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9th U.S. Circuit Court of Appeals Seal (ca9.uscourts.gov)

SF Appellate Court Rules That 3D Ghost Gun Plans Can Go Online Without Government Approval

Biden Administration expected to create new restrictions on 3D plans by May 8th

By Evan Symon, April 28, 2021 10:22 am

The 9th U.S. Circuit Court of Appeals in San Francisco ruled on Tuesday that 3D blueprints for “ghost guns” can be posted online without State Department approval.

In a 2-1 decision, the court overturned a U.S. District Court injunction from March 2020 that halted the regulatory transfer of 3D printed ghost guns from the State Department to the Department of Commerce. The injunction had also found that blueprints for ghost guns, which are unfinished firearms that can be built from different parts to allow buyers to get around background checks and trackable serial numbers, would need to be placed back on a State Department list requiring a license to export, which removed all plans from being posted online.

U.S. Circuit Judges Jay Bybee and Ryan Nelson noted in their opinion that the District Court didn’t have the authority to review the changes to State of Washington V. Department of State last year. Specifically, the 1976 International Security Assistance and Arms Export Control Act forbid judicial review, thus rendering the 2020 injunction null and void.

“Because Congress expressly precluded review of the relevant agency actions here, we vacate the injunction and remand with instructions to dismiss,” said Judge Nelson in the Majority opinion on Tuesday.

U.S. District Judge Robert Whaley, the lone dissenter, questioned why the U.S. Government had changed their view on ghost guns last year and reiterated the need for oversight.

“The Department of State has never explained why, after securing several victories in the litigation with Defense Distributed, it decided to settle and agreed to permit the export of 3D gun files, even though DOS had argued that the export of these files would irreparably harm the United States’ national security interests,” said Whaley in his dissenting opinion. “I disagree with the majority’s holding which allows this new regulatory system to escape appropriate oversight.”

While 3D plans for ghost guns no longer need State Department approval to post online due to the ruling, it may ultimately be short-lived. The Biden administration is due to release new ghost gun rules by May 8th, specifically targeting more restrictions for 3D printed ghost guns.

And in California, a new ghost gun reclassification bill, AB 1057, would even further limit the circulation of ghost guns if passed.

“California’s bill and Biden’s upcoming restrictions would be a one-two punch on limiting these guns,” explained Rodrigo Schaeffer, a firearms advisor, to the Globe. “Biden is going to restrict 3D printed guns, with California’s new definition of ghost guns as firearms jabbing into the market. Both are going after easy access to guns, but both have issues. Biden’s plan goes after the few 3D printed guns out there, but as any gun enthusiast will tell you, they aren’t great guns. It uses one of the smallest bullets possible, because anything else would just destroy the plastic. Try firing a .357 bullet in a 3D printed gun, and it would be like putting a shotgun shell into one of those plastic flare guns. Bad things happen.

“As for the California bill, it’s going to hit responsible gun owners who want good replacement parts.

“The two are tied together though in many ways. The court did rule to allow blueprints for now, but once the Biden rules come down, California will likely push it even more.”

As of Wednesday, state Attorney General Rob Bonta is currently reviewing the Appellate Court decision, with action not likely until the Biden 3D plans are announced.

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Evan Symon
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