To: Interested Parties
From: Jonas Oransky, Legal Director, Everytown for Gun Safety
Re: The Clock is Ticking to Prevent the Online Publication of Files for 3D-Printed Firearms
A dangerous opinion out of the Ninth Circuit has created an imperative for immediate regulatory action from the Administration before gun rights extremists are permitted to publish online files for 3D-printed firearms, undermining our core laws and enabling the widespread possession of illegal firearms. Everytown Law has supported litigation from 23 attorneys general around these files ever since the Trump State Department first indicated it would take adverse action to remove existing regulations that prevent publication. If it takes effect (which could happen as soon as 21 days after the Ninth Circuit’s April 27 decision), last week’s opinion can provide exactly the dangerous spark we have been trying to avoid. Indeed, in the days after last week’s decision, extremists immediately posted thousands of printable gun files online. While the State Department moved quickly to require removal of those files, the rapid posting shows how eager those actors are to spread these files broadly — and how quickly they will likely seize on a coming change in the law to sow chaos.
Fortunately, the Biden-Harris administration has tools it can deploy immediately to reverse the Trump action, restore the status quo, and prevent publication of these dangerous files. More info about the case and how the administration can proceed is below.
The Ninth Circuit opinion vacated a lower court preliminary injunction that has thus far blocked Trump-era rules loosening controls of firearms export from taking effect with regard to the publication of 3D-printing gun files. Those rules, originally published in January 2020, would remove so-called “technical data” from the U.S. Munitions List (USML), effectively moving export controls from the State Department to the Commerce Department. Strong State Department controls, which have prevented publication of these files, would be replaced by comparatively weak Commerce Department controls that could allow unchecked publication of 3D-printing gun files — as the state AGs have warned, “result[ing] in widespread, easy access to downloadable guns with no restrictions.”
The state attorneys general could certainly act to seek en banc review and continue the litigation. However, there are multiple ways the administration can act immediately to stop the publication and downloading of these files — and to put this issue to rest:
- The best and most protective option is to preserve the status quo by reversing the Trump-era regulations. The State Department can avert disaster and restore its regulations that have already proven maximally restrictive on the proliferation of 3D-printing gun files. While much of the Trump firearm exports rule went fully into effect in 2020, the lower court enjoined its application to 3D-printing gun files. The State Department can immediately issue a new interim final rule that permanently re-lists this technical data on the USML — a step which does not require time-consuming notice-and-comment procedures of regular rulemaking. Subsequently, the Department of Justice could seek to end ongoing litigation altogether, by seeking to drop its appeal in the Ninth Circuit due to the changed circumstances of the State Department’s new rulemaking. At a minimum, State can publicly announce that it intends to reverse the Trump-era rules, enabling the Department of Justice to ask the court to hold in abeyance the effect of any adverse ruling, pending finalization of new regulations. This memo that lays out these steps with more background.
- If the administration does not want to reverse the regulations entirely, it can act instead to strengthen the Commerce Department controls that will come into effect with the lifting of the injunction. Commerce can immediately issue an interim final rule to address the many shortcomings in its Trump-era regulation — and it has the power to do so without undertaking the notice-and-comment process. This action, detailed in this memo, would strengthen a rule that is vague and plainly insufficient to prevent publication as effectively as the State Department controls.
- Finally, if the State Department does act, we urge the Department to reverse not just the elements of the Trump rule that pertain to 3D-printing gun files, but the entire rule — restoring State Department jurisdiction over small arms exports as well. Placing small arms back on the USML would restore Congressional oversight of significant small arms sales, ensure more robust human rights, national security, and corruption controls, require licensing of small arms brokers, and require end-use monitoring to catch instances in which small arms exports end up in the wrong hands.