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Ninth Circuit Lifts 3D Printed Gun Restriction Even as Biden Administration Action Imminent

3D Printed Gun
By Joseph Fawbush, Esq. on April 29, 2021 11:49 AM

President Biden has promised the Department of Justice will issue new regulations regarding ghost guns by May 8. Ghost guns are unregistered gun kits that can be ordered online and then assembled by the buyer. The regulations will also cover related 3D printed guns, the blueprints of which can be downloaded online and used to manufacture firearms that can be very hard to trace.

Meanwhile, the 9th Circuit held in a recent opinion that courts do not have the right to prohibit a Trump administration regulation making it easier to download blueprints for 3D printed guns.

Removing 3D Printed Guns From Munitions List

Congress gave the President power place items on the U.S. Munitions List in the International Security Assistance and Arms Export Control Act of 1976. Once on the U.S. Munitions List, the gun must be licensed and registered, among other import and export regulations under International Traffic in Arms Regulations (“ITAR”).

In 2018, a Trump administration proposed rule removed 3D printed gun files from the Munitions List, instead tasking the U.S. Department of Commerce to regulate them under the Commercial Control List. The net effect of this would be to make it easier to download the blueprints for 3D printed guns. The regulation was the result of a deal between the U.S. Department of State (DOS) and the designer of a 3D printed gun blueprint.

Shortly after, nearly two dozen state attorneys general sued the DOS to enjoin this rule. The district court agreed. The Ninth Circuit, however, reversed, finding that § 2778(h) of the Control Act prohibited judicial review of both the designation and removal of items on the Munitions List. Because the Rules were not subject to court review a preliminary injunction was inappropriate.

Judge Robert Whaley, sitting on the panel by designation, dissented. In Judge Whaley's view, the DOS's Final Rule was arbitrary and capricious, meaning he would have upheld the preliminary injunction.

What Does This Mean for 3D Printed Guns?

President Biden has publicly indicated a desire for stricter gun regulations, specifically for the ghost and 3D printed guns at issue in the case. While the Ninth Circuit interpreted the Control Act to force it to take a hands-off approach to the designation and removal of items on the U.S. Munitions List, ghost guns and 3D printed guns may go back on the list due to Executive action.

Meanwhile, advocates on both sides of the gun control issue will have to stay tuned to see what the Department of Justice's proposed rule will encompass.

Related Resources

The Second Amendment (FindLaw's Don't Judge Me podcast)

Journalists Win Big in Ninth Circuit Freedom of Information Act Appeal (FindLaw's U.S. Ninth Circuit)

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