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Legally Speaking: What is the situation regarding 3D-printed guns?

FILE - In this May 10, 2013, file photo, Cody Wilson holds what he calls a Liberator pistol that was completely made on a 3-D-printer at his home in Austin, Texas. Eight states filed suit Monday, July 30, 2018, against the Trump administration over its decision to allow a Texas company to publish downloadable blueprints for a 3D-printed gun, contending the hard-to-trace plastic weapons are a boon to terrorists and criminals and threaten public safety. (Jay Janner/Austin American-Statesman via AP, File)

U.S. District Court Judge Robert Lasnik, a federal judge in Washington, issued a temporary restraining order (TRO) stopping the State Department from allowing the 3D printing blueprints for several types of weapons to be published by a private company. The blueprints are for the creation of untraceable and undetectable 3D-printed plastic weapons.

The situation is confusing so I will attempt to break it down and explain what is going on, from a legal standpoint.

First, some background. In 2012, a private company, Defensive Distributed, posted computer aided design (CAD) files for various weapons on its website. Think of these files as blueprints for 3D printing. The federal government immediately requested Defensive Distributed take the CAD files off its site.

The government then told the company it could request the Department of State to determine whether the files were subject to export control. Basically, if the files were subject to “export control” then the private company would have to remove the files. If the files were not subject to “export control,” then it would be allowed to publish them.

The company submitted the requests and filed a lawsuit claiming the actions of the State Department were a form of “censorship of expression in violation of the First, Second and Fifth Amendments to the Constitution.”

In a nutshell the State Department responded to the lawsuit claiming the CAD files posed a danger because the weapons would be undetectable and untraceable and could fall into the hands of our country’s enemies. Then, in 2018, in a 180-degree shift, the State Department settled with Defensive Distributed allowing it to publish the CAD files.

When the settlement was discovered, several state attorneys general filed a lawsuit against the State Department for failing to adhere to the Administrative Procedure Act.

In other words, the AGs are arguing that when the State Department settled with the private company and decided to allow the private company to publish the blueprints it was supposed to give notice to Congress and it did not; as well as get the agreement of the Secretary of Defense, which it did not. As such, it violated the Administrative Procedure Act. In short, it failed to follow the proper procedure.

Lasnik issued the TRO because the AGs proved they are likely to succeed on their claim of failure to follow the Administrative Procedure Act. They also showed him the country is likely to suffer irreparable harm if the blueprints are published. After all, once they are published they can be downloaded. Even if the TRO comes later the damage will have been done.

Plaintiffs also convinced the judge the balance of hardships impacts the states substantially. The plans have been shelved for six years and maintaining the status quo of not allowing the publication will not hurt the federal government but allowing the publication could be extremely detrimental to all.

Lastly, plaintiffs demonstrated the injunction to keep the blueprints from being published is in the states’ and the country’s best interest.

Although this entire legal battle started with claims of censorship and prior restraint under the First Amendment mixed with the Second Amendment right to bear arms, it has morphed into a battle between the states and the federal government over a failure to follow procedure.

It might return to its roots with the federal government arguing publication is allowed under the First and Second Amendment; which would be ironic.

Talk about a 180 degree shift, #LegallySpeaking.