Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-17T03:54:45.242Z Has data issue: false hasContentIssue false
  • English
  • Français

Regulating 3D-Printed Guns Post-Heller: Why Two Steps Are Better Than One

Published online by Cambridge University Press:  28 January 2021

Thaddeus Talbot  and
Adam Skaggs
Get access Rights & Permissions [Opens in a new window]

Abstract

This article describes why a constitutional test that relies exclusively on history and tradition for deciding modern firearm regulations is woefully inadequate when applied to modern technologies. It explains the unique advancements in firearm technology — specifically, ghost guns — that challenge the viability of a purely historical test, even if legal scholars or judges attempt to reason by analogy. This article argues that the prevailing, two-step approach, which incorporates both history and tradition, and requires a judicial examination of the purposes and methods supporting a challenged firearm regulation, should apply nationwide. That a dissenting faction of conservative judges seeks to ignore the prevailing approach presents a potentially dangerous path for Second Amendment jurisprudence. This article draws from certain historical gun laws to illustrate the difficult legwork that analogies must do under a purely historical test. It uses the advent of ghost guns as a case study to offer guidance for judges in their rulemaking practices regarding Second Amendment cases.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue S4: Gun Violence in America: An Interdisciplinary Examination , Winter 2020 , pp. 98 - 104
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Lindell, C., “Meet Cody Wilson, the Austin Man Behind the Fight Over 3-D Printed Guns,” Statesman, August 13, 2018, available at <https://www.statesman.com/news/20180813/meet-cody-wilson-the-austin-man-behind-the-fight-over-3d-printed-guns> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
CBS News, “3D-Printed Gun Blueprint Maker Cody Wilson Says ‘The Debate Is Over,’” August 1, 2018, available at <https://www.cbsnews.com/news/3d-printed-gun-cody-wilson-says-gun-access-fundamental-human-right/> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
See Woollard v. Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013) (collecting cases applying two-step approach).Google Scholar
Silvester v. Becerra, 138 S. Ct. 945, 952 (2018) (Thomas, J., dissenting).Google Scholar
Giffords Law Center, Post-Heller Litigation Summary, June 2019.Google Scholar
D.C. v. Heller, 554 U.S. 570, 626–27 (2008).Google Scholar
But see Wilson v. Cook County, No. 1:17-cv-7002, 2018 WL 3707828 (N.D. Ill. Aug. 3, 2018) aff ’d, 937 F.3d 1028 (7th Cir. 2019) (applying a three-step test for assessing certain restrictions on particular categories of weaponry).Google Scholar
See, e.g., Kolbe v. Hogan, 849 F.3d 114, 160 (2017) (Traxler, J.); U.S. v. Masciandaro, 638 F.3d 458 (2011) (Niemeyer, J.) (applying intermediate scrutiny for Second Amendment challenges on a firearm serialization laws).Google Scholar
NY State Rifle & Pistol Ass'n v. City of New York, No. 18-280 (Apr. 27, 2020) (arguing that “some federal and state courts may not be properly applying Heller and McDonald.”).Google Scholar
Heller v. D.C., 670 F.3d 1244, 1275 (D.C. Cir. 2011).CrossRefGoogle Scholar
See Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007).Google Scholar
See, e.g., Hirschfeld v. ATF, Motion to Dismiss, 3:18-cv-103, (GEC) (W.D. Va. Apr. 10, 2019).Google Scholar
Rogers v. Grewal, 140 S. Ct. 1865, 1868 (2020) (Thomas, J., dissenting) (“Whatever one may think about the proper approach to analyzing Second Amendment challenges, it is clearly time for us to resolve the issue.”).Google Scholar
Greenberg, A., “I Made An Untraceable AR-15 ‘Ghost Gun’ in My Office—And It Was Easy,” Wired, June 3, 2015, available at <https://www.wired.com/2015/06/i-made-an-untraceablear-15-ghost-gun> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
Milkovitz, A., “Couple Charged with Killing Mother in Pawtucket with 3D-Printed Gun,” Boston Globe, available at <https://www.bostonglobe.com/2020/01/02/metro/couple-accused-killing-mother-pawtucket-with-3d-gun/?p1=Article_Inline_Text_Link> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
Stephens, A., “Ghost Guns Are Everywhere in California,” Trace, May 2017, available at <https://www.thetrace.org/2019/05/ghost-gun-california-crime/> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
Id.Google Scholar
Everytown, Untraceable: The Rising Specter of Ghost Guns (May 2020), available at <https://everytownresearch.org/reports/untraceable-ghost-guns/> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
Incidents Involving 3D-Printed Firearms (May 2019), available at <https://vpc.org/wp-content/uploads/2019/06/3D-guns-fact-sheet-May-2019.pdf> (last visited September 4, 2020) [hereinafter cited as Violence Policy Center Report].+(last+visited+September+4,+2020)+[hereinafter+cited+as+Violence+Policy+Center+Report].>Google Scholar
McKinnell, J., “The Rise of 3D-Printed Guns in America Could Have Dark Implications for Australia,” ABC News, July 31, 2018, available at <https://www.abc.net.au/news/2018-08-01/3d-printer-guns-in-america-prompts-australian-warning/10059704> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
See Violence Policy Center Report, supra note 19.Google Scholar
Brennan, D., ‘“Loner’ College Student Jailed for Making 3D Printed Guns with Designs He Found on the Internet,” Newsweek, available at <https://www.newsweek.com/loner-college-student-jailed-making-3d-printed-gun-designs-found-internet-1460336> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
See Violence Policy Center Report, supra note 19.Google Scholar
Gajanan, M., “The TSA Has Found 3D Printed Guns at Airport Checkpoints Four Times Since 2016,” Time, August 2, 2018.Google Scholar
Qualls, K., “TSA Confident It Can Detect 3D Printed Ghost Guns,” Global Post, available at <https://theglobepost.com/2018/08/03/tsa-3d-printed-guns/> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
Pucino, D., “Ghost Guns: How Untraceable Firearms Threaten Public Safety,” Giffords Law Center (May 2020); Owen, T., “People Are Panic-Buying Untraceable ‘Ghost Guns’ Online in the Coronavirus Pandemic,” VICE, available at <https://www.vice.com/en_us/article/g5x9q3/people-are-panic-buying-untraceable-ghost-guns-online-in-the-coronavirus-pandemic> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
18 U.S.C. § 922(p).Google Scholar
18 U.S.C. § 921(A), (B).Google Scholar
See e.g., Untraceable Firearms Act of 2020, S.__, 116th Cong. (2020).Google Scholar
Cal. Penal Code § 29180.Google Scholar
Conn. Pub. Act No. 19-6 (2019).CrossRefGoogle Scholar
Wash. Rev. Code Ann. §§ 9.41.090, 9.41.325.Google Scholar
See Duke Repository of Historic Gun Laws, available at <https://firearmslaw.duke.edu/repository/search-the-repository> (last visited September 4, 2020).+(last+visited+September+4,+2020).>Google Scholar
United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc) (“We do take from Heller the message that exclusions need not mirror limits that were on the books in 1791.”).Google Scholar
Siegel, R. B., “Dead or Alive: Originalism As Popular Constitutionalism in Heller,” Harvard Law Review 191, no. 122 (2008).Google Scholar
Volokh, E., “Michigan Court of Appeals Strikes Down Stun Gun Ban, Says Second Amendment Applies to Open Carry in Public,” Volokh Conspiracy, June 27, 2012, available at <http://volokh.com/2012/06/27/michigan-court-of-appeals-strikes-down-stun-gun-ban-says-second-amendment-applies-to-open-carry-in-public/> (last visited September 4, 2020); Volokh, E., “Nunchaku Are Protected by the Second Amendment,” Reason, December 18, 2018, available at <https://reason.com/2018/12/18/nunchakus-are-protected-by-the-second-am/> (last visited September 4, 2020); Volokh, E., “Second Amendment Protects Dirk Knives and Police Batons,” Washington Post, December 16, 2014, available at <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/16/second-amendment-protects-dirk-knives-and-police-batons/> (last visited September 4, 2020).+(last+visited+September+4,+2020);+Volokh,+E.,+“Nunchaku+Are+Protected+by+the+Second+Amendment,”+Reason,+December+18,+2018,+available+at++(last+visited+September+4,+2020);+Volokh,+E.,+“Second+Amendment+Protects+Dirk+Knives+and+Police+Batons,”+Washington+Post,+December+16,+2014,+available+at++(last+visited+September+4,+2020).>Google Scholar
N.Y. Penal Law § 400.12(a).Google Scholar
Laws of the State of Maine; to Which are Prefixed the Constitution of the U. States and of Said State, in Two Volumes, with an Appendix Page 685-686.Google Scholar
D.C. v. Heller, 554 U.S. 570, 626 (2008) (citing State v. Chandler, 5 La. Ann. 489 (1850)).Google Scholar
Ruben, E.M. and Cornell, S., “Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context,” Yale Law Journal Forum 121, no. 125 (2015); Meltzer, J., “Open Carry for All: Heller and Our Nineteenth-Century Second Amendment,” Yale Law Journal 1486, no. 123 (2014).Google Scholar
Brief for Second Amendment Law Professors as Amici Curiae Supporting Neither Party, New York Rifle & Pistol Ass'n, Inc. v. City of New York, 140 S. Ct. 1525 (2020) (No. 18-280).Google Scholar
See generally Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011).Google Scholar
United States v. Jones, 565 U.S. 400, 402 (2012).Google Scholar