By Noah Feldman
The prospect of ordinary people making guns at home on their 3D printers seems scary. Even President Donald Trump, a strong Second Amendment supporter, has tweeted that it "doesn't seem to make much sense."
I am looking into 3-D Plastic Guns being sold to the public. Already spoke to NRA, doesn't seem to make much sense!
-- Donald J. Trump (@realDonaldTrump)
Attorneys general in eight states and the District of Columbia agreed, and sued to stop the website of Defense Distributed from publishing instructions for printing out plastic firearms. A federal judge recognized the harm Tuesday night and issued a temporary restraining order.[2]
But the attack on freedom of speech is also scary here. Even as he acted to block the gun plans, U.S. District Judge Robert S. Lasnik recognized there are "serious First Amendment issues" at play.
Under current interpretations of the Second Amendment, the government could almost certainly prohibit unregulated home manufacture of guns. The First Amendment, however, might well protect the distribution of the computer code[3] that functions as the recipe for the 3D printers.
The threshold question is whether computer code is a form of speech at all. This question raises philosophical questions about whether computer code written in a programming language is effectively an object - not ordinarily regulated by the First Amendment - or is more like a set of written instructions from one person to another, which would typically be considered a form of speech.
The U.S. Supreme Court has never definitively answered this tricky question. But the lower courts have mostly held that code counts as speech. In an influential 2001 decision to that effect, the U.S. Court of
