Ghost Guns

3D-printed guns, or “Ghost Guns” are much more than a sci-fi fantasy, they have become a part of our reality. In 2012, a Texas based organization named Defense Distributed, posted Computer Aided Design files (CAD Files) to their website that allowed anyone with a 3D printer and an internet connection to manufacture their own, untraceable gun in their garage. The State Department, having the authority to regulate those who export firearms under 22 U.S.C. § 2778, found that Defense Distributed had violated the section by engaging in unregulated export of firearms data in violation of the statute, ordered the CAD Files be taken down. Defense Distributed filed suit in 2015, claiming that the State Department’s ruling was an unconstitutional prior restraint on speech, in violation of the First Amendment. After winning a few cases, the State Department settled under unusual circumstances, and decided to allow Defense Distributed to post the CAD Files online without restriction. In response, 8 states (MA, CT, NJ, PA, OR, MD, NY, WA) as well as the District of Columbia, sued the State Department arguing that the settlement violates the Administrative Procedure Act, as well as the Tenth Amendment.[1] The states were also able to secure an injunction prohibiting Defense Distributed from posting the plans until the suit is concluded.

Defense Distributed initially argued that the State Department’s enforcement of its’ regulation was an unconstitutional prior restraint. A prior restraint is some kind of rule/regulation that prohibits speech before the speech actually occurs. A prior restraint is only unconstitutional if it covers speech which is otherwise protected by the First Amendment. While internet postings are typically protected speech under the First Amendment, the Court has outlined certain kinds of speech that are not protected. Incitement, for example, is speech that goes beyond normal speech and calls for imminent lawless action/violence. While Defense Distributed doesn’t explicitly call for its users to download the plans and commit acts of violence, can they advance any other justification for posting plans to create untraceable firearms and firearm parts for anyone to download?

Defense Distributed did try to argue that their position was to advance an individual’s access to firearms in exercise of their Second Amendment rights. However, Second Amendment rights are not absolute. For example, a person must usually be 18 to purchase a long rifle, and 21 to purchase a handgun. Additionally, virtually all states require a person to obtain a license before they can carry a gun on them regularly. Even then, there exists restrictions for carrying firearms at schools, hospitals, government buildings, and places that serve alcohol as a primary source of their revenue. All firearms manufactured in the United States are required to have a trackable serial number printed on them, and, unless special circumstances exist, all sales are required to be recorded and reported.

In response to the Ghost Gun phenomenon, a few states have introduced amendments to existing gun laws to cover Gun laws. New York, for example, introduced an amendment criminalizing the manufacture and sharing of information necessary to create a Ghost Gun.[2] The amendment explicitly defines Ghost Guns and criminalizes their possession and manufacture. (if unregistered, without a serial number, and not made by a licensed gunsmith). Washington has introduced an amendment with a similar effect. Although the bill does not specifically contain the phrase “Ghost Gun”, an entire section dedicated to “Untraceable Firearms” and goes to great length to cover firearms without serial numbers registered with a federally licensed manufacturer.[3] The firearm further zeros in on Ghost Guns by creating an exception for antique firearms. New Jersey is another example of a state that has put forth an amendment addressing Ghost Guns. That amendment specifically criminalizes the purchase of firearms parts to, “illegally manufacture an untraceable firearm, known as Ghost Guns.”[4]

Comparing each of these statutes, it seems like the main concern of the states is the fact that these guns cannot be traced. When a person prints a gun in their garage, they are not printing serial numbers on their new firearms, nor can they print a valid serial number without knowing which numbers can already be attributed to other firearms. This is further evidenced by the Court rulings in the 2015 Defense Distributed case. The Court there weighed the interest that the states put forward (security, protection of citizens, ability to trace firearms) and the permanent harms that the states would suffer were these interests abridged, against the harms Defense Distributed would suffer to their First Amendment interests if they were allowed to continue posting the plans.

Legislation like this is not likely to be overruled, especially in light of the previously mentioned existing restrictions on a person’s right to bear arms. These statutes are narrowly tailored to address a specific problem. These statutes also attempt to bring a new form of firearms into compliance with existing registration laws. The bigger obstacle that I see regulators facing is getting these statutes passed in their states. Many states (although not those mentioned here) have a strong majority of people who believe in an absolute exercise of the Second Amendment. We likely won’t see restrictions in states like these any time soon. How effective can restrictions be if they aren’t applying to everyone?

Is a harms balancing test the right way to determine which rights matter more in a case like this? If so, is there ever a way to determine which rights are weighed heavier than others? When looking at the harm, should that test be whether the harm is temporary or permanent? What if the harm suffered by both sides is temporary, or both sides suffer a permanent harm?

Is the untraceable nature of Ghost Guns the biggest reason for concern? What about their creation and use by terrorist organizations, or those wishing to carry out mass shootings? We have seen that our current registration system does little to protect these occurrences anyway.

Where should gun groups like the NRA come down on this issue? On one hand, they have built their entire platform on the absolute protection of the Second Amendment. On the other hand, big gun manufacturers (Beretta, Smith & Wesson, Glock…) are the main source of revenue fueling the NRA. Ghost Guns have the potential to cut into their profits greatly, so their existence seems to present future financial concerns for these manufacturers. Will preservation of profits cause them to take a major pro-regulation stance on Ghost Guns?





~ by patricks27uf on March 15, 2019.

6 Responses to “Ghost Guns”

  1. When it comes to any right I think it’s important to remember that one person’s rights end where another person’s rights begin. In the case of guns, I think this is especially important to remember because the United States has a gun violence rate that is virtually unheard of in the rest of the world. I think a good point you made was that it is nearly impossible for these restrictions to be effective at all if they aren’t applied to everyone.

    Before jumping to whether this should be a harms balancing test, I think it’s important to determine how the court came to the conclusion that the code is speech. On one hand, a code for anything that doesn’t have the potential to cause violence, very obviously seems to be speech and protected under the first amendment. However, because of the nature of guns and the regulations we do have in place in the U.S., a person’s first amendment right to the codes to make guns in their own home ends where gun regulations begin. Just because the gun is manufactured in their own home does not necessarily mean they do not have to comply with current gun laws and regulations.

    I found it interesting that the judge ruled that these 3D prints cannot be sold online because it would be in violation of a federal export law so now these codes are being sold basically using a thumb drive. It seems this federal export law was important to the judge likely because of fears of terrorism. With terrorist organizations around the world finding innovative weighs to commit terrorism, it won’t be long before they start using 3D printed guns as they’re probably fairly inexpensive to manufacture and allows them to fly under government’s radar. Unfortunately, this is not going to do anything to protect us from homegrown terrorists here in the U.S.

    I think the fact that these ghost guns are untraceable is definitely an important factor, but more importantly I think there is concern about these making their way to home grown terrorists. Creating and selling instructions for making bombs appears to be illegal (passed by congress in 1994), and if that’s the case it seems plans to permit the making of guns should fall into that category as well. Although there is a second amendment right to bear arms, that right is not absolute as evidenced by the numerous restrictions currently in place. That’s true for every right, the Supreme Court has interpreted these rights and has both given and taken away the strength of these rights throughout time.

    It will be interesting to see how the NRA comes down on this because on one hand, they are funded primarily by gun manufacturers, but at the same time they advocate for an absolute second amendment right to keep and bear arms. They will probably favor restrictions on this just because the gun manufacturers line their pockets and money talks.

  2. The fascinating issue resolving around ghost guns definitely has to be the intertwining of the First and Second amendment. The legislation of prohibiting plastic guns seems like a simple goal that can be accomplished in most states, but the first amendment issues of sharing the information seems to be the most troubling for the courts to handle. There are so many sites that are hosted in foreign countries that share illegal content, such as newly pirated movies, that pop up all the time. Even if some legislation passes that prevent companies from hosting websites here in the United States, companies like Defense Distributed would likely just move offshore.

    I think one alternative states could look at is to provide some sort of legislation over the 3d printers themselves. Unfortunately, the likelihood that these designs just become more and more impressive seems an almost certainty and the perhaps legislation over 3d printers could come sooner than issues dealing with the 1st and 2nd amendments. I think this may be a solution to the issue of restrictions not applying to everyone. Although, I think we may see some success with these issues like we’ve been seeing with the bump stocks. Hopefully, it’s before any incident happens.

    I also think the distinction made by Pillip Zimmermann in the Wired article is very insightful and demonstrates a clear distinction about using the first amendment to distribute information. Encryption technology is something that can be very important to those who value their privacy in a time that appears our privacy is slowly fading away. However, the “bits” that makes up these untraceable and unregistered fire arms just make society less safe and if the courts were to perform a balancing test, I can’t imagine a situation where the rights of the person seeking to use the firearm patters are more infringed than the threat these pose to society. Those seeking a firearm have a legal and very clear path in obtaining one. These is no need to for a workaround in a county with lax laws. It would be interesting to see if the information is treated similarly to the information shared about bomb making.

    Lastly, I think that if anything the NRA is likely to encourage this fights for 3d printing guns. In the 21st century, it is the companies that improvise and adapt that seem to thrive. I have no doubt that firearm companies will simply adapt and place their most popular firearm “patterns” onto the internet if this movement acquires more legitimacy.

  3. This is a very interesting topic and you raised a few interesting points. Ghost Guns becoming a reality is something that many people would not have even thought possible years ago. Even today, this is probably something that many people still do not think about. I found myself wondering where would I find a 3D printer and actually how accessible is it. I went to Amazon (sorry, professor Jacobs) to look at the prices and it’s really not that expensive with prices starting around $200 (even though I would think the 3D printer you’d need to print a Ghost Gun would be more on the expensive end).

    I do think that it would be hard for Defense Distributed to show any other reasons for the files to be on their website other than easy access. With them wanting to advance a person’s access to firearms, without any processes in place, it allows those that don’t meet the law requirements to bypass them. The firearms can be manufactured by any person that has access to the files and gets their hands on a 3D printer. This could be a minor or a convicted felon that’s not allowed to have weapons. Providing the files that allows individuals their own gun is dangerous because there is no checks and balances on the process.

    I agree that restrictions won’t be as effective if not applied to everyone but they will have some effect. I also wouldn’t say a harms balancing test should be used to determine which rights matter more. The rights of the people should be treated as equal and a solution should be found that does not violate any of those rights. The untraceable nature of the Ghost Guns is a huge concern. Being able to trace deadly weapons is one of the main ways that we are able to get justice for those that are harmed. I think the gun being untraceable is what would make it appealing to terrorist organizations or those wishing to carry out mass shootings. Although we do have issues with the large numbers of these occurrences, we can possibly see an increase if more people have access to untraceable guns.

    Many may say that the NRA “should” support the Second Amendment regardless. However, at the end of the day, it is all a business and I do not think that the NRA will be happy with losing their main sources of funding. It would be difficult but I do believe that they would argue that they do not support unsafe practices and that the Ghost Guns would easily fall into that category.

  4. These ghost guns are fascinating to me but also terrifying. I agree that most states seem to be most concerned with the fact that these are untraceable deadly weapons. However, I believe that the average person’s biggest fear and concern is that the U.S. does not have effective gun control laws as it is. Adding another type of gun, a gun that can be made by anyone with a 3-D printer, is terrifying. Age restrictions and background checks will no longer matter. The whole point of gun control laws is to keep guns out of the hands of the bad guys. In this new scenario, as long as a bad guy has a 3-D printer, he can also have a gun.

    Terrorists organizations should be of great concern regarding ghost guns. Since these ghost guns will not set off a metal detector they could be snuck into large events, public transportation, airports, etc. It would be a shame to begin to allow these ghost guns with little regulation since it would only be a matter of time before a tragedy took place.

    In regards to the balancing test mentioned, I have always believed that the safety and lives of everyone should be a high priority. I further believe that the safety and lives of everyone outweigh the rights that people have in owning ghost guns. I do not see a beneficial purpose of having a seemingly unregulated system where anyone can make a gun. We have been trying to regulate who can own a gun and the types of guns one can own for a while now and this seems like it will only hinder the little progress that has been made. Further, 3-D printers are bound to evolve technologically as well, just like any other technology. With the evolution of 3-D printers, different sorts of materials are bound to become available to make 3-D printed objects. New materials could possibly make ghost guns even more dangerous.

    Your point in regards to the NRA is something I find interesting as well. Everyone knows the NRA is all about the money, so I would be curious to understand their views in regards to ghost guns. I would also not be surprised if the NRA tried to figure out a way to cash in on ghost guns since if the guns do become readily available, there is a huge profit to be made.

  5. The emergence of ghost guns as a convenient way for anyone with access to a 3-D printer to print as many guns has the potential to become a massive problem. The lack of identification on these weapons makes them desirable to groups such as drug cartels and other who engage in highly illicit activity. The basis behind the arrests of thousands of individuals and operations has been premised on resolving widespread unregistered weapons.

    Nonetheless, we find ourselves in a situation where one of the biggest lobbies in the United States in the NRA is now supporting what used to be a black and white issue. It is interesting that they have not come out against this yet due to the potential of ghost guns cutting into their profit margins as the technology proliferates.

    While a harms balancing test is usually not the best way to deal with two conflicting rights in a certain situation, it is hard to imagine a situation where employing such a test could be more appropriate; we are talking about the safety and lives of American citizens. The issue here is not a further restriction of 2nd Amendment rights, but an attempt to curb the use of unregistered weapons; an issue that society seems to have judged as being a negative throughout our history.

    It will be interesting to see if our elected representatives will see this apparent danger or big money in politics will once again sway the opinions of those we task with keeping us safe.

  6. As someone who flies weekly, I find the ghost gun issue extremely troubling. A ghost gun could of course pass through airport screening without detection. Ghost guns also include guns that a person puts together with untraceable parts. The gun isn’t printed as the 3D guns are, but their parts are not traceable. The gunmen at Tree of Life Synagogue in Pittsburgh used a ghost gun. Whether they are printed or merely assembled, ghost guns are surely a category of weapon that needs to be regulated. The million dollar question, of course, is how to regulate them? As with other weapons, a comprehensive federal policy to establish a minimal level of regulation would be best and then states could create more stringent regulation if they wished, as New Jersey has, even with regular guns.

    Is it possible that writing and sharing the code might be protected speech but the actual printing be considered conduct rather than speech? When Defense Distributed finally had a code and a printer that actually printed a gun which could actually be fired – there was some talk of regulating how the printing was done. For example, some argued that either the printer needed to be registered or the materials had to include some minute portion of metal capable of setting off an X-Ray machine. I haven’t heard anyone lately talking about the printers.

    Perhaps Patrick can say a little about the export controls part of it, although if he doesn’t know that piece (I did not assign it), I can help a little with it. I thought you might find the following story from the New York Times interesting. The police were investigating a drug ring and on the wire tap the defendants were discussing buying and assembling ghost guns. They knew not to have the parts shipped to New Jersey because the state had “some new law” covering the parts!

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