President Joe Biden is on his way out the door. In the meantime, there are a lot of things he can still do. One, as Cam talked about earlier, was the pardoning of his son Hunter, who was convicted on federal gun charges. He claims it was because Hunter was targeted for political reasons, but since he’s not trying to pardon Trump despite the politically motivated jihad he’s faced, we know that’s BS.
But, for the most part, that’s just annoying.
What’s less so is the recent executive order directing the creation of a task force to look at 3D-printed guns and machine-gun conversion devices. It’s not as bad as it could be, of course–there’s nothing that requires anyone to take action on literally anything suggested–but it’s still yet another attempt to infringe on our right to keep and bear arms.
That’s not new, though.
The NRA’s response, however, is.
Fortunately, the orders themselves were, in this case, long on election-year rhetoric and short on substance. One created an interagency task force to study and report on strategies to “stop the proliferation of machinegun conversion devices,” and another required a report to “address the emerging threat related to 3D-printed firearms.”
A White House press release accompanying the orders made it clear that the government will be tasked with creating a taxpayer-funded report to be used to push lawmakers to increase the power and resources of the federal bureaucracy, noting, “The report will include any additional authorities or funding the federal agencies need from Congress in order to complete this work.”
Given the Biden-Harris administration’s anti-gun record, Americans have every reason to believe that the order will be used to attack Second Amendment rights. However, certain aspects of the order suggest the administration is also seeking to undermine the First Amendment right to freedom of speech.
Wait…really?
Yeah, actually.
In particular, it focuses on the files used for 3D-printed guns themselves.
Note the order emphasized assessing plans to restrict software and its capabilities to target 3D-printed firearms. Any restriction on Americans’ ability to create and share this information potentially violates the First Amendment. (Under current law, software or computer code is generally treated as speech.)
In 1999, the U.S. Court of Appeals for the Ninth Circuit addressed this matter in the case Bernstein v. U.S. Department of Justice. The case concerned encryption software, which the government said could not be posted on the internet because such software was categorized as a munition, subject to severe export control regulations.
The court held that the encryption software at issue was protected speech. Further, the court held that as speech, the software was “entitled to the protections of the prior restraint doctrine.” The prior-restraint doctrine makes clear that the government cannot preemptively restrict the publication of speech in almost all circumstances.
Code is speech, basically. The courts have found that for quite some time, and what the Biden administration is doing is to try and undermine that argument by saying not all code is speech. Just the code the government approves of.
Of course, if that line of “reasoning” works, then it’s not a massive leap to saying that pro-gun speech could be restricted, too. After all, if files to print guns aren’t speech when every other kind of file is, then why would what we do here at Bearing Arms or at any other pro-Second Amendment site be afforded equal protection under the law?
Now, there’s some good news here.
For one thing, all of this could come to an abrupt end after Donald Trump is sworn in as president. He could easily issue an executive order on day one rescinding this order and many other anti-gun efforts by the Biden administration. He could just wipe them all out, which would be fair since that’s what Biden did on his first day in office.
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