of the gun that strikes the bullet, shooting the projectile out of the weapon). Cody names the handgun the “Freedomaker.”

Cody posts on the internet the electronic file for the “Freedomaker”–known as the “blueprints”–along with instructions of how to print the handgun. Within hours, it becomes a viral sensation and is downloaded by hundreds of thousands of people.

The Governor of New York learns of Cody’s actions, and becomes furious. The New York State Legislature quickly enacts three ordinances to deal with this emerging threat.

1. Ordinance #1 makes it a felony to transmit any information about 3D-Printed Guns through any electronic means. This includes posting on the internet the “Blueprints,” and any related instructions that teach someone how to manufacture a 3D-Printed Gun.
2. Ordinance #2 makes it a felony to use a 3D Printer to create any gun or its component parts.
3. Ordinance #3 makes it a felony to transport a 3D-Printed Gun or its components out of New York and into another state.

Cody is enraged by these three laws. Cody uploads all of his 3D Printer files to his internet file server, which is physically located in New Jersey. He prints out another Freedomaker, and puts it in a locked case. He then puts the locked case in the trunk of his car, and drives towards New Jersey. As he gets on the George Washington Bridge, a New York State Trooper starts to follow him. As soon as he gets off the gridlocked bridge into New Jersey, the Trooper turns on the sirens, pulls over Cody, and places him under arrest for the violations of Ordinances 1, 2, and 3.

Cody’s arrest becomes a media sensation, and Americans nationwide are outraged that New York arrested Cody for exercising his First and Second Amendment rights. In response, Congress enacts the 3D Firearm Protection Act. The bill has four sections:

Section 1.

1. The Congress finds that the framers of the Constitution, recognizing free speech as an unalienable right, secured its protection in the First Amendment to the Constitution.
2. The Congress finds that the states are infringing the rights of free speech by restricting the transmission of 3D-Printed Gun “Blueprints” and related electronic files.
3. No state shall restrict the electronic transmission of such files, unless the regulation is narrowly tailored to serve a compelling government interest.

Section 2.

1. The Congress finds that the framers of the Constitution, recognizing the right to keep and bear arms as an unalienable right, secured its protection in the Second Amendment to the Constitution.
2. The Congress finds that the states are restricting the right to create 3D-Printed Guns for personal use.
3. No state shall substantially burden the right to create a 3D-Printed Gun for personal use.

Section 3.

1. The Congress finds that the framers of the Constitution vested Congress, and not the states, with the power to regulate commerce among the states.
2. The Congress finds that the states are restricting the rights of Americans to carry lawful firearms, interfering with the stream of interstate commerce and the right to keep and bear arms.
3. No state shall substantially burden the right to carry a 3D-Printed Gun in any state.

Section 4.

A person whose rights have been burdened in violation of this statute may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state.

The President promptly signs the 3D Firearm Protection Act into law.

Undisturbed by the new federal law, the Governor of New York instructs the Attorney General to continue the prosecution of Cody. Cody is indicted by the Grand Jury on three counts of violating Ordinances #1, #2, and #3.

Cody’s defense team files a motion to dismiss the indictment, alleging that the prosecution violates Sections 1-3 of the 3D Firearm Protection Act.

Cody also files a lawsuit in federal district court seeking damages against the state of New York, relying on Section 4, arguing that the state deprived Cody of his federal rights protected by the 3D Firearm Protection Act.

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You are an associate at the law firm defending Cody. Your senior partner asks you to prepare a memorandum of no more than 1,000 words, citing all relevant Supreme Court decisions, addressing the following five issues:

1. Does Section 1 of the 3D Firearm Protection Act preempt the enforcement of Ordinance #1? Specifically, does Congress have the power to enact Section 1? If so, which provision(s) of the Constitution give(s) Congress that authority.
2. Does Section 2 of the 3D Firearm Protection Act preempt the enforcement of Ordinance #2? Specifically, does Congress have the power to enact Section 2? If so, which provision(s) of the Constitution give(s) Congress that authority.
3. Does Section 3 of the 3D Firearm Protection Act preempt the enforcement of Ordinance #3? Specifically, does Congress have the power to enact Section 3? If so, which provision(s) of the Constitution give(s) Congress that authority.
4. Does Section 4 authorize Cody to file suit for damages against the state of New York for violating his rights protected by the 3D Firearm Protection Act? (Assume the case is justiciable, and properly before the district court).
5. From a policy perspective, please discuss the extent to which Congress should use its powers to enforce civil rights in the sovereign states, and what limitation federalism and the separation of powers should impose on that authority.