Legal warfare against constitutionally protected rights continues, with ideas and information increasingly in the crosshairs. Case in point: on Feb. 6, California Attorney General Rob Bonta and San Francisco City Attorney David Chiu unveiled a lawsuit designed to enlarge their own authority at the expense of the First and Second Amendments.
The filing in San Francisco Superior Court is aimed at the Gatalog Foundation, Inc., and CTRL PEW LLC, along with other named defendants, including a gun rights attorney. The complaint faults the defendants for “distributing computer code for 3D printing firearms and prohibited firearm accessories and for promoting and facilitating the unlawful manufacture of 3D printed firearms and firearm accessories in violation of Civil Code sections 3273.61 and 3273.625 and the Unfair Competition Law (Bus. and Prof. Code § 17200 et seq.).” The suit seeks not only preliminary and permanent injunctive relief but significant civil penalties against each defendant, among other remedies.
This lawsuit is not just about the manufacturing or possession of 3D printed firearms and accessories. It is an effort to put dangerous and unconstitutional prior restraints on speech and enable California to extend its gun control reach beyond its own borders.
Whether we agree or disagree with them, laws do, in fact, exist for illegal conduct regarding 3D printed firearms. In California, it is already illegal to produce 3D printed firearms and accessories. According to this filed complaint, “the People used Defendants’ code to build a fully functioning Glock-style handgun. The People downloaded the code and instructions necessary for building this deadly weapon from Defendants’ website with a few simple keystrokes.” Building a firearm is conduct, and conduct is at least the proper domain of the law.
But regulating the mere distribution of 3D models and instructions online is an act of censorship that implicates the First Amendment. Ironically, it was a three-judge panel decision from the Ninth Circuit itself (which covers California) that notably recognized this in Bernstein v. Department of Justice. There, the Court made clear that regulating computer source code is tantamount to regulating speech. The case, however, was then scheduled for rehearing before an en banc panel of the Ninth Circuit. In the meantime, the government changed the underlying regulations on which the lawsuit was based, causing the case to be remanded to the trial court for further proceedings. The trial court then determined the changes effectively mooted the case.
Indeed, entirely missing from the California complaint filed on the 6th is any justification as to why these particular files, these 3D models, and these instructions are to be categorically excluded from First Amendment protection.
Based on that pivotal fact, CTRLPEW, LLC, promptly filed a countersuit against Bonta and Chiu just five days after the enforcement suit was filed. Their own complaint cites the Bernstein decision in asserting:
“Plaintiffs’ guides, photographs, instructional materials, and digital design files constitute expression protected by the First Amendment. Courts have recognized that technical information and computer source code are speech for First Amendment purposes.”
The legal assault against privately made firearms is nothing new and has frequently been the subject of NRA-ILA’s reporting, including here and here. And while this latest lawsuit marks a dangerous escalation from regulating the making of guns to regulating information about the making of guns, the legal ramp up has been in the works for some time. Recall that in 2020, 21 anti-gun state attorneys general sued the Trump Administration to prevent the completion of its Export Reform initiative to ease regulations on the export of non-military firearms. At the heart of the case was its claim that the initiative risked making plans for 3D printed firearms available online. Eventually, a three-judge panel of the U.S Court of Appeals for the Ninth Circuit found that Congress had precluded judicial review of the administrative action at issue in the case.
More recently, on Feb. 12, a three-judge panel of the U.S. Court of Appeals for the Third Circuit dismissed a long-fought challenge to protect online code and 3D-printed files that had been banned under New Jersey law. Ultimately, the court dodged the first Amendment claim at the heart of the case by holding the complaint did not plead sufficient factual matter for the court to resolve the issue. But the panel did ominously indicate: “while it is certainly true that some computer code falls under the purview of the First Amendment, purely functional code with no actual or intended expressive use does not.” Whether this “expressive content” test will hold up in future cases, and, if so, where the line between “functional” and “expressive” computer code is drawn, remains to be seen.
Gun control advocates have long sought to target not just the possession of firearms but of their precursors. This is why, for example, they want to regulate not just frames or receivers but unfinished aluminum blanks that could be converted into frames or receivers. It’s also why California went after the Glock handgun, an ordinary semiautomatic, under the pretext it could be converted into a machine gun (notwithstanding laws that already prohibit possessing or manufacturing machine guns or machine gun conversion devices).
The efforts to ban speech or instructions or information about 3D printed guns is of a piece with these efforts. And the First Amendment gets no more respect than the Second when it comes to the leading-edge gun control agenda.
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