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Judge continues ban on posting plans for 3D plastic guns

UPDATED: Mon., Aug. 27, 2018, 10:44 p.m.

Joel Williamson and other employees at Defense Distributed create a Ghost Gunner 2 machine, a desktop milling machine designed to construct firearm parts, in Austin, Texas, on Tuesday, Aug. 7, 2018. Cody Wilson, the founder of Defense Distributed, has been in a long legal dispute regarding his ability to post the instructions to create 3D printed firearms on his website. (Lynda M. Gonzalez / Austin American-Statesman via AP)
Joel Williamson and other employees at Defense Distributed create a Ghost Gunner 2 machine, a desktop milling machine designed to construct firearm parts, in Austin, Texas, on Tuesday, Aug. 7, 2018. Cody Wilson, the founder of Defense Distributed, has been in a long legal dispute regarding his ability to post the instructions to create 3D printed firearms on his website. (Lynda M. Gonzalez / Austin American-Statesman via AP)

The ban on the release of plans to create plastic handguns on a 3D printer will continue, a federal judge in Seattle ruled Monday morning.

Washington and other states that are seeking the ban “have a legitimate fear that adding undetectable and untraceable guns to the arsenal of weaponry already available will likely increase the threat of gun violence that they and their people experience,” U.S. District Judge Robert S. Lasnik ruled.

“The states have certain public safety, law enforcement and proprietary interests,” Lansnik said in a 25-page ruling. “The instability and inaccuracy of 3-D printed firearms pose threats to the citizens of the states, including both users and bystanders, while the toy-like appearance increases the risk of unintentional discharge, injury and/or death.”

Lasnik turned the temporary restraining order he issued some four weeks ago into a preliminary injunction that could stand until a full hearing on the issues involved in the case. The company that owns the rights to the plans may have a First Amendment right to post them on the internet, he said. They can already email or mail them out.

But those First Amendment rights are “dwarfed” by the irreparable harms the states could suffer, Lasnik said. The status quo should continue until the lawsuit is concluded.

In 2012, the federal government initially banned the posting of computer-aided design files that would allow the user to manufacture a plastic handgun with a 3D printer. Defense Distributed sued at that time, and a federal judge in Texas upheld the ban through a preliminary injunction. As recently as this April, the federal government argued the case should be dismissed, in part because it wanted to “ensure articles useful for warfare were not shipped from the United States to other countries … where, beyond the reach of U.S. they could be used to threaten U.S. security.”

Later in April the federal government and Defense Distributed reached a tentative settlement which would allow the company and others to put the files on the internet. The federal government announced changes to certain federal export regulations that would allow the files to be posted in late July.

But the government did not provide any information that explains what Lasnik called a dramatic change of position or address the prior concerns about national security.

Washington and 18 other states and the District of Columbia sued, saying the federal government hadn’t allowed adequate notice of the changes and wasn’t following the Administrative Procedures Act, which bars any change that can be shown to be arbitrary or capricious.

The federal government argued the settlement with Defense Distributed was the result of years of review, with a decision that nonautomatic firearms of less than .50 caliber, which the files create, don’t provide any potential enemy a military advantage, so they don’t deserve the kind of export control initially used to keep the company from posting the files.

Lasnik dismissed many of the federal government’s current arguments against lifting his original restraining order. The Justice Department contended that even if the files are available, the federal government can still enforce the law against undetectable firearms

“It is of small comfort to know that, once an undetectable firearm has been used to kill a citizen of Delaware or Rhode Island or Vermont, the federal government will seek to prosecute a weapons charge in federal court while the state pursues a murder conviction in state court,” he wrote. “It is the untraceable and undetectable nature of these small firearms that poses a unique danger.”

The argument “rings hollow” and avoids the potential harm the states may face, he said.

The Trump administration has the right to exercise discretion in how it handles national security, but it has to follow the procedures by set up by Congress rather than acting in an arbitrary and capricious manner, he said.

The case raises some interesting questions, such as whether computer code is speech, Lasnik said, and if so whether it has First Amendment protections that can’t be restrained by the Arms Export Control Act. He said he couldn’t rule on that with the limited information he has. Instead, he said he would presume that the company does have a First Amendment right to distribute the files, but the states’ rights to avoid the potential harm posed by undetectable guns supports keeping the ban in place until a trial could supply the answers.


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