Third Circuit backs New Jersey’s crackdown on 3D-printed gun code

PHILADELPHIA (CN) — New Jersey can continue limiting who can 3D-print their own guns after the Third Circuit ruled a prominent distributor of printable firearm files failed to sufficiently make its case.

In July 2018, the New Jersey attorney general sent a cease-and-desist letter to Defense Distributed — an online organization dedicated to sharing computer code used to 3D-print firearms — threatening legal action if the organization continued publishing “printable gun computer files for use by New Jersey residents.”

Within days, Defense Distributed and gun rights nonprofit Second Amendment Foundation sued the New Jersey attorney general in Western Texas federal court, asserting that the cease-and-desist letter constituted violations of the First Amendment right to free speech and Second Amendment right to bear arms.

In 2020, Defense Distributed and the Second Amendment Foundation amended their complaint to additionally target a 2018 New Jersey law that banned distributing code for 3D-printing guns to anyone in the state without a gun manufacturing license. That law, the organizations argued, amounted to “speech crime” and criminal censorship by limiting the groups’ ability to share digital instructions on how to print firearms.

Following a yearslong legal back-and-forth over court jurisdiction, the case was transferred to New Jersey federal court in 2021.

In June 2023, U.S. District Judge Michael A. Shipp dismissed all of the organizations’ claims.

On the Second Amendment claim, the Barack Obama appointee found that the organizations lacked standing, as New Jersey law did not prevent either group or their members from 3D-printing a firearm.

On the First Amendment claim, Shipp emphasized a difference in protections for expressive and functional computer code, writing that the former is always constitutionally protected while the latter may not be.

According to the New Jersey federal judge, the organizations failed to provide sufficient information regarding Defense Distributed’s files for the court to determine which type of code they are, dooming their claim.

The organizations promptly appealed to the Third Circuit. But on Thursday, a three-judge panel’s opinion affirmed Shipp’s ruling, mirroring the lower court judge’s concerns over the complaint’s lack of specificity.

Writing on behalf of the panel, U.S. Circuit Judge Cheryl Ann Krause focused primarily on the organizations’ First Amendment claim, asserting that the groups made two distinct fatal flaws in their argument.

First, Krause said, the organizations failed to sufficiently identify how sharing Defense Distributed’s files violates New Jersey law.

“While the complaint lists a variety of file types … it is unclear which, if any, of those are [banned files]. It is unclear what information those files provide, how they are used, whether they are part of the 3D printing process, or what ideas they convey, if any,” wrote Krause, an Obama appointee.

Second, Krause echoed Shipp’s concern that the organizations did not provide enough information on their files for the court to determine whether they have First Amendment protections.

“Indeed, the district court provided appellants with an opportunity to amend their complaint and include additional allegations that would enable the court to assess whether they have plausibly alleged that the code at issue is covered by the First Amendment,” Krause wrote. “Appellants declined to do so, and the district court therefore correctly dismissed their complaint with prejudice.”

U.S. Circuit Judge Anthony J. Scirica, a Ronald Reagan appointee, and U.S. Circuit Judge Marjorie Rendell, a Bill Clinton appointee, joined Krause in her opinion.

Speaking to Courthouse News, Defense Distributed director Cody Wilson criticized the panel's ruling, suggesting the judges intentionally avoided the merits of his First Amendment argument.

“As the plaintiff, I’m insulted,” Wilson told Courthouse News. “Of course, we were challenging an act of civil censorship, so we described all the files we thought were at issue. We described what they did … To pretend that a First Amendment case wasn’t even made, or a factual record wasn’t even provided so the court couldn’t make a determination, is a dereliction. It’s a purposeful evasion of the question … So, no — I have to politely refuse the court’s characterization of what we did.”

Wilson added that he intends to continue litigation and expressed interest in seeking an en banc rehearing in the Third Circuit.

Following the Third Circuit's decision, New Jersey Acting Attorney General Jennifer Davenport celebrated the ruling in a post on X.

“We've been protecting NJ from 3D printed guns for eight years. They would let anyone—including felons and domestic abusers—get an untraceable gun without a background check. Grateful to the Third Circuit for rejecting Defense Distributed’s challenge,” Davenport wrote.

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