Much of the hullabaloo about 3D Printed guns is sufficiently overblown. For the foreseeable future, it is cheaper and easier to make a homemade “zip” gun out of equipment one can buy from Home Depot. Why spend $10,000 on a 3D-Printer and go through all the steps when you can build one yourself. Or buy one for cheap on the black market.

But a new California law, ostensibly aimed at 3D printed gun, would sweep much further. It would criminalize making your own firearm without permission (and a serial number) from the state. From the sponsor’s press release.

Flanked by representatives from law enforcement and the Brady Campaign to Prevent Gun Violence, Senator Kevin de Leόn (D-Los Angeles) today unveiled legislation to ban the sale, manufacture, purchase and trafficking of plastic and self-assembled firearms – often referred to as “ghost guns” — in California.  Senate Bill 808 requires self-made or assembled guns to contain permanent pieces of metal and to be registered with the Department of Justice through a serial number and gun owner background check.

From the bill:

29180. (a) (1) Prior to making or assembling a firearm, a person making or assembling the firearm shall apply to the Department of Justice for a unique serial number or other mark of identification pursuant to Section 29181.

(2) Within one day of making or assembling a firearm in accordance with paragraph (1), the unique serial number or other mark of identification provided by the department shall be engraved or permanently affixed to the firearm in accordance with regulations prescribed by the department pursuant to Section 29181 and in a manner that meets or exceeds the requirements imposed on licensed importers and licensed manufacturers of firearms pursuant to subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued pursuant thereto.

(3) After the serial number provided by the department is engraved or otherwise permanently affixed to the firearm, the person shall notify the department of that fact in a manner and within a time period specified by the department, and with sufficient information to identify the owner of the firearm and the unique serial number or mark of identification provided by the department.

This law would seem to sweep very broadly to anyone who assembles a firearm, whether or not it involves 3D printing. The meaning of “assemble” is not defined. Would this include taking a gun apart, and reassembling a gun? I’ll talk more to some of my friends in California about this.

I am working on an article for the Tennessee Law Review on the 1st Amendment, 2nd Amendment and 3D Printing. One of the topics I’ve been looking into is whether there is a 2nd Amendment right to build your own arms.

An excellent article on this topic is 3D Printers, Obsolete Firearm Supply Controls, and the Right To Build Self-Defense Weapons Under Heller, in the Golden Gate Law Review by Peter Jensen-Haxel. Peter argues that the 2nd Amendment right to bear arms includes the right to build arms. Here are some highlights from this fascinating article:

“Without propounding on the reasonable restrictions that may be appropriate or necessary to temper a right to build arms, responsible individuals who are not prohibited from owning firearms should be allowed to construct self-defense weapons, solely for personal use, that are analogous to models lawfully available in the primary market. The strong interests that support this right includes, among other things, the importance of choosing the device that one’s life might depend on and providing the physically disabled with meaningful access to self-defense. …

Heller can be interpreted to support a general right of individuals to manufacture their own firearms. At the most basic level, the Court *475 implied the right to acquire arms. Under the Court’s historical analysis, home-manufacture is not among the “presumptively lawful” exceptions to Second Amendment protection and indeed appears to be supported in our nation’s tradition. Heller also indicates that individual autonomy, which would be greatly furthered by the right to home-manufacture, is important in determining the scope of the right to bear arms. Finally, the Second Amendment contemplates tyranny and anarchy, situations in which industrial production of arms, and thus normal channels of acquisition, would cease. …

Prohibiting acquisition of firearms disables the Second Amendment right no less than Washington D.C.’s invalidated disassembly requirement. Along these lines, scholars have interpreted Heller to protect not just the acquisition of guns,¹⁸⁹ but also access to ammunition¹⁹⁰ and proper training,¹⁹¹ all three necessary to render guns effective self-defense tools. The Seventh Circuit, reasoning that the right to possess firearms implies the right to acquire them and maintain *476 proficiency in their use, recently enjoined a ban on shooting ranges in Chicago along with other restrictions barring ambulation of weapons to such ranges.¹⁹² It appears that the Court tacitly recognizes that some form of acquisition, even if heavily burdened,¹⁹³ is necessarily implied by the right to bear arms.

Stay tuned. I hope to have my draft online in February.