Defense Distributed Victory for First and Second Amendments!

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Elections have consequences. One of the levers of power in the executive branch is the ability to settle lawsuits. Trump era officials in the Department of Justice have agreed to settle a lawsuit meant to stop an egregious violation of First and Second Amendment rights. Cody Wilson and Defense Distributed published computer code that enabled people with 3D printers to print a crude single shot pistol and parts of semi-automatic rifles.

The Federal government ordered Defense Distributed to stop distribution of the computer code. Cody Wilson and Defense Distributed complied, and filed a lawsuit, with the help of the Second Amendment Foundation. They contended the order violated their First and Second Amendment rights. The lawsuit has been settled to the satisfaction of Cody Wilson, Defense Distributed, and the Second Amendment Foundation. From prnewswire.com:

BELLEVUE, Wash., July 10, 2018 /PRNewswire-USNewswire/ -- The Department of Justice and Second Amendment Foundation have reached a settlement in SAF's lawsuit on behalf of Cody Wilson and Defense Distributed over free speech issues related to 3-D files and other information that may be used to manufacture lawful firearms.

SAF and Defense Distributed had filed suit against the State Department under the Obama administration, challenging a May 2013 attempt to control public speech as an export under the International Traffic in Arms Regulations (ITAR), a Cold War-era law intended to control exports of military articles.

Under terms of the settlement, the government has agreed to waive its prior restraint against the plaintiffs, allowing them to freely publish the 3-D files and other information at issue. The government has also agreed to pay a significant portion of the plaintiffs' attorney's fees, and to return $10,000 in State Department registration dues paid by Defense Distributed as a result of the prior restraint.

Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.

"Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby," noted SAF founder and Executive Vice President Alan M. Gottlieb. "For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called 'weapons of war,' and with this settlement, the government has acknowledged they are nothing of the sort.

"Under this settlement," he continued, "the government will draft and pursue regulatory amendments that eliminate ITAR control over the technical information at the center of this case. They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech. That will allow Defense Distributed and SAF to publish information about 3-D technology."

The news release by the Second Amendment Foundation does not say that importation of such firearms would be transferred from the State Department to the Department of Commerce. That would be a logical move. The ability to import firearms for individuals and small companies is a logistical nightmare, because of the interaction of State Department and BATFE rules.

The federal bureaucracy cannot be depended on to be logical. But under a Trump administration, it the unlikely becomes possible.

Cody Wilson gave an interview to Wired.com. In it he says this settlement is the effective end of gun control. From wired.com: 

"If code is speech, the constitutional contradictions are evident," Wilson explained to WIRED when he first launched the lawsuit in 2015. "So what if this code is a gun?”

The Department of Justice's surprising settlement, confirmed in court documents earlier this month, essentially surrenders to that argument. It promises to change the export control rules surrounding any firearm below .50 caliber—with a few exceptions like fully automatic weapons and rare gun designs that use caseless ammunition—and move their regulation to the Commerce Department, which won't try to police technical data about the guns posted on the public internet. In the meantime, it gives Wilson a unique license to publish data about those weapons anywhere he chooses.

"I consider it a truly grand thing," Wilson says. "It will be an irrevocable part of political life that guns are downloadable, and we helped to do that."

Information is power. Guns have always been produced in homes and small workshops. Homemade submachine guns are produced in small shops all over the world, from the Philippines to Brazil, from Israel to Canada and Australia.

This settlement simply acknowledges that fact. The major difference is this lawsuit does so in a way the dominant media understands. They understand computers and printers. They should understand hammers and files as well.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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