The issues with the regulation of 3D printed guns

The issues with the regulation of 3D printed guns

I. Introduction

Three-dimensional (3D) printing is a fairly new manufacturing technology that can produce a wide range of products that has rapidly grown in popularity.^[1] Close to 600,000 commercial 3D printers were sold in 2018 alone.^[2] The process of 3D printing, sometimes referred to as “additive manufacturing,” is fairly straightforward.^[3] In short, a computer-directed 3D printer creates the desired article by layering liquid plastic material to produce a computer-aided design (CAD) file’s schematic.^[4] Without question, 3D printing has many economic and societal benefits. In the metals sector, for instance, 3D printing technology is used by metal parts suppliers to lower costs and minimize waste.^[5] In healthcare, 3D bioprinting is used to create living human cells or tissue for use in regenerative medicine and has removed the need for animal testing.^[6] As the pandemic created an unprecedented demand that not all healthcare systems around the world were not equipped to deal with, several additive manufacturing firms began designing and manufacturing open-source PPE for healthcare workers around the world.^[7] Despite the clear economic and societal benefits of 3D printing, its drawbacks – exposed by America’s festering gun violence epidemic^[8] – implicate public safety, public health, national security, and even intellectual property rights.

II. A Snapshot of the Issue

Serial numbers engraved into firearms allow law enforcement to track weapons to their manufacturer, seller or original owner, and in recent years, home manufacture of guns devoid of these identifying markings has become more and more common.^[9] Firearms trace data is used by law enforcement to discern patterns in gun trafficking, but this data also helps law enforcement solve isolated crimes by identifying the first purchaser – whether legal or “straw” – of a gun.^[10] While America has a history of home manufacture of weapons for personal use, the home manufacture of guns lacking serial numbers is something quite new. Colloquially, these untraceable guns have been referred to by the media, law enforcement and others as “ghost guns.”

Broadly speaking, ghost guns can be acquired in two ways; there is a common misconception, however, that all “ghost guns” are necessarily 3D-printed. The most popular method for creating a ghost gun involves buying pre-made parts and putting them together at home.^[11] This entails purchasing an 80% lower receiver and some other parts. While handguns have one receiver, assault rifles have two: an upper and a lower.^[12] The lower receiver is the part of the rifle legally considered a “firearm” under federal law and so must be serialized by the manufacture.^[13] The decision to regulate the lower rather than the upper receiver was grounded partly in the integral nature of the lower receiver to the construction of a rifle, but it was also based on the fact that other parts of the rifle are simply harder to regulate. For instance, while a layperson may not be able to distinguish a new pipe from Home Depot from brand new rifle barrel, that same person seeing the shape AR-15 lower receiver for the first time would likely presume that it was a rifle’s foundational building block.

Alternatively, one can obtain a ghost gun by ordering a 3D printer Amazon for around $20 then printing a ghost gun or the core parts thereof at home.^[14] According to one estimate, the average cost of a basic 3-D printer that uses plastic filament (the material generally used for 3-D print guns, and Legos) is less than $15.^[15] Printer in hand, one only needs to purchase some materials and tools, download a computer file and click “print.” Little expertise is needed,^[16] and though 80% lower receivers are already easily purchased by “prohibited persons” as defined by the Gun Control Act of 1968, 3D printing makes it much easier.^[17]

A person in possession of an 80% lower receiver can complete the gun by drilling several holes into the lower receiver and connecting widely available parts, such as barrels, stocks, magazines, and upper receivers. These parts are often bundled together and sold as Upper Parts Kits with IKEA-like instructions. According to one ATF agent, “[i]f you can put Ikea furniture together, you can make one of these.”^[18]. Because the Bureau of Alcohol, Tobacco and Firearms (ATF) – the agency tasked with enforcing federal gun laws and promulgating related rules – has issued guidance stating that 80% receivers not “firearms” under the Gun Control Act of 1968, the business practice of selling 80% lower receivers and Upper Parts Kits – or ghost guns – is entirely legal.^[19] An 80% receiver and a complete receiver are virtually indistinguishable but for several drill holes and some filing.^[20]

Broadly speaking, 3D printing involves two types of computer files: a computer assisted design (CAD) file and a stereolithography (STL) file.^[21] Specifically, STL files contain code for the appearance and dimensions of a design but also clear identification of the materials used, the tolerances selected and the means for assembly.^[22] For this reason, some fear that intellectual property thieves will begin to focus on stealing STL files as 3D printing becomes more of an integral practice within manufacturing.^[23]

Despite the foregoing, the dissemination of downloadable files for guns remains completely free of federal oversight.^[24] Today, gunsmiths who make 3D-printed 80% receivers with the intention of selling or otherwise transferring them to someone else need not obtain a license from ATF, keep a record showing to whom they transferred each gun, nor imprint an ATF-issued serial number on each gun.^[25] If it is not already clear, the advent of downloadable guns (and their parts) that can be manufactured on cheap 3D is unique and profound public health threat.

III. Where We Stand

Though I steadfastly support President Biden’s recently unveiled Executive Orders targeting ghost guns, they seem to be aimed at stemming the proliferation of 80% receivers and leave out proposed regulation of downloadable guns in the 3D-printing space.

Like any gun regulation, ghost gun regulations that have been proposed will be easy to evade.^[26] As Second Amendment expert Jim Jacobs notes, “[a] gunsmith who cannot pass a background check would likely not be concerned about a misdemeanor violation of a license requirement.” ^[27] The same could be said for gunsmiths who knowingly sell guns to felons, and for gun fanatics who oppose gun control for strictly ideological reasons. ^[28] Setting issues of compliance with ghost gun regulations aside, this policy will be difficult to enforce as well. First, arrests would presumably involve the rare situations “where the non-complying gunsmith has been apprehended for using the gun to commit a crime.”^[29] Second, there is always a possibility that federal action flowing from Biden’s Executive Orders causes a Streisand effect.^[30]

This effect would be compounded by likely technological advancements that would only cut costs further than present day 3D-printing already has. In short, while I am hopeful that President Biden’s recent Executive Orders will stem the flow of ghost guns into our communities, I fear that unless the ATF shocks the world and amends the definition of “firearm” in the Gun Control Act to include blocks of metal or “blanks,” bad actors like Cody Wilson will continue to circumvent federal regulations. To illustrate, if the GCA’s definition “firearm” definition is amended to encompass 70% lower receivers, I fear that another Cody Wilson will come along and disseminate CAD files containing schematics for 65% lower receivers on the Internet. In effect, unless the definition of “firearm” is amended to include a block of metal made into a receiver by a 3D printer, the government and coders will be caught in an endless game of wack-a-mole. Clearly then, the job is not done as no federal legislation exists today that bans the sharing of ghost gun blueprints. But what next?

The Constitutional Quagmire

Though the Second Amendment underpins almost any discussion of gun regulations, it would probably not be a significant obstacle in tacking the issue of downloadable guns despite America’s tradition of at-home gun manufacturing.^[31] Rather, most arguments supporting access to 3D-printed guns do so on First Amendment grounds. As Harvard Law Professor Noah Feldman notes, “the government could almost certainly prohibit unregulated home manufacture of guns” without violating the Second Amendment. However, Feldman opines that the First Amendment probably protects computer code that directs a 3D printer as free speech. In essence, guns have become information shielded by the First Amendment.

As there are intellectual property exceptions in First Amendment jurisprudence, and as it has been reported that Cody Wilson is generally opposed intellectual property rights and that he hopes to help “dismantle the existing system of capitalist property relations[,]”^[32] why not use intellectual property law as a vehicle to arrive to where the federal government has failed to? Granted there are several bills in Congress, time is of the essence and these bills do not have bi-partisan support.^[33] And from the gun industry’s standpoint, didn’t the music industry lose some control over its product once music became digitized on mp3s files?

A Viable Path Forward?

One academic researcher, Charles Duan, suggested that copyright law may be used to rein in the proliferation of downloadable guns.^[34] Intriguing but a tad far-fetched, Duan posited that, since the digital schematic of a plastic gun receives a copyright,^[35] the government could take ownership of that copyright under the Fifth Amendment’s Takings Clause.^[36] Duan explained that, under Kelo v. City of New London,^[37] the Takings Clause allows the government to exercise its sovereign right to acquire private property for the public interest.^[38]

In theory, Duan’s proposal may also prevent downloadable guns from getting into hands of bad actors by eliminating easy opportunities for theft of CAD and .dd files containing intellectual property in the form of digital gun blueprints. Broadly speaking, IP theft has been a problem across the Internet for years. Granted most intellectual property theft can be traced to China, the scope of IP theft in the U.S. is significant.^[39] On top of pecuniary loss, IP theft can cause reputational damage to the original maker of the counterfeited product and loss of competitive advantage in the relevant market. Further, IP theft implicates national security.^[40] Relatedly, intellectual property thieves can use the Internet to steal intellectual property from 3D printers. A 3D printer that lacks appropriate security controls becomes vulnerable to hackers attempting to gain access to the IP stored on the machine, and as 3D printing became more integrated into American manufacturing, some IP thieves began to shift their focus towards stealing the stereolithography (STL) files, which contain not only the appearance and dimensions of a component but also clear identification of the materials used, the tolerances selected and the means for assembly.^[41] However, using copyright law to fill in the gaps of federal gun regulations is a very slippery slope. As Duan wisely acknowledged, the government could exploit copyright law by transforming it into a “general-purpose censorship tool.”^[42] For this reason, I do not think Duan’s idea is tenable; in fact, it may add fuel to the fire. With this in mind, it seems that the only viable path forward involves Congress following President Biden’s lead in taking and meaningful action against the rising threat downloadable ghost guns.