Using First Amendment to Defend the Second Amendment

September 21, 2015

Tags: Cody Wilson, First Amendment, second amendment
Posted in: Democracy, Embassy/State, Post-Constitution America

Cody Wilson, who created computer code that will allow someone to 3-D print a handgun, is trying now to use the First Amendment’s right to free speech to assure his Second Amendment right to bear arms.

And he has to sue to the U.S. Department of State to do it.

A Plastic Gun

3-D printing allows the use of plastics and some metals to create three dimensional objects, using an off-the-shelf “printing device” and computer code. You can create the code yourself if you are smart like Cody, or you can buy and download the code from a smart guy like Cody if you are not as smart. The printer takes that code and builds up the object, layer-by-layer (watch it work.) The tech is amazing, and is even being used now on the International Space Station to fabricate spare parts on demand.

Two years ago Cody posted online what is believed to be the world’s first computer code to create a 3-D printable gun. Wilson’s files for what he called the Liberator, a single-shot pistol, were partly a statement about freedom in the digital age and partly an assertion of his Second Amendment rights.

Enter the State Department

A few days after the plans for the Liberator were put online, the State Department ordered Wilson to remove them, threatening him with jail and fines for breaking rules on the export of military data.

State informed him that by posting his files online he may have violated a complicated set of federal regs, the International Traffic in Arms Regulations (ITAR), which seek to prevent the export of sensitive military technology. The regulations are pretty heavy stuff, aimed at stopping the export of classified military hardware, weapons of mass destruction, that sort of thing.

It is unclear that the intent of the regulations was something to do with 3-D printing of a single shot handgun. It appears that, in panic, the Federal government looked through its books for a way to stop people like Cody, and could not come up with anything else without violating the Second Amendment. Hence, the call to the State Department to step in as pseudo-law enforcement.

Note also that no terrorists have been stopped. Wilson removed the code from the web as ordered, but not before it was downloaded 100,000 times. It thus exists forever in cyberspace. And while Wilson is no doubt a clever lad, he is not the first/last/only person to know how to program a 3-D printer.

Wilson Fights Back

Wilson’s first move against State was to spend two years and thousands of dollars on lawyers to him file paperwork to comply with the ITAR regulations. State, for its part, took no action on Wilson’s case (Wilson’s attorneys claim State is obligated to issue a ruling in 60 days and just did not.) The State Department also did not respond to Wilson’s queries that it has no authority to regulate his actions inside the United States, where he believes the Second Amendment applied.

And so Wilson moved to the next step, filing suit via his company in May against the State Department, claiming that its efforts to stop him from publishing his plans amount to a prior restraint on free speech.

Basically, Wilson is trying to use the First Amendment to protect the Second. Pretty sure that is a first.

Wilson’s initial response from the judiciary was not warm. In August, a district judge denied a preliminary injunction against the State Department’s order, stating that any potential violations of Wilson’s Constitutional rights did not outweigh the public interest. Wilson filed an appeal to that decision and the case will be next heard by the 5th Circuit Court of Appeals.

Supremes?

Regardless of one’s thoughts on weapons, the issues here are Constitutionally significant, testing the depth of the First Amendment in the face of ever-expanding technologies, as well as the balance between individual rights and public good. The latter test has always been how the courts have judged limits on free speech (“shouting fire in a crowded theatre.”)

This one has Supreme Court written all over it.

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