A federal appeals court has overturned a district court order preventing plans for 3D-printed guns from being shared online.
In a ruling [PDF] on Tuesday, the US Ninth Circuit Court of Appeals lifted an injunction obtained in March 2020 by 22 states and the District of Columbia that blocked a State Department rule change removing 3D-printed guns and associated digital files from the US Munitions List, which enumerates controlled weaponry.
The decision means that 3D-printed guns and the digital blueprints to make them can be lawfully distributed, at least until the Biden administration weighs in, as is expected shortly.
In early April, the White House said that within 30 days, the Justice Department “will issue a proposed rule to help stop the proliferation of ‘ghost guns.'” The term refers to the lack of serial numbers on 3D-printed guns, which makes them difficult to trace.
The 3D-printed gun saga dates back to 2013 when a company called Defense Distributed began distributing CAD files for creating guns using 3D printers and subsequently withdrew the files, which remained online elsewhere, after the State Department said the business might face charges for violating arms control laws.
Then in July 2018, Defense Distributed reached a settlement with the State Department to distribute its CAD files, only to face another legal challenge from eight attorneys general and the District of Columbia. (The following year, the company’s founder was sentenced to seven years of probation for having sex with a minor.)
‘Liberator’: Proof that you can’t make a working gun in a 3D printer
The State Department in 2018 proposed removing 3D-printed guns and related files from the US Munitions list and when its rule was finally adopted on March 9, 2020, the 22 States and the District of Columbia sued to block the State Department rule.
The district court hearing that challenge granted the States’ injunction on the basis that the States seemed likely to prevail in their claim that the State Department under the Trump administration had violated the Administrative Procedure Act by adopting the rules without any judicial review.
However, the appeals court concluded that the decision to remove ghost guns from the US Munitions List by the Department of State and Department of Commerce is exempt from review.
In 1976, Congress authorized the President to “designate those items which shall be considered defense articles,” the appellate opinion explains, and in the AntiTerrorism and Arms Export Amendments Act of 1989, lawmakers declared that the President’s designation of defense items on the US Munitions List is not subject to judicial review.
At least that’s the opinion of two US Circuit Judges, Jay Bybee, appointed by George W. Bush, and Ryan Nelson, appointed by Donald Trump.
A third judge hearing the appeal, US District Judge Robert Whaley, appointed by Bill Clinton, dissented, noted in his dissent that in 1981 Congress placed a limitation on the President’s ability to remove items from the Munitions List, which creates a legal distinction between adding items to the list and removing them. His view is that taking items off the list should qualify for judicial review.
California Attorney General Rob Bonta, among those trying to block State Department rule change, has not yet decided how to respond. “We are currently reviewing the decision and evaluating our next steps,” a spokesperson told The Register in email.
Gun news site The Reload last week posted what it claims are draft rules being formulated by the Justice Department to amend the definition of various firearm components to cover privately-made guns, or ghost guns. The purported changes would not prevent people from printing guns but would make sellers of privately-made guns subject to record-keeping and marking requirements.
According to the posted document, law enforcement officers between January 1, 2016 and December 31, 2020, have recovered 23,906 privately-made firearms at potential crime scenes, including 325 homicides or attempted homicides, based on data from the Bureau of Alcohol Tobacco and Firearms. ®