States Say Federal Rules Allow Proliferation of Ghost Guns

Twenty-one states claim new federal rules governing 3D-printed guns will allow unchecked sharing of computer files that let users easily create untraceable plastic weapons.

FILE – This May 10, 2013, file photo shows a plastic pistol that was completely made on a 3D-printer at a home in Austin, Texas. (Jay Janner/Austin American-Statesman via AP, File)

(CN) — A coalition of states claims there are a few factors the government didn’t consider before issuing new rules regulating 3D-printed guns. Among them: world peace, national security and foreign affairs.

In arguments Monday before a three-judge panel of the Ninth Circuit, Washington state Assistant Attorney General Brendan Selby called the unique dangers posed by 3D guns “novel and unprecedented.”

The federal government is appealing a preliminary injunction by a federal judge in Seattle, blocking a plan to transfer regulation of 3D-printed guns from the State Department to the Department of Commerce. U.S. District Judge Richard Jones, a George W. Bush appointee, found the plan would allow unlimited distribution of untraceable “ghost guns.”

“As the agency’s specific findings in the record show, the proliferation of 3D gun files on the internet likely renders ineffective arms embargoes, export controls, and other measures used to restrict the availability of uniquely dangerous weapons sought by those seeking to commit acts of terrorism or other serious crime — implicates serious national security and public interests,” Jones wrote.

Jones’ order blocks the transfer while a lawsuit filed by 21 state attorneys general continues.

As part of a decade-long project to reform the country’s weapons export regulations, the State Department transferred export control for firearms .50 calibers and under, semi-automatic and non-automatic, to the Department of Commerce in 2018.

The lawsuit, filed in the Western District of Washington, zeros in on the export of what the government calls “technical data,” — easily transmitted files describing how to quickly and cheaply create fully operational plastic guns using 3D printers. The states say the government didn’t notify the public before issuing the new regulations, in violation of the Administrative Procedure Act.

Arguing for the government, attorney Daniel Aguilar told the panel on Monday the Commerce Department’s rules still control designs for 3D guns, whether they are shared on a USB device, emailed or printed. Aguilar claimed the new rules are actually more restrictive over designs shared online because the rules impose new restrictions that remove 3D printing files from the public domain and require a license to post them online.

“And if you don’t obtain one, there are going to be serious civil and criminal consequences to that action,” Aguilar told the judges.

U.S Circuit Judge Ryan Nelson, a Donald Trump appointee, wondered why the states would oppose that.

“I guess I’m just wondering how they are harmed,” Nelson said. “Because they are advocating for, apparently, more regulation and when Department of Commerce gave more regulation to 3D guns — I’m trying to figure out where the harm is.”

But Selby said the harm is clear. He told the judges the rules regulate only one of the two types of files at issue: computer-assisted manufacturing files, or CAM files, are ready for insertion into a 3D printer. Those include instructions on how to use the machines that print the weapons.

But a second type, computer-aided design files, or CAD files, are the blueprints that were formerly considered “technical data” regulated under federal International Traffic in Arms Regulations. The final rules issued by the Department of Commerce specify that the new regulations apply only to files “ready for insertion” into a 3D printer. Selby said that means they only cover the second group — CAD files.

But that distinction is “illusory,” Selby said, because CAM files can be converted “almost instantaneously” into CAD files and thus evade regulation.

“It’s like saying something can’t be included in a Word file, but can be included in a PDF file, when all you have to do is go in and click ‘save as’ and change the formatting,” Selby said. “The regulation of CAM files only is effectively deregulation. It will not regulate the files.”

U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, and Senior U.S. District Judge Robert Whaley, a Bill Clinton appointee sitting by designation from the Eastern District of Washington rounded out the panel. The judges did not say when they would issue an order.

Despite their opposing positions on the regulations, attorneys for both sides agree on one thing: the danger presented by undetectable and untraceable 3D-printed weapons.

Aguilar emphasized the international risks.

“There’s a particular concern that this kind of information could go to people in Cuba or Iran or North Korea,” Aguilar said.

Selby, meanwhile, underscored the domestic danger.

“They can be used for political assassinations and hijackings, they can be brought through areas with metal detectors such as airports, stadiums and even courthouses. This is a case over whether the government should be permitted to open Pandora’s box.”

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