May 24, 2022

Volume XII, Number 144

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May 23, 2022

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State Department Scores Victory in 3D-Printed Guns First Amendment Battle

The opinion issued on Tuesday, September 20 by the U.S. Court of Appeals for the Fifth Circuit in Defense Distributed, Second Amendment Foundation Inc. v. U.S. Dept. of State resolved for now an ongoing effort to obtain a preliminary injunction allowing the public release through the internet of weapon designs/technical data for the 3D printing/manufacture of AR-15s or assault rifle parts.

As a legal matter, the opinion is relatively limited and merely holds:

“In sum, we conclude that the district court did not abuse its discretion in denying Plaintiffs-Appellants’ preliminary injunction based on their failure to carry their burden of persuasion on two of the three non-merits requirements for preliminary injunctive relief, namely the balance of harm and the public interest. We therefore affirm the district court’s denial and decline to reach the question of whether Plaintiffs-Appellants have demonstrated a substantial likelihood of success on the merits.”  Defense Distributed v. Dept. of State, ___ F.3d ___, slip op. at 13 (5th Cir. Sept. 20, 2016).  http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions

3D printed guns, gavel

That said, in light of the lengthy dissent and the following quoted statement from the Court of Appeals, one might anticipate further legal challenge in the Fifth Circuit and to the Supreme Court:

“We are mindful of the fact that the parties and the amici curiae in this case focused on the merits, and understandably so. This case presents a number of novel legal questions, including whether the 3D printing and/or CNC milling files at issue here may constitute protected speech under the First Amendment, the level of scrutiny applicable to the statutory and regulatory scheme here, whether posting files online for unrestricted download may constitute “export,” and whether the ITAR regulations establish an impermissible prior restraint scheme. These are difficult questions, and we take no position on the ultimate outcome other than to agree with the district court that it is not yet time to address the merits.

On remand, the district court eventually will have to address the merits, and it will be able to do so with the benefit of a more fully developed record. The amicus briefs submitted in this case were very helpful and almost all supported Plaintiffs-Appellants’ general position. Given the importance of the issues presented, we may only hope that amici continue to provide input into the broader implications of this dispute.”  Defense Distributed v. Dept. of State, ___ F.3d ___, slip op. at 14 (5th Cir. Sept. 20, 2016).

The position of the plaintiff may present a future challenge to manufacturers of defense systems.  If the plaintiff’s position is ultimately granted, one might suspect that persons will more freely publish technical data relating to the design and manufacture of weaponry for a variety of motivations, including to further the interests of foreign adversaries of the U.S.  Although such conduct may occur nonetheless, acceptance of the plaintiff’s legal position or a ruling in its favor would provide legal cover for those wishing to publish such designs for weaponry and may encourage many who may otherwise feel constrained to so publish such information.

If nothing else, one might reasonably anticipate much more legal controversy on this score.

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume VI, Number 267
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About this Author

Steven Pelak, holland hart, investigative counsel, corporate compliance attorney
Partner

Steven W. Pelak focuses his practice on civil and criminal enforcement proceedings and internal investigations. With more than 25 years of experience, he provides clients with sound counsel and advocacy on administrative and criminal inquiries, investigations, and prosecutions, as well as internal corporate compliance matters.

Mr. Pelak has significant experience as a federal prosecutor and in private practice handling and supervising the investigation and prosecution of export control, embargo, fraud, bribery, public corruption, immigration,...

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Gwen Green, Holland Hart, international trade attorney, corporate compliance law
Of Counsel

Gwen Green is Of Counsel in the Washington, D.C. office where she concentrates her practice on international trade and regulatory compliance matters that facilitate clients' efficient trade with and from the U.S. Gwen advises clients how to develop and implement corporate compliance programs in the areas of U.S. export controls, U.S. economic sanctions, anti-boycott regulations, foreign investment in the U.S., and the Foreign Corrupt Practices Act. She also assists clients with due diligence investigations, audits, and risk assessments.

Her...

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