I Came, Itar, I Conquered: The International Traffic in Arms Regulations, 3d-Printed Firearms, and the First Amendment

INTRODUCTIONSince its initial development in the 1980s, three-dimensional ("3D") printing, or "additive manufacturing," has steadily become more consumer friendly, as the cost and necessary expertise has diminished.1 Consumer 3D printing works by utilizing Computer Aided Design ("CAD") files.2 Much like a conventional paper printer, the 3D printer requires "ink" to produce the desired design, except the ink required for 3D printers is typically plastic.3 The 3D printer receives its instructions from the CAD file, and either solidifies or excretes the powder or liquid ink.4 Some 3D printers are able to print metal objects, such as hardware, medical instruments, and even firearms.5 These metal printers are far more expensive than their plastic-based counterparts, and require more expertise to operate.6Due to the increasing ease of use and decreasing cost, 3D printing has the potential for both significant social benefits and dangers.7 In the medical field, for example, "bioprinting" has the potential to fundamentally alter the processes in place for organ donation; provide new, invaluable opportunities for the study of disease; and dramatically increase accessibility to functional prosthetic limbs.8 Simultaneously, the greater ease and decreased expense of 3D printing of medical devices could create opportunities for the proliferation of products that have not undergone regulatory scrutiny for safety or effectiveness.9Similar issues arise with respect to 3D-printed firearms.10 Defense Distributed, a Texas non-profit, recently designed a lower receiver for an AR-15 rifle, capable of firing over 600 rounds, and placed the CAD file on its website.11 There are also at least two functional models of handguns, printed almost entirely by 3D printers.12 One of these pistols, the Liberator, is a plastic handgun, capable of firing .380 caliber bullets.13 The pistol's design includes a steel chunk, solely to comply with the recently extended Undetectable Firearms Act, which prohibits firearms that do not set off metal detectors.14The second handgun, developed by Solid Concepts, is the world's first metal 3D-printed gun.15 The 3D printer required to produce the metal gun, however, is far more expensive than a consumer 3D printer that uses plastic, and requires a higher degree of expertise.16 Still, as 3D printers become more accessible, the ability to print fully functional firearms with relative ease presents an increasing threat to existing gun regulations.17In May 2013, the State Department required Defense Distributed to remove from its website the CAD files for the Liberator and other weapon parts.18 The State Department ordered the CAD files removed pending a determination by the Directorate of Defense Controls ("DDTC") as to whether the blueprints are considered technical data under the International Traffic in Arms Regulations ("ITAR").19This Note examines whether the ITAR proscribes posting 3D gun CAD files on the Internet without a license, and, if so, whether such regulations violate the First Amendment.20 Part I outlines the statutory and regulatory framework of the ITAR and the applicable First Amendment principles.21 Part II applies First Amendment principles to the regulatory scheme of the ITAR.22 Finally, Part III argues that the ITAR's intersection with the First Amendment creates a constitu- tional catch-22 insofar as courts have declined to determine the ITAR's constitutionality, but without judicial review, the ITAR is an unconstitutional prior restraint on speech.23I. THE ITAR AND THE FIRST AMENDMENTThis Part explores the pertinent components of the intersection between the ITAR and the First Amendment.24 Section A illustrates the relevant substance and procedures of the ITAR.25 Section B then explores the applicable First Amendment principles articulated by the Supreme Court.26A. The Prohibitions, Exceptions, and Procedures of the ITARThrough the Arms Export and Control Act (AECA), the DDTC has the authority to regulate the export of "defense articles and defense services. …