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Thursday, January 16, 2014

The Second Amendment Implications of Regulating 3-D Printed Firearms

Earlier, I posted about proposed California legislation that would require people to apply for serial numbers when making a firearm and affix this number in some way to the firearm. In that post, I concluded that the law would probably apply to 3-D printed firearms and I agreed with Josh Blackman's commentary that parts of the proposed statute seemed vague.

Towards the end of that post, I reiterated my view that the law will need to adapt to regulate 3-D printed firearms. 3-D printing technology is developing, with blueprints for home-printed firearms appearing on popular printing websites, and printed, metal firearms arriving on the scene. I noted that regulations on 3-D printed firearms could have Second Amendment implications, and in this post I seek to explore these implications.

While 3-D printing technology is still in a relatively early stage of development, I am not the first person to address the constitutionality of regulations on 3-D printed firearms. Peter Jensen-Haxel has written on the subject in the Golden Gate University Law Review. The full citation for his comment is: Peter Jensen-Haxel, 3D Printers, Obsolete Firearm Supply Controls, and the Right to Build Self-Defense Weapons Under Heller, 42 Golden Gate U. L. Rev. 447 (2012).

Jensen-Haxel correctly points out that the Supreme Court's decision in District of Columbia v. Heller established that individuals have a right to bear arms. While Heller struck down a firearm restriction because it prohibited the possession of usable handguns in the home, Jensen-Haxel is also probably correct to conclude that the ruling likely extends to the ability to procure a handgun. After all, if individuals are completely restricted purchasing or acquiring a handgun, they are effectively prohibited from possessing a handgun in the home. This seems to be the logic that was underlying the opinion of the Northern District of Illinois when it struck down Chicago's ban on acquiring firearms within city limits in Illinois Association of Firearm Retailers v. Chicago. If there is a Second Amendment right to acquire a firearm, restrictions on 3-D printers may implicate the Second Amendment, since 3-D printing is one way that people may acquire firearms.

But it is important to note that while the Second Amendment may indeed be implicated by restrictions on 3-D printing, it does not follow that these restrictions would violate the Second Amendment. Rights enumerated in the Constitution and its amendments are rarely recognized as conferring an absolute restriction on the government. As I have mentioned previously, courts have interpreted Heller as conferring some protection to the right to bear arms, but not unlimited protection. While the Supreme Court has not established a standard of review for Second Amendment cases, the lower courts typically uphold laws that restrict firearm possession if that laws pass intermediate scrutiny, meaning that the laws are substantially tailored to achieve important government interests.

Restrictions that are tailored to prohibit 3-D printing of firearms could arguably meet the intermediate scrutiny standards that most courts have applied. Governments enacting these restrictions would probably argue that the regulations are enacted to uphold the government's interest in public safety, which courts would likely deem an important interest.

The Government could argue that restrictions on 3-D printed firearms are substantially tailored to serve this interest because 3-D printing would make it very easy for individuals to print firearms made of non-detectable plastics, which are a threat to public safety. A reply to this argument is that making and possessing undetectable firearms is already illegal, so a restriction on 3-D printing is unnecessary and overbroad.

A more interesting argument the Government could make would be that the safety of the people printing the firearms is at risk. The Government could contend that firearms printed from the plastics commonly used in 3-D printers are unreliable and likely to malfunction and cause injury. Firearm owners' safety may be further endangered by the risk of faulty firearm designs that users may download, or the risk of adequate designed being compromised through poor cyber security.

Moreover, the Government may argue that restrictions on 3-D printed firearms do not constitute a substantial restriction on people's Second Amendment rights to possess firearms for self-defense in the home because individuals may obtain firearms by means other than 3-D printing. Heller addressed the importance of handguns in the home for purposes of self-defense, but it is not clear how far the Court's reasoning extends to cases involving other types of weapons. Admittedly, Heller rejected the argument that handgun bans leave individuals with the option of using long guns for self-defense, noting that handguns may be preferable for self-defense situations. But a ban on 3-D printed firearms alone would not necessarily need to restrict the possession of usable handguns in the home, meaning that the core right that Heller upheld would not be infringed. While Jensen-Haxel points out that freedom to choose how to defend oneself is an important individual interest, a great deal of freedom would remain even if the option of 3-D printed firearms is foreclosed.

Jensen-Haxel raises the interesting point that individuals with disabilities may not be able to use regular handguns and may only be able to preserve their self-defense rights by being able to print customized firearms. It remains to be seen whether this scenario would have a meaningful impact on courts' analysis, or if this analysis is too much of an outlier. One potential response may be that individuals with disabilities may be able to make customized firearms without using 3-D printers -- I have had commenters indicate to me that it is far easier and cheaper to make firearms from household items without the use of 3-D printers.

Jensen-Haxel also points out that there are no longstanding regulations restricting the making of one's own firearms for personal use. While Heller established that the Second Amendment protects an individual right to bear arms, the opinion clarified that a number of "longstanding" restrictions on firearm possession, noting examples of prohibitions of firearm possession by felons, and possession of firearms in government buildings, among other restrictions. While Jensen-Haxel argues that there is not a longstanding prohibition on the making of firearms for personal use, I do not think that this is particularly problematic for future restrictions on the right to make firearms. While these regulations may not have an explicit endorsement in Heller, that does not mean that they cannot pass intermediate scrutiny.

I think that the government has a strong argument for the constitutionality of regulations on 3-D printed firearms. Admittedly, restrictions on 3-D firearms involves technology unlike anything courts have seen, and predicting their treatment of new technology involves almost as much speculation as legal analysis. But given the limitations that lower courts have been willing to put on Second Amendment rights, I think that properly-drafted regulations on 3-D printed firearms can be constitutionally acceptable.

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