After a hearing on October 24, a federal judge in the Central District of California issued an order denying a motion for preliminary injunction of two California statutes that regulate self-manufactured firearms, or ghost guns. The judge’s order adopted the legal analysis in an 11-page tentative ruling issued on October 21.
The case, Defense Distributed v. Bonta, was filed in late August by Defense Distributed, a company that “sells products and software that allow consumers to self-manufacture some of the most popular firearms in the United States.” Defense Distributed’s products include the Ghost Gunner, “a general-purpose Computerized Numerical Code milling machine . . . that gives purchasers the ability to complete unfinished frames and receivers for various types of firearms, including the AR-15 . . . and AK-47.”
In June 2022, California passed AB 1621, which bans the self-manufacture of unserialized firearms and the sale and purchase of precursor parts not imprinted with a federal serial number. AB 1621 also criminalizes the use or sale of CNC milling machines, such as the Ghost Gunner, by anyone who is not a federally licensed dealer. The following month, California passed another law, SB 1327, authorizing private civil lawsuits to enforce several existing state gun restrictions including the state’s ban on buying and selling unserialized component parts. SB 1327 is modeled after a Texas anti-abortion statute and seeks to evade pre-enforcement legal challenges in federal court, including by instituting rules that make it more likely that the party challenging the law will be forced to pay the state’s attorneys’ fees.
Defense Distributed challenged both of these statutes under the Second Amendment, arguing in part that “no restrictions were placed on the ability to manufacture arms for personal use in America during the seventeenth, eighteenth, or nineteenth centuries” and, therefore, California’s restrictions are inconsistent with historical tradition of gun regulation under Bruen. Defense Distributed also brought First Amendment and equal protection challenges to SB 1327.
District Judge George Wu denied the motion for a preliminary injunction. The judge emphasized that Bruen still contemplates an initial determination of whether the conduct at issue is encompassed by the “plain text” of the Second Amendment. Indeed, he went further and noted that—in his view—Bruen “cannot possibly be understood as meaning that the ‘text’ of the Second Amendment is informed by a ‘historical understanding,’ at least not without rendering the Supreme Court’s repeated reference to ‘plain text’ entirely meaningless.” The judge observed that “try as you might, you will not find a discussion of [self-manufacture of firearms or the sale of the tools and parts necessary to complete the self-manufacturing process] (or any such ‘right(s)’) in the ‘plain text’ of the Second Amendment.” The judge found that Defense Distributed’s efforts to broaden the text to encompass a right to manufacture and purchase certain guns “perceives a penumbra” where there is none. The judge also rejected Defense Distributed’s argument that historical analysis is contained within the first step of the test.
Because the text does not protect this conduct, the judge held, the Second Amendment challenge “fail[ed] at the threshold stage of the inquiry” and the plaintiff was not likely to succeed on the merits. In his order adopting the tentative ruling, the judge confirmed that Bruen’s historical-analogical approach “only applies in situations where the plain text of the Second Amendment covers an individual’s conduct that a government has attempted to regulate.”
The judge noted a recent decision from the District of Delaware, Rigby v. Jennings, which struck down portions of Delaware’s ghost-gun law. Rigby held that the state’s ban on possessing unserialized guns and certain firearm component parts implicated conduct protected by the Second Amendment and that the regulations were not consistent with historical tradition. Judge Wu found Rigby, which relied primarily on a pre-Bruen circuit case, unpersuasive, and agreed with the state’s contention that there is “no authority [showing] that the right to own a machine used to manufacture one’s own arms is encompassed by the plain text of the Second Amendment, which says nothing about ‘self-manufacture or assembly’ of one’s own firearms.” The judge also rejected the motion as to SB 1327, finding that the state’s declaration that it would not see attorneys’ fees in the case mooted plaintiff’s standing to challenge that statute.
When comparing this outcome to the decision in Rigby last month, one distinction is that Delaware’s statute criminalizes possession of certain unserialized component parts by individuals who are not federally-licensed dealers, with no exceptions. California’s law, while very similar, provides a grace period in which someone possessing a prohibited part is allowed to register for a serial number. That said, the reasoning in Defense Distributed would almost certainly have produced a different result in Rigby—as Judge Wu recognizes. Rigby found that possession of unserialized “frames and receivers” was “presumptively protected,” while the California decision found that such items were outside of the amendment’s textual scope.
Defense Distributed’s focus on a threshold plain-text inquiry is entirely consistent with Bruen: “When 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.” And while Bruen confuses matters by attempting to shoehorn itself into “one part,” Judge Wu’s finding that history must play a separate role from plain text also seems correct. If a plaintiff needs to invoke some kind of historical tradition to show that conduct is within the plain meaning of the Second Amendment, that necessarily takes us out of the realm of “plain text.” It’s also worth appreciating, however, that courts pre-Bruen did hold that conduct such as firing guns at a training range was protected because that conduct “lies close to the core of the individual right of armed defense.” Those decisions also seem correct, at least to some extent, because it would be thoroughly odd to recognize a right to possess and carry guns for self-defense if a state could then regulate in a way that completely removed the ability of gunowners to take their guns to the range for practice (a similar argument likely applies to ammunition restrictions, even though ammunition is not explicitly mentioned in the amendment).
Bruen does not provide much clarity in this area, leaving open questions such as when a “law imposing conditions and qualifications on the commercial sale of arms” might rise to the level that it does implicate protected conduct. Judge Wu’s opinion in Defense Distributed similarly doesn’t tackle this question head on—applying a simpler plain text analysis—but the issue seems likely to arise in future ghost-gun litigation. An opinion issued in August by a federal judge in North Dakota rejected a challenge to the ATF’s ghost-gun rule (which recently took effect), finding that requiring serialization and channeling sales through federally-licensed dealers are commercial restrictions that are presumptively lawful even after Bruen. And the Fourth Circuit, in a 2021 opinion, distinguished between “a hoop someone must jump through to sell a gun” (which a commercial qualification that does not implicate the Second Amendment) and “a total ban on buying a gun from a licensed dealer” applicable to certain groups (which would implicate the amendment’s plain text). The requirement that frames, receivers, and other component parts receive a serial number before they are sold seems much closer to a “hoop” than a ban—the parts can still be bought and sold, so long as they bear a serial number.
Finally, one high-level issue at play in ghost-gun cases is the fact that there is a historical tradition of manufacturing firearms outside of any system of government tracking or mandated serialization. For example, as Joseph Greenlee describes in a recent law review article, Americans have long built their own firearms—including to supplement industrial arms production during the Revolutionary War—and “restrictions on self-made arms have been rare throughout American history.” Laws prohibiting groups like felons and the mentally ill from possessing guns were also rare or unknown during most of American history. But common sense dictates that, if the U.S. is to continue to have a legal framework where certain groups (including violent felons, those convicted of domestic violence misdemeanor offenses, and the mentally ill) are prohibited from possessing guns, it must also restrict the self-manufacture of guns in ways that it has not historically. The Internet has fundamentally changed the landscape in this area, making it vastly easier for individuals to obtain parts and assemble working guns—surely the type of “dramatic technological change[ that] may require a more nuanced approach,” per Bruen. It is difficult, if not impossible, to prevent prohibited persons from possessing guns if those individuals can acquire component parts legally and build guns themselves. Any coherent theory of how the Second Amendment protects self-manufactured firearms should recognize this reality.