On September 26, President Joe Biden signed an executive order “combatting emerging firearm threats.” According to a press release in advance of the order, Biden will establish an “Emerging Firearms Threats Task Force, consisting of leadership from key federal departments and agencies.”
According to the release, the “task force” is assigned to manufacture a report examining “the threat posed by machinegun conversion devices and unserialized, 3D-printed firearms.” The White House press item also made clear that this taxpayer-funded report is to be used to push lawmakers to increase the power and resources of the federal bureaucracy, noting, “The report will include any additional authorities or funding the federal agencies need from Congress in order to complete this work.”
Before trying to misinterpret federal law to further encumber law-abiding gun owners or demanding new powers from Congress, Biden and this “task force” might try enforcing current law.
“Machinegun conversion devices”
When it comes to unregistered machinegun conversion devices, the federal government already has extremely powerful tools to address those who misuse these items. Federal law already covers possession, manufacture, and use of the so-called auto or Glock switches (auto sears) the White House appears to be concerned with and imposes severe penalties on those who violate the law.
Federal law, 26 USC § 5845(b), defines a “machinegun” as follows:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Note the language in bold. Firearms that shoot automatically meet the definition of a machinegun. However, even a mere part “designed and intended solely and exclusively… for use in converting a weapon into a machinegun” is itself a machinegun absent any other part of the firearm. Therefore, possession of a machinegun conversion device, even without an accompanying receiver, barrel, etc., is the possession of a machinegun.
18 USC 922(o) makes clear, “it shall be unlawful for any person to transfer or possess a machinegun” unless it is done through the National Firearm Registration and Transfer Record. Registration of new machineguns for civilian use was frozen in 1986. Therefore, none of the machinegun conversion devices at issue comply with this mandate. They are all illegal.
Those found in mere possession of a machinegun conversion device face up to 10 years imprisonment. (18 USC § 924(a)(2), 26 USC § 5871)
Violent criminals who possess or use a machinegun conversion device during the commission of certain crimes face truly staggering penalties.
18 USC § 924(c) provides:
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-
(B) If the firearm possessed by a person convicted of a violation of this subsection—
(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
(C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall—
(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.
To put these severe sentences in context, a 2016 report from NYU’s Brennan Center for Justice found that the average prison stay for murder was only 11.7 years.
Given the potential sentences, if the federal government were to vigorously prosecute those found misusing machinegun conversion devices, anyone with half a brain would treat these items as the equivalent of nuclear waste. Criminals without half a brain would have ample time to improve their cognitive abilities in the federal penitentiary.
However, there’s reason to believe that the Biden-Harris administration isn’t doing all they could on the prosecution front. NRA-ILA has often pointed out the government’s lackluster prosecution figures. In fact, there is evidence that some U.S. Attorneys may not even know, or refuse to enforce, the laws on the books concerning machinegun conversion devices.
In a late 2023 Washington Post article on machinegun conversion devices, the paper referenced U.S. Attorney for the District of Columbia Matthew Graves at length. A shocking excerpt quoted Graves as stating, “They’re basically being treated the same in our criminal justice system as the firearms that don’t have these devices there.” The U.S. Attorney for D.C. is tasked with enforcing both federal and local law in the District.
Biden and his “task force” should consider educating U.S. Attorneys about the laws on the book and ensuring that they use them before contemplating any policy that would further encumber law-abiding gun owners.
“Unserialized, 3D-printed firearms”
Biden’s executive order press release stated, “Unserialized, 3D-printed firearms can be used for illegal purposes such as gun trafficking, unlawful possession by people convicted of felonies or subject to domestic violence restraining orders, or unlawfully engaging in the business of manufacturing or selling firearms.” This is meaningless nonsense, as it is true of all firearms.
Since before the Founding, Americans have enjoyed the right to make their own firearms without government interference.
At present 18 U.S.C. § 922(a) provides:
(a) It shall be unlawful--
(1) for any person--
(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce;
The term “engaged in the business,” as applied to a manufacturer is defined at 18 U.S.C. § 921(a)(21):
a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured;
Therefore, those who manufacture firearms for sale or distribution with the principal objective of doing so for their livelihood or profit must be licensed with the federal government as a manufacturer. Further, such licensed manufacturers are subject to federal requirements that include marking a firearm with a serial number.
Those who make firearms for their personal use are not subject to the requirements placed on commercial actors. Barring state law to the contrary, those who make firearms for personal use are not required to serialize their creations.
Firearms created for personal use still meet the definition of “firearm” under federal law. Therefore, the 18 U.S.C. § 922(g) prohibition on the possession of firearms by convicted felons, convicted domestic abusers, and those with severe mental illness apply to these items in the same manner they would to the possession of a commercially manufactured firearm.
Americans’ right to make their own firearms absent government intrusion is protected by the Second Amendment. The U.S. Supreme Court decision in District of Columbia v. Heller, which recognized that the Second Amendment protects an individual right to keep and bear arms, demands that gun control measures be examined for their constitutionality based on the amendment’s text, history, and tradition.
This test was reiterated in New York State Rifle & Pistol Association v. Bruen (2022). Justice Clarence Thomas’s opinion made clear that for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. Specifically, the opinion noted,
[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
As there is no history or tradition of the federal government in restricting the rights of Americans to make their own firearms for personal use, attempts to restrict this right do not pass constitutional muster.
The method of manufacture, whether it be a home workshop with a drill press or a home office with a 3D printer, does not change the underlying federal law.
The White House claims to be concerned about individuals using 3D printing technology to manufacture firearms using materials undetectable to some security measures. However, these firearms are already prohibited under the (recently reauthorized) Undetectable Firearms Act.
This act prohibits, with limited exceptions, any person from manufacturing, importing, shipping, selling, delivering, possessing, transferring, or receiving any firearm:
(A) that, after removal of grips, stocks, and magazines, is not as detectable as the Security Exemplar, by walk-through metal detectors calibrated and operated to detect the Security Exemplar; or
B) any major component of which, when subjected to inspection by the types of x-ray machines commonly used at airports, does not generate an image that accurately depicts the shape of the component. Barium sulfate or other compounds may be used in the fabrication of the component.
The security exemplar, as explained at 18 U.S.C. § 922(p)(2)(C), is an object constructed of 3.7 ounces of material type 17-4 PH stainless steel in a shape resembling a handgun and is suitable for testing and calibrating metal detectors.
The actual manufacture, possession, and transfer of a firearm that could thwart commonly used metal detection or x-ray imaging technologies, is already illegal under the current UFA. Violations of these restrictions, unfortunately, are also already within the realm of possibility with the use of commonplace materials. Yet, further restrictions would change very little for those inclined to make and use a non-detectable 3D printed firearm to commit a crime. It would not remove, nor could it, that know-how or technology from the marketplace without severely implicating the First Amendment. Rather, it would burden those who have absolutely no interest in making or using firearms for other than lawful purposes.
As NRA-ILA Executive Director Randy Kozuch noted when this new order was announced, “This Executive Order is just one more attempt by the Biden-Harris Administration to deflect attention from their soft-on-crime policies that have emboldened criminals in our country. The orders are notably heavy on election-year rhetoric and light on substance. It's no secret that Americans don't feel safe under the Biden-Harris Administration, as evidenced by the record number of firearms being purchased for the defense of self and family."
The order’s focus on firearms that are already unlawful should make it obvious to any unbiased observer that the blame for the “proliferation” of the firearms the order claims to target falls squarely on the individuals who have failed to use the tools available to the executive branch for the last three years.
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