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FIREARMS ON DEMAND? A FEDERAL JUDGE HITS THE PAUSE BUTTON ON 3D PRINTED FIREARMS

A federal judge granted an emergency temporary restraining order (“TRO”) preventing Defense Distributed, a Second Amendment advocacy group, from distributing files on the Internet that could be used to create firearms on a 3D printer.

Here is what you need to know:

  • Defense Distributed, led by Cody Wilson, has been in a multi-year fight with the federal government to allow it to distribute free Computer Assisted Design (“CAD”) files that would enable users around the world to create firearms using 3D printers.
  • Five years ago, Wilson successfully printed and tested a firearm, dubbed the “Liberator.”  Given his success, Wilson began posting CAD files online for a limited selection of firearms with the goal of making it possible for anyone to create a firearm using a 3D printer. The federal government demanded the files be taken down because the distribution violated export controls under the International Traffic in Arms Regulations (“ITAR”). Wilson fought the federal government through the Directorate of Defense Trade Controls (“DDTC”), the division in the Department of State that enforces the ITAR, as well as in a lawsuit in the U.S. District Court for the Western District of Texas. In the lawsuit, Wilson contended that the export restrictions violated his rights under the First, Second, and Fifth Amendments to the U.S. Constitution.
  • Until recently, the federal government appeared strenuously opposed to Defense Distributed’s actions, making claims that the distribution of the CAD files implicated national security interests because the files would allegedly enable criminals and terrorists to create “virtually undetectable” firearms.
  • Several months ago, the Department of State reversed course and settled the lawsuit. As part of the settlement, the Department of State agreed to temporarily modify the rules and allow the files to be distributed.
  • Following the settlement, Wilson announced that certain CAD files would be available August 1. Eight states and the District of Columbia filed a lawsuit and sought an emergency TRO in the U.S. District Court in Seattle, Washington, alleging the modification of the rules violated the Administrative Procedure Act in three ways, as well as violating the Tenth Amendment. Specifically, the states claim any modification of these rules requires: (1) 30 days’ notice to Congress; and (2) the Department of Defense’s agreement.
  • In granting the TRO, Judge Robert Lansik referenced the possibility that “the proliferation of [printable] firearms” could have “many negative impacts,” but rested his conclusion on the fact that the federal government did not appear to follow “prescribed procedures” by not notifying Congress or receiving the approval of the Department of Defense.

This lawsuit may soon be baseless, as new regulations are pending that would transfer the jurisdiction over the export of most firearms from the Department of State to the Department of Commerce.  The Department of Commerce does not restrict the public disclosure and publication of technical data, even though this could allow foreign persons to have access to it.  The Department of State prohibited the public disclosure of technical data as a deemed export to foreign persons. Thus, if these regulations are adopted, the rules being used to block publication of the CAD drawings would no longer be in effect. We will continue to monitor developments regarding “printable” firearms, as well as the progress of this case.

IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations, we advise you that any tax advice contained in this communication is not intended to be used for, and cannot be used for, the purpose of avoiding penalties under the United States federal tax laws.

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