by Amanda Zink, J.D.

Last week, Facebook and Instagram banned gun sales on their platforms. Despite the outcry after each mass shooting, believe it or not, America’s gun problem is only getting worse. Since the year 2000, 500,000 Americans have lost their lives to bullets, and over a million more were injured by guns. Mass shootings now occur within our borders DAILY and a child or teen is shot to death about every 3 hours. Eighty percent of the mass shootings in the world between 2000-2014 were in America. The rest of the world thinks we’ve gone mad. If the rhetoric of conservatives like Donald Trump (“Gun-free zones are target practice for sickos”) continues to override common sense and incontrovertible statistics, the only thing America is going to be great at is killing ourselves off with Glocks.

Oh, and it gets worse. Not only can you be a terrorist and easily buy a gun in this country, be mentally ill and buy a gun, be a 10 year old kid and buy a gun, or be a convicted felon and buy a gun, you don’t even have to BUY a gun now…you can just PRINT one! The technology now exists for Americans to 3D print firearms in their very own homes, and this is totally legal.

Where the Technologies Stand

When 25-year-old Cody Wilson posted the data files for the first 3D printed gun on his website in 2013, the State Department promptly ordered him to take them down…after 100,000 people had downloaded them. Of course, it’s hard to keep anything off the Internet for long: Pirate Bay now hosts the blueprints for Wilson’s “The Liberator”, and 3D printed gun models are only getting deadlier and cheaper. If you’re in the market for a 3D printer, you might want to check out 3D Hubs’ 2016 Best 3D Printer Guide for the specs of the top 126 of 441 different models used by the site’s members. The price for the top pick: $1,825. The cost of printing a gun on it now: $25.

As technologies improve and know-how spreads, more and more Americans stand to have access to 3D printed guns. If Obama’s recent executive actions or other future measures tightening control of traditional firearms manage to have a real impact, the appeal of bypassing government intrusion into our fundamental Second Amendment right to bear arms may cause the demand for these homegrown guns to further skyrocket. So how do 3D printed guns shift the gun control debate? Here’s a brief look at the regulatory and practical challenges facing this evolving technology.

Freedom of Speech

If there’s anything Americans hold dearer than the Second Amendment, it’s – you guessed it – the First Amendment. Fact is, the act of sharing the files that allow people to print guns out is very likely protected under the First Amendment – the right to Freedom of Speech. The Supreme Court has found a wide array of electronic communications, broadly considered “information,” to qualify as protected speech, and Justice Scalia has directly implied that banning the “distribut[ion] of pictures of guns” would be unconstitutional.

You Can’t Just Print Your Own Gun, Can You?

Yes, you can. The Second Amendment grants citizens the right to keep and bear arms, and this has been interpreted to include the right to make arms. Federal law requires firearms sellers to be licensed; commercial guns must bear a unique serial number and be registered; and the buyer must undergo a background check (save for the gun show loophole). However, it is perfectly legal to manufacture and own a firearm, including a 3D printed one, for personal use: no license or registration required. The only manufacturing limitation is on guns that cannot be detected by metal detectors or x-ray machines. The Liberator contained a metal component for the very purpose of complying with this federal requirement – a nonfunctional, REMOVABLE metal component.

Well…What About Terrorists?

Ding ding ding! (Maybe.) If you’ve started to wonder what grounds the State Department even asserted to order Wilson’s Liberator files taken down, you might not have been expecting the International Traffic in Arms Regulations (ITAR) – a set of controversial munitions exporting laws enacted during the Cold War. In other words, the government is claiming that Wilson uploading the Liberator blueprints to his website is like “shipp[ing] a crate of AR-15s to [Iraq].” Wilson is now suing the State Department on constitutional grounds, and he is very likely to win. Because ITAR establishes a licensing scheme with arbitrary procedural guidelines (Wilson spent two years trying to get a license or exemption under ITAR before initiating the lawsuit), it will be viewed as a prior restraint on free speech, assuming the court deems the gun files “speech.” The last time the State Department got sued for creating a prior restraint on controversial code based on ITAR, the court not only found that the coder’s cryptography was protected free speech, it declared ITAR itself unconstitutional.

To get away with a prior restraint on free speech, the government will likely have to prove a compelling interest in national security. As the Court stated in upholding the PATRIOT Act’s prohibition on providing material support to foreign terrorist organizations, “[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” However, the court will uphold prior restraints of free speech in only an “extremely narrow class of cases where publication would directly and immediately imperil national security” and such a restriction must be narrowly tailored (using the least restrictive means possible) to serve that interest. The State Department will be hard pressed to prove that sharing open-sourced 3D gun files that are available all over the Internet meets this exacting standard.

Limits of the Law

As long and bleak as the road to regulating 3D printed guns looks, the truth is that the law can only do so much. As the U.S. Department of Homeland Security put it, “proposed legislation to ban 3D printing of weapons may deter, but cannot completely prevent their production. Even if the practice is prohibited by new legislation, online distribution of these digital files will be as difficult to control as any other illegally traded music, movie or software files.” A futurist who agrees with the futility of criminalizing 3D gun ownership offers a novel set of potential solutions: the proliferation of bullet-resistant 3D printed clothing, open-source cloaking technology, and widespread drone surveillance. These may be the most feasible gun control measures proposed yet in America.

Can We Follow Australia’s Lead THIS Time?

Australia’s response to a gunman killing 35 people at a Tasmanian seaside resort in 1996 is by now well known: it swiftly enacted sweeping gun control efforts and within a decade, suicides by gunshot decreased by 65%, and firearm homicides went down 59%. After Adam Lanza murdered 20 children and 6 adults with an AR-15 semiautomatic rifle at Sandy Hook Elementary School in 2012, America took vigorous action too. It enacted 109 state gun bills introduced within a year of the Newtown tragedy – 70 of which LOOSENED gun restrictions.

Australia’s largest state, New South Wales, has also already dealt with 3D printed guns: possess the digital blueprints for a 3D printed gun, go to jail for 14 years. Now granted, Australian law doesn’t prioritize free speech OR gun ownership nearly as strongly as the U.S does. But perhaps it’s time we reconsider the reach and ideologies of our First and Second Amendments – because as another 30,000+ Americans WON’T be able to tell you this year, it’s hard to speak freely when you’re dead.