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Crime in the Age of Printable Guns: Methodologies and Obstacles to Prosecuting Federal Offenses Involving 3D-Printed Firearms

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Crime in the Age of Printable Guns: Methodologies and Obstacles to Prosecuting Federal Offenses Involving 3D-Printed Firearms CRIME IN THE AGE OF PRINTABLE GUNS: METHODOLOGIES AND OBSTACLES TO PROSECUTING FEDERAL OFFENSES INVOLVING 3D-PRINTED FIREARMS Andrew W. Eichner* INTRODUCTION .......................................................................................... 189 I. FEDERAL CHARGING STRATEGIES FOR OFFENSES INVOLVING 3D- PRINTED FIREARMS ................................................................................... 193 A. Title 18, United States Code, § 922(g) and the Possession of 3D- Printed Firearms by Prohibited Persons ................................................ 193 B. Prosecutions Based on the Unique Characteristics of 3D-Printed Firearms ................................................................................................. 202 1. Title 18, United States Code, § 922(p) and the Undetectable Firearms Act ...................................................................................... 203 2. 26 U.S.C. § 5861 and the National Firearms Act .................. 208 II. 3D-PRINTED FIREARMS AND THE UNTRACEABLE GUN CRISIS ........ 211 A. Firearms Tracing: A Modern Solution (in Development) for Deterring Gun Violence ........................................................................ 212 B. Untraceable: 3D-Printing and the Rise of the “Ghost Gun” ..... 215 1. The Multifaceted “Receiver” Problem .................................. 217 2. Regulating 3D-Printers as a Mechanism for Firearms Tracing ... .............................................................................................. 222 CONCLUSION .............................................................................................. 225 INTRODUCTION In May 2013, at an unidentified remote shooting range somewhere south of Austin, Texas, the world’s first 3D-printed firearm was successfully test- * Assistant United States Attorney, Southern District of Mississippi. Captain, Tennessee Air National Guard. J.D., The University of Texas School of Law, 2012. B.A., Boston University, 2009. The opinions expressed in this Article in no way reflect the views of the Tennessee Air National Guard, the United States Air Force, the Department of Defense, the United States Attorney’s Office for the Southern District of Mississippi, the United States Department of Justice, or the United States Government. All opinions are entirely the Author’s own. Additionally, all sources referenced in this Article are publicly available and are unclassified. The Author would like to thank his wife, family, friends, and all of the people who helped him in the editing process for their advice and support. 190 Vermont Law Review [Vol. 45:189 fired for the first time.1 Developed by Defense Distributed and dubbed “the Liberator,” the weapon was composed almost entirely of plastic, with fifteen of the gun’s sixteen functional pieces being printed inside the designer’s “$8,000 second-hand Stratasys Dimension SST 3D printer, a machine that lays down threads of melted polymer that add up to precisely-shaped solid objects just as easily as a traditional printer lays ink on a page.”2 The sixteenth piece, the only non-printed component required to operate the firearm, was “a common hardware store nail used as its firing pin.”3 The firearm, being operated remotely for safety reasons, fired a single standard .380 caliber handgun round into the Texas landscape.4 The propellant’s explosion inside the firearm left the barrel and the body of the weapon entirely unscathed.5 This moment—the advent of 3D-printed, functional firearms—was undeniably historic, though it also exposed some serious shortcomings in the blooming technology. The firearm misfired a second .380 caliber round,6 and when the designer replaced the barrel with “a higher-charge 5.7x28 rifle cartridge . the gun exploded, sending shards of white ABS plastic flying into the weeds and bringing the Liberator’s first field trial to an abrupt end.”7 Regardless of these secondary technical failures, the single successful shot from the Liberator generated near-immediate consternation from various groups across the United States. Within days of the test, political opposition began calling for legal safeguards to prohibit such weaponry.8 The controversy did nothing to deter the firearm’s designer Cody Wilson,9 who quickly returned to the same location to conduct another test—this time firing 1. Andy Greenberg, Meet the ‘Liberator’: Test-Firing The World’s First Fully 3D-Printed Gun, FORBES (May 5, 2013) [hereinafter Greenberg, Meet the ‘Liberator’], https://www.forbes.com/sites/andygreenberg/2013/05/05/meet-the-liberator-test-firing-the-worlds-first- fully-3d-printed-gun/#76acbd3b52d7. 2. Id. 3. Id. 4. Id. 5. Id. 6. “[T]he firing pin failed to hit the primer cap in the loaded cartridge due [to] a misalignment in the hammer body, resulting in an anti-climactic thunk.” Id. 7. Id. 8. Id. 9. Cody Wilson, the figurehead of the Liberator’s design team, is himself a controversial figure. Wilson described his technology as “enabling individuals to create their own sovereign space” with the government “increasingly be[ing] on the sidelines . .” Id. Furthermore, “Wired [Magazine] included Wilson in its list of the 15 most dangerous people in the world. The Coalition To Stop Gun Violence calls him a ‘hardcore insurrectionist’ who advocates anti-government violence.” Id. (citing The 15 Most Dangerous People in the World, WIRED (Dec. 19, 2012), https://www.wired.com/2012/12/most- dangerous-people/). 2020] Crime in the Age of Printable Guns 191 the Liberator by hand.10 The second test was also a success, with the firearm operating more or less as intended with “no obvious signs of damage other than a cracked pin used to hold the barrel in place.”11 In the years since the Liberator was first successfully discharged, the technology for 3D-printed firearms has improved as the controversies surrounding their existence have intensified.12 Debate surrounding access to the blueprints necessary to create 3D-printed firearms, technically referred to as computer-aided design (CAD) files, has heatedly escalated across the political spectrum. Critics of the technology have labeled it a crisis affecting public safety and national security, often citing hypotheticals surrounding access to firearms by prohibited persons and the potentially untraceable nature of 3D-printed firearms, while proponents have argued that access to the technology is protected as a constitutional matter.13 Even today, the accessibility of CAD file blueprints and the firearms they can produce is in a state of near-constant flux, with their legality still being a matter of intense debate between the Federal Government and multiple State Governments, and even between the branches of the Federal Government.14 While the argument over the general accessibility of 3D-printed firearms and their blueprints continues, there are still legal-enforcement mechanisms 10. Id. 11. Id. 12. As of July 2018, at least 1,000 copies of the blueprints for an AR-15 style semiautomatic assault rifle were downloaded from Defense Distributed and Cody Wilson claimed that plans for the Liberator had already been downloaded “a million times.” See Doug Criss & Kimberly Berryman, More Than 1,000 People Have Already Downloaded Plans to 3-D Print an AR-15, CNN (July 31, 2018), https://www.cnn.com/2018/07/30/us/pennsylvania-3d-guns-trnd/index.html (reporting that over 1,000 plans used to print an AR-15 style rifle have been downloaded in a matter of days); see also Kelly McLaughlin, 3-D Printed Guns Allow the Public Access to Real, Working Weapons That are Virtually Untraceable—Here's How They Work, BUS. INSIDER (July 31, 2018), https://www.businessinsider.com/3d-printed-guns-how-they-work-2018-7 (explaining some of the advancements in 3D-printed firearms while comparing them to the hurdles of production); Gilman Louie, I 3D-Printed An AR-15 Assault Rifle—And It Shoots Great!, BUS. INSIDER (Dec. 4, 2013), https://www.businessinsider.com/i-3d-printed-an-ar-15-assault-rifle--and-it-shoots-great-2013-12 (“On a recent weekend, I printed the key part (called the lower receiver, shown in blue in the photo) of an AR- 15 semi-automatic rifle on a consumer 3D printer made by Makerbot. The next weekend I took the assembled firearm and succeeded in firing more than 50 rounds into a target from 50 feet away.”). 13. Criss & Berryman, supra note 12; see also Kyle Mizokami, Those Controversial 3D-Printed Guns, Explained, POPULAR MECH. (July 31, 2018), https://www.popularmechanics.com/military/weapons/a22604405/3d-printed-guns/ (discussing the constitutional dimensions of the argument for and against the availability of digital blueprints for 3D- printed firearms). 14. See Associated Press, 20 States Sue Over Rules Governing 3D-Printed Guns, CBS NEWS (Jan. 24, 2020), https://www.cbsnews.com/news/20-states-sue-over-rules-governing-3d-printed-guns/ (describing a lawsuit 20 states brought against the Federal Government challenging a regulation that allows blueprints for 3D-printable guns to be posted on the internet). 192 Vermont Law Review [Vol. 45:189 under federal criminal law capable of ensuring that 3D-printed firearms meet certain criteria and do not fall into the hands of those who have already been categorically identified as dangerous or prohibited individuals. In 2018, then- Attorney General Jeff Sessions highlighted the importance of criminal enforcement actions as a counter to the possible dangers associated with the legalization and dissemination of 3D-printed firearm technology, stating that the Department of Justice would not
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