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Federal court rules ‘ghost gun’ plans can be shared online

The Liberator, a 3-D printed handgun created by Cody Wilson of Defense Distributed. (Defense Distributed/Facebook)
April 28, 2021

Build instructions for home-made and 3D printed firearms, sometimes referred to as “ghost guns,” can be shared online, a U.S. federal court ruled on Tuesday.

In a 2-1 decision, the San Francisco-based Ninth Circuit Court of Appeals reinstated a 2018 order by then-President Donald Trump’s administration, to remove home-made firearm designs from a State Department Munitions List, which required approval from the department to export any such weapons and blocked those plans from being shared online. The court’s decision, in effect, allows companies and designers to shared their 3D printed firearm designs online.

In 2018, the Trump State Department settled a lawsuit from a 3D printed gun company, Defense Distributed, requesting that its plans be taken off the State Department Munitions List. Those plans were placed on the munitions list in 2015, under then-President Barack Obama.

While the Trump State Department ordered the 3-D printed gun plans be removed from the munitions list, California, along with 21 other states and the District of Columbia sued and in 2020 a federal judge in Seattle blocked Trump’s order.

The majority opinion found that a 1989 provision added to the International Security Assistance and Arms Export Control Act of 1976, prohibits courts from reviewing and potentially overruling the State Department’s decisions to either add or remove a weapon from the munitions list.

The majority also noted a 1981 provision that the president must give notice to congress 30 days “before any item is removed from the Munitions List.” The majority took this rule to mean that so long as the president provided the notice, “whether to remove an item from the Munitions List is still within his discretion.”

U.S. District Judge Robert Whaley, an appointee of former President Bill Clinton and the sole dissenting judge, argued that the arms control law was intended to prevent the proliferation of dangerous weapons and thus the court should act on the side of safety in interpreting the law.

“According to an expert declaration provided by the States in the present case, the terms of the settlement permitting the export of Defense Distributed’s 3D gun files could lead to the proliferation of untraceable ‘ghost guns,'” Whaley wrote. “This potential increase in the accessibility of ‘ghost guns’ presents a serious threat to public safety, as ‘ghost guns’ have already been linked to multiple mass shootings in the United States.”

With the appeals court’s decision, President Joe Biden could still order 3D printed gun files be placed back on the State Department’s restricted munitions list. This month, Biden announced a raft of gun control plans, including regulate the spread of so-called “ghost guns.” Biden did not specify how the gun control measure would would but said the DOJ plans to “issue a proposed rule to help stop the proliferation of ‘ghost guns’” within the 30 days from his April 8 announcement.

A New York judge recently dismissed a case against a man charged with making “ghost guns” after determing federal agents had lied on a request for a warrant by mischaracterizing a solvent trap as an illegal suppressor. As a result of the faulty warrant, the judge said “this court must find there was a reckless disregard for the true nature of the item and must suppress any items recovered through the search warrant.”

The man charged with assembling “ghost guns” had run a business selling partially assembled firearms. Making and selling partially assembled firearms – often sold as “80% receivers” – is legal because they aren’t considered to be firearms under federal laws. It is also legal to possess complete homemade firearms, but selling complete firearms requires a license.