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guns complicate the nature of speech
By AARON MAK
05/28/2026 04:19 PM EDT
guns can be made at home with 3D printers. | Robyn Beck/AFP via Getty Images
New York is wading into a debate over what exactly constitutes speech in a world that runs on code.
Governor Kathy Hochul (D) signed a bill on Wednesday that makes New York the first state to effectively prohibit 3D printers from producing “
guns” — or guns that can be made at home without a license, serial number or background check. The number of
guns circulating in the state appears to be increasing: The New York Police Department recovered one
gun in 2021, and 109 in 2024. Authorities also allege that Luigi Mangione used a
gun to assassinate UnitedHealthcare CEO Brian Thompson in midtown Manhattan.
New York’s S9005B, which is part of budget legislation for fiscal year 2027, tasks a working group with developing technological standards for 3D printers that will prevent them from producing firearm components. It also requires multiple licenses for distributing code that contains printing instructions for firearms.
Digital and gun rights groups have already raised First Amendment concerns that these rules amount to a restriction on the free flow of information. At the heart of the conflict is a question about what kinds of constitutional protections should apply to code. Courts have found that code can have expressive qualities in some cases, though they haven’t settled on how the First Amendment pertains to 3D-printing instructions for guns. It’s an issue that’s likely to arise as states like California, Maryland and Washington also consider
gun legislation.
“Once the government gets a [First Amendment] exception based on danger or public safety, then … everybody will want all kinds of speech to be regulated,” said Donald Kilmer, a legal adviser for the Second Amendment Law Center. “We [will] silence ourselves into becoming a degraded leader in innovation and technology.”
The Third Circuit Court of Appeals recently contemplated these issues in a case concerning New Jersey’s efforts to limit the distribution of digital 3D printer files for making guns. In its February ruling, the court concluded that not all code can be considered protected speech.
“[W]hile it is certainly true that some computer code falls under the purview of the First Amendment, purely functional code with no actual or intended expressive use does not,” Judge Cheryl Ann Krause wrote.
The court determined that “purely functional code” is not protected, likening it to an aeronautical chart that’s used more as a tool than as a vessel for ideas. It also noted that restrictions on distributing malware or ransomware can be constitutional.
While the court ruled it did not have enough information to evaluate whether the files in the case were expressive, Everytown for Gun Safety policy advocacy director Sam Levy told DFD that 3D printing code for firearms clearly falls into the functional category.
“Purely expressive conduct, like composing a symphony or singing a song, is very different from [...] code designed to do exactly one thing, which in this case is [to] program a 3D printer to make guns,” Levy said.
However, just because code is functional doesn’t mean that it can’t still transmit ideas. In the seminal case Bernstein v. United States Department of Justice, the Ninth Circuit Court of Appeals found the government couldn’t impose export regulations on a Ph.D. student who wanted to publish an algorithm, source code and explanatory paper for encryption software. The court reasoned that cryptographic source code was a form of expression, similar to economists’ graphs or mathematicians’ equations that are used to “facilitate the precise and rigorous expression of complex scientific ideas.”
“The cryptographic software is in the exact same position as the 3D printer code,” Kilmer contended. “The First Amendment says there is no speech that is inherently dangerous — it’s only the conduct that arises from the speech that can be punished.”
On that note, Kilmer argues authorities should only take enforcement actions on
guns once they’ve been made and sold without a license. That would avert First Amendment issues, and the Bureau of Alcohol, Tobacco, Firearms and Explosives already regulates the circulation of
guns at the federal level.
“There’s still a federal regulation in place that says you can make a gun for yourself in your home using your own material … you just can’t then turn around and sell it,” Kilmer told DFD. “That overall regulation of manufacturing arms for sale is already in place.”
However, New York’s law may also be crafted to avoid constitutional issues, since it’s focused on how 3D printers can be used to make guns. Levy asserted that the legislation targets a point in the manufacturing process that isn’t expressive in nature.
“When it gets to the stage of actual manufacturing, you’re well beyond expressive conduct,” he told DFD. “You’re literally instructing a machine to illegally manufacture a firearm or a firearm part, and that’s not First Amendment protected.”
Jess D’Amelia, deputy press secretary for Hochul, said in a statement: “This legislation, as with all laws in New York State, has been carefully crafted to ensure compliance with the Constitution while addressing the real and growing threat of
guns and illegally manufactured weapons of war, and the Governor is confident these measures will make all New York communities safer.”
