Circuit OKs US government control of gun regulation

A 9th U.S. Circuit Court of Appeals panel on Tuesday reversed a federal judge's preliminary injunction blocking the government from removing 3D-printed guns and their associated files from the U.S. Munitions List that critics say would allow the weapons to escape oversight.

Under the International Security Assistance and Arms Export Control Act of 1976, Congress designates to the executive branch the authority to designate "defense articles" and regulate their import and export.

3D-printed guns had that designation until President Donald Trump's administration adopted a rule last year removing them from the munitions list and allowing them to be regulated by the Department of Commerce instead.

More than 20 states, led by Washington and including California, challenged the rule change under the Administrative Procedure Act, arguing it would impermissibly deregulate 3D-printed guns.

"The stakes are high: As the federal agencies acknowledge, allowing proliferation of such files would seriously and permanently compromise national security and public safety," attorneys for the state of Washington wrote.

Assistant Attorney General Brendan Selby argued computer-aided design files for the 3D-printed guns can easily evade Commerce Department restrictions, telling the panel it opens Pandora's box.

U.S. District Judge Richard A. Jones of Seattle, an appointee of President George W. Bush, ruled for the states and granted a preliminary injunction. But 9th Circuit Judge Ryan D. Nelson, a Trump appointee, disagreed with the states, writing that removing an item from the munitions list doesn't designate the guns as "nondefense articles."

His main argument is that the law does not allow courts to review designations by either the State Department or the Commerce Department at all. In an opinion that cited the "Federalist Papers," Nelson wrote: "Congress not only barred APA challenges to Commerce's Reform Act functions; it rendered them, in effect, judicially unreviewable."

Congress also precluded review of the State Department's decision, he added.

Nelson's opinion was joined by Senior 9th Circuit Judge Jay S. Bybee, an appointee of President George W. Bush. State of Washington et al. v. U.S. Department of State et al., 2021 DJDAR 3881 (9th Cir., filed May 6, 2020).

Oral arguments in the case took place Jan. 11, a few days before Trump left office.

President Joe Biden's administration did not file any court papers to change the U.S. Department of Justice's opinion after he took office.

A U.S. Department of State spokeswoman, Nicole A. Thompson, referred a reporter's question to the Justice Department and did not respond to a follow-up query about whether it would seek to change the rule.

The Department of Commerce could not be reached for comment Tuesday.

Attorneys with the Washington state attorney general's office also could not be reached about whether it planned to seek en banc review of the panel decision.

Senior U.S. District Judge Robert H. Whaley of the Eastern District of Washington, an appointee of President Bill Clinton sitting by designation, dissented.

"Considered in isolation, [the State Department's] final rule removes certain 3D gun files from the munitions list and does not provide for any replacement regulatory controls," Whaley wrote. "So absent Commerce's final rule, the subject 3D gun files would become completely unregulated, a clear change in [State Department] policy that would be arbitrary and capricious."