An Absence of Federal Leadership Allows the Ghost Gun Threat to Proliferate

The elusive capabilities of 3D-printed ghost guns threatens to undermine existing federal legislation. The Undetectable Firearms Act of 1988 (UFA) prohibits the manufacture, sale, or possession of firearms that are not detectable by security screening devices.²⁷ With the support of the National Rifle Association, President Reagan signed the UFA into law in 1998 and Congress renewed it in 2003 and 2013. Given the ubiquity of downloadable manufacturing instructions, 3D printers allow users to easily make plastic guns that, while illegal under the UFA, can be smuggled into secure areas.

The ability to self-print plastic firearms also undermines the federal background check law. The Gun Control Act of 1968 (GCA) requires the central component of a firearm that houses the firing mechanism — the frame or receiver — to bear a serial number, and it cannot be purchased from a dealer without a background check. But a firearm is defined as any weapon that will “expel a projectile by the action of an explosive” or “the frame or receiver of any such weapon.”²⁸ Those who use 3D-printing technology to create their own frames or receivers, do not submit to background checks, and generally do not serialize gun components, making their weapons invisible to law enforcement.

The extent of the ghost guns problem has only widened due to federal inaction. While some members of Congress have urged ATF to address the panicked buying of ghost guns, including by introducing comprehensive reform,²⁹ Congress has failed to act. Simultaneously, President Trump's Department of Justice has acted to allow the online distribution of blueprints to build 3D-printed guns to anyone with a computer. Leadership on this issue has fallen to the states. Two dozen states have sued the Trump administration to stop the distribution of downloadable guns. In California,³⁰ Connecticut,³¹ and Washington,³² legislatures have passed their own bans on undetectable ghost guns.

If courts are to determine whether such bans on 3D-printed ghost gun inhibit a protected Second Amendment right then, under the history-only test, there must be a comparable historical technology or law. We next explore the challenges of using a purely historical framework to resolve the constitutional question.

Historical Metal Detection and 3D-Printed Guns

The first metal detector was invented in 1881 by Alexander Graham Bell, and it was not until four decades later that the first portable metal detector was invented. Modern metal-detection systems were not widely adopted until even later. The first airport to install metal detectors did so in 1970, and other airports only gradually followed suit. So it is not surprising that the first federal law prohibiting plastic guns that cannot be detected by a magnetometer, the UFA, was not passed until the end of the twentieth century, in 1988.

We assume, for two reasons, that under a text, history, and tradition approach, legislative precedent dating to the end of the twentieth century would be insufficiently “longstanding” to establish a presumption of constitutionality.³⁴ First, courts have not held laws of this vintage as sufficiently grounded in history to be presumptively lawful. This is true even though Heller endorsed laws dating to the nineteenth and early twentieth centuries as longstanding. Second, scholars have argued that judicial reliance on contemporary laws to ascertain the original meaning of the Constitution contradicts the goals of originalism.^{Reference Siegel35} We also assume that 3D-printed guns are “arms” for purposes of Second Amendment analysis, since they are closer in functionality to the handguns Heller deemed protected than to other weapons courts have held are “arms,” from stun-guns to nunchakus, dirk knives, and police batons.^{Reference Volokh, Volokh and Volokh36} So if the Undetectable Firearms Act is not sufficiently longstanding to justify a 3D-printed gun ban under a history-only test, the question becomes whether there are other, older laws sufficiently analogous to uphold federal firearm detection laws without assessing the burdens imposed on gun rights and the benefits for public safety. We examine some potential candidates and conclude there are not.

Quality Control Laws

Beginning in the 1970s, quality-control laws aimed at prohibiting the sale of cheap, fragile guns called “Saturday Night Specials” that were widely available to criminals. States like New York maintained “minimum standards of quality control” by setting specifications as to the materials used to make guns. Melting point tests were used to make sure that guns were made from strong metals.³⁷

These quality-control laws, like the UFA, date only to the latter half of the twentieth century, and may be insufficiently old to establish the UFA's constitutionality under a history-only approach. But they arguably have roots in older laws dating to the early nineteenth century that required guns to pass safety and quality inspections before being sold. These laws authorized “provers of gun barrels,” to “try the strength” of firearms and mark them as passing inspection.³⁸ To reinforce these safe use standards, governments imposed criminal penalties, asset forfeiture, and even incarceration.

Whether dating to the nineteenth century or the 1970s, however, these laws are a sub-optimal analogue to laws prohibiting undetectable firearms made of plastic. True, throughout American history, laws have regulated materials used to build guns, just as the laws aimed at 3D-printed guns regulate guns made of plastic. The goals of these laws, however, are entirely different: through history, quality-control laws have aimed to protect users by outlawing guns that might malfunction or explode in a user's hands, or otherwise degrade over time. In the colonial era, these laws were tied to ensuring guns were of sufficiently high quality to guarantee militia readiness in instances of attack. In the 1970s, these laws were designed to limit the availability of inexpensive and low-quality guns fueling urban crime. By contrast, regulation of the materials used in guns to ensure they can be detected by a magnetometer aim at preventing them from being smuggled into secure locations.

Quality-control laws touch on the materials from which guns are built for very different reasons. As such, they are an inadequate analogue for contemporary laws that prohibit undetectable plastic guns.

Sensitive Place and Time Laws

If bans on undetectable firearms aim at preventing guns from being smuggled into secure locations, then perhaps an adequate analogy can be found in laws that historically have banned guns from “sensitive places.” Heller itself deemed laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings” as longstanding and presumptively lawful. If sensitive-place bans are constitutional, and bans on undetectable guns are a means to effectuate them, should that resolve the question in favor of their constitutionality under a history-only test?

We would argue not. It is true that “sensitive place” laws have throughout history regulated the presence of guns in enumerated locations like schools and government buildings, and also in places like courtrooms, polling places, houses of worship, and public parks. The reasons for banning guns in sensitive places vary. In a courtroom tensions run high leading to escalation into an armed confrontation. At polling places, such laws aim to prevent voter intimidation. By contrast, modern metal detection laws are principally concerned not with where a firearm is possessed, but with the materials that make the gun detectable in the first instance. While the UFA does require that firearms be detectable by security screeners “commonly used at airports,” it does not limit the ban on undetectable guns to airports — or any other particular locations. It makes possession of an undetectable, plastic gun illegal anywhere, including even in the home, where Heller tells us the Second Amendment right is at its apex. Laws like the UFA prohibit possession of a particular type of gun anywhere, not the possession of any type of gun in one particular place. Thus, placebased laws prohibiting people from bringing guns into particular locations seem an inadequate comparator to resolve constitutional questions concerning laws that prohibit possession of a particular variety of gun, even in the home.

Moreover, were bans on guns in sensitive places sufficiently analogous to laws like the UFA because banning undetectable guns helps effectuate bans on guns in particular places, it would be difficult to discern a limiting principle. If banning gun possession by minors might contribute to keeping guns out of schools, would sensitive place laws provide an adequate historical analogy for minimum age laws? If banning gun possession by criminal defendants helps effectuate bans on guns in courtrooms, under a history-only test would sensitive place laws justify bans on possession by those accused, but not convicted of certain crimes? As with these examples, it proves too much to suggest that a ban on carrying any type of gun into one particular place justifies banning possession of a single type of gun everywhere.

Open Carry Laws

A final analogy for undetectable gun bans might be historical laws permitting open carry or preferring openly visible guns to concealed arms. Certainly, there is ample evidence that concealed weapons have been historically disfavored, and Heller itself noted that the vast majority of courts through nineteenth century found bans on concealed weapons constitutional.³⁹

But here, too, the analogy breaks down. First, Heller only cited historical decisions from southern state courts that endorsed open carry. The South's open carry tradition differed in practice from most of the country. In the northeast, mid-west and western portions of the country, the civilian carrying of guns in public was broadly prohibited. Scholars have also argued that Southern gun culture was borne out of a shameful past of slavery and hypermasculinity.^{Reference Ruben, Cornell and Meltzer40} Slaveowners openly carried weapons in fear of slave uprisings and skirmishes with Native Americans. Post-Emancipation, concealed carry was denounced as dishonorable because it was thought to escalate routine disagreements or public confrontations. For Southern open-carry laws to serve as the appropriate analogy to justify modern bans on undetectable (or concealed) guns would require relying on a tradition that was limited to one region and that advanced entirely different goals than those served by undetectable gun bans today.

Second, basing constitutional judgment calls today on the traditions of a bygone era may be problematic in a context of evolving social mores. Today, those who wish to carry guns in public overwhelmingly prefer concealed to open carry. As late as the 1980s, concealed carry was illegal in almost every state; today it is legal in all 50 states. The trend is notably toward deregulation of concealed carry. As recently as 2014, all but four states required a license to carry a concealed gun in public. Now, fifteen states have eliminated the licensing requirement altogether. A robust political movement claims not only that it is good policy to eliminate concealed carry licensing, but that doing so is compelled by the Second Amendment. This so-called “constitutional carry” movement suggests that any restrictions on carrying hidden guns violate the Constitution.

Ultimately, open carry analogies expose the reality that history rarely speaks with a unified voice. Making contemporary constitutional problem-solving depend on analogies to distinguishable regulations and gun cultures is problematic. Like quality control and sensitive place laws, Southern open carry laws are an inadequate historical analogue for modern regulations addressing modern technological developments.