Freedom of speech and gun rights are one and the same

Cody Wilson, Defense Distributed and creator of the Liberator, is giving the code to build a 3D printable gun away.

Cody Wilson, founder of Defense Distributed, examines his 3D-printed handgun.

WASHINGTON, May 8, 2015 – “I’m all in favor of keeping dangerous weapons out of the hands of fools,” quipped famed architect Frank Lloyd Wright. “Let’s start with typewriters.”

You can’t preserve freedom of speech without the freedom to back it up with force – the right to bear arms.

And in a twist made possible only through technology, two natural rights, free speech and the right to bear arms, have morphed into one.

Enter the Liberator: The world’s first 3D-printable handgun.

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Cody Wilson, founder of Defense Distributed and creator of the Liberator, says his non-profit organization exists “to collaboratively produce, publish, and distribute to the public without charge information and knowledge related to the digital manufacture of arms.”

In other words, Wilson isn’t selling the Liberator. He’s giving away lines of code that users download and send to their 3D printers. Once printed, the parts are assembled into a .380 caliber shooter.

Here’s the question: are the words written in computer code protected by the First Amendment?

The U.S. State Department doesn’t think so, accusing Defense Distributed of violating the regulations of the Arms Export Control Act. In a May 2013 letter to Wilson, the State Department’s Bureau of Political-Military Affairs Office of Defense Trade Controls Compliance told the self-described “crypto-anarchist” to remove his code “from public access immediately.

“Defense Distributed should also review the remainder of the data made public on its website to determine whether any additional data may be similarly controlled.”

Wilson complied.

But the State Department demand sounds an awful lot like prior restraint, the banning of speech or other expressions of mind prior to release. Wilson’s attorney, Alan Guara, told Wired magazine that the State Department’s claim of jurisdiction over written words (code in this case) posted to the World Wide Web represents a “vast, unchecked seizure of power… not authorized by our constitution.”

In his lawsuit against the U.S. State Department, Wilson’s attorneys quote the 1963 Supreme Court’s Bantam Books, Inc., v. Sullivan ruling: ‘“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ The prior restraint system challenged here cannot overcome its presumption of invalidity.”

In 2000, the 6th Circuit Court of Appeals ruled in Junger v. Daley that code is speech. The court said, “Source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an expressive means of the exchange of information and ideas… we hold that it is protected by the First Amendment.”

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And a decade later, Assistant Secretary of State Michael H. Posner told an audience at USC’s Annenberg Center, “The Obama administration has staked out a principled stand by arguing that the rights of free expression… apply to online activity just as they do to offline activity. Although it may be more difficult to enforce certain rights in the Digital Age… the principles are the same.”

And just a week ago, President Obama observed World Press Freedom Day, saying it was important for Americans to “speak out on behalf of the values that are enshrined in our Constitution and our Bill of Rights, because we believe those values are not simply American values, that certain core values like being able to express yourself and your conscience without danger is a human right, a universal right, and ultimately makes the world better and stronger.”

Benjamin Franklin said, “Those wretched countries, where a man cannot call his tongue his own, he can scarce call anything else his own.”

And what applies to the tongue certainly applies to the gun.

In his 2008 majority opinion in District of Columbia v. Heller, Supreme Court Justice Antonin Scalia wrote, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of the nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

If the courts cannot, under Heller, extinguish Cody Wilson’s natural right to bear arms, how can they declare his free speech rights, as Scalia reasoned, extinct?

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  • Patrick Wirt

    He still has his first amendment rights. A question I would have is: Does he do a background check on each person to whom he gives away code? Since he is essentially providing them a gun, it seems to me that he has some responsibility as to who he provides code to.

    • Adam Nickle

      Requiring background checks does nothing to keep guns out of the hands of real criminals. Instead, it prevents honest and good people from even attempting to purchase a gun. These people are on the front lines when it comes to defending against killers and murderers, and we’re robbing them of any legitimate defense.

      If people are afraid that they will die if they try to hurt others, they will not try to hurt others. Guns in everyone’s hands is an excellent way to do that.

      • Patrick Wirt

        You’re right, background checks are a minimal deterrent to criminals acquiring guns. However, it does force them to commit a crime in order to acquire a gun (steal, pay a straw buyer, buy on the street, etc.) All of those options create added risk/expense for the criminal and, in the case of street guns and straw buyers, added risk to the seller. Because a law doesn’t work as well as we want it, doesn’t mean we should just give up. As to backgrounds checks preventing good and honest people from purchasing weapons – Why? If they can pass a background check, there should be no problem and if they can’t, maybe they aren’t good and honest people. According to the ATF and the NRA, over 300 million guns have been legally sold in the US sine 1998 and over 68 million applications for purchase submitted in 2012 alone. Sounds like a lot of people aren’t really having much trouble with the system. Your contention that gun owners help defend against criminals has some validity, but I feel a lot better knowing that my neighbor with a gun is “a good and honest person” based on someone actually checking.

        • Stephen Z. Nemo

          You most certainly missed the point. Whether you, or anyone else for that matter, believe control of guns is “reasonable” or “common sense,” technology is rendering such inclinations less and less enforceable – thanks to technology. You don’t have to like it. It simply is.

    • Ryan Williams

      This is completely untrue. Teaching someone is not the same as providing to someone.

      • Patrick Wirt

        We can haggle over the definitions of “teach” and “provide” if you want but it seems to me that, in either case, his actions mean that anyone, anywhere, with access to a a computer and a 3D printer, can have a gun with a few keyboard clicks. Criminals, children, mentally ill, terrorists, etc.. That is NOT responsible behavior. I believe in free speech, but I have a real issue with people who exercise their free speech rights simply because they can and without considering the consequences. As to teaching versus providing, if I post reading lessons on line, I am teaching. If I post a book, I am not teaching, I am providing.

        • salmonhair

          “That is NOT responsible behavior .”
          We can haggle over whether it is responsible. We can have that discussion.

          The question really is, “is it illegal to provide knowledge?” If so, then what other knowledge can government control? Would showing the world my pizza sauce recipe be a crime?

          • Patrick Wirt

            Ready any time you are to have the “responsible behavior” discussion. You’re right, the legality issue is more murky. My posts are directed not at can you do it, but should you do it and what is the potential damage.

          • salmonhair

            The government has only the rights we give it. If I copied the Robitussin recipe and sold it, you might have a point only because we empowered the government to seek recourse should Robitussin want to pursue it. However, if Robitussin decided on their own to release it what right does the government have to say different? I don’t know who Pollard is so I can’t comment about him. Bradley manning did a great service in exposing what the government has been getting away with. As for the pizza sauce, lets assume it was lethal. I am not giving anyone sauce by simply telling them how to make it, nor am I even encouraging anyone to make it.

            I probably will never build a liberator in my lifetime. You don’t need his files to make something dangerous. But I will make the instructions available as a matter of principle and protest. It is and has been legal to make your own gun. If I decide to make my own gun, then I and only I am responsible for my actions and I will answer to the law should that happen.

            If Cody loses his case, then I will make the instructions available and I will answer to that as well.

          • Patrick Wirt

            Indeed, the government has only the rights we give it. Our discussion was about what types of knowledge the government has or can have control over. I agree that Bradley Manning did a good thing. He did, however, violate a law that we, through our representatives, established and he is in prison for sharing “knowledge”. As to your pizza sauce, you’ve established a pretty narrow lane of responsibility for yourself. You really believe that if you tell someone how to make something lethal, that you have no responsibility if they do it? You really believe that posting your recipe is not encouraging them to make it? If so, what would be your purpose for posting it? What if you didn’t tell them the sauce would kill them? Even the guy who invented the Liberator and posted it on line said ” I recognize that this tool might be used to harm people. It’s a gun”. He still posted the files but at least he recognized and admitted that his actions might cause harm to others. None of us live in isolation. Our actions or lack of action impacts on others. It doesn’t mean that we have to stifle ourselves, but it does mean that we have a responsibility to consider our actions and the impact on others. Like it or not, in a societal setting, we do have at least some obligation to be our brother’s keeper.

    • Stephen Z. Nemo

      Some of you seem to have missed the point of my article. An
      increasing number of people believe our natural rights to be limited (a.k.a.,
      background checks for weapons purchases). All that flies out the window with
      downloadable, 3D-printable weapons. With the government’s ability to micromanage
      our lives thus diminished, the “peoples’ right to bear arms” is indeed “unalienable.”
      Freedom, with all its inherent risks, is preferable to the totalitarian

      • Patrick Wirt

        I haven’t missed the point, I simply disagree with take on the result. The concept of an “absolute” right to gun ownership was not shared by the Founders, hasn’t been agreed to by the Supreme Court, and is irresponsible.

    • salmonhair

      No, providing a gun is providing a gun. He’s only providing knowledge. Do you provide a hamburger when you give instructions on how to cook one? He isn’t even providing the meat.

      If anything it is the person to whom he provides the code to that has responsibility for how they choose to use it.

      • Patrick Wirt

        Providing these files is to “providing knowledge” as microwave dinners or “add water and an egg” recipes are to cooking. If you consider that cooking, you are entirely right. He is giving them a complete package which requires almost no knowledge on their part and “teaches” them nothing other than to pop the disk in the computer, put the plastic in the printer and go for it. Yes, the person he gives the code to has responsibility. If he were limiting the people to whom he gives the code, my feelings would be different. As is it, he doesn’t even know who is acquiring his code. Of the 100,000 people who downloaded the code, you know who at least one of them is (yourself). Who are the others? Are they people that can legally have guns or not?

        • salmonhair

          No, he is not providing a microwave dinner by describing how one is cooked or the ingredients in it. He is not even providing the cardboard on which the instructions are written. Where is the actual materials? He doesn’t provide even the computer, disk, or plastic. He has no obligation to insure that the people who download it are responsible. It’s up to the people who download it to use the knowledge responsibly. We are only responsible for our own actions.

          • Patrick Wirt

            You’re being a little literal I think. At any rate, we are indeed responsible for our actions and the impact they have on others. There are more than a few people in prison or who’ve lost all they own in civil court for facilitating violent actions by others. Inciting someone to burn down a building or kill someone is a crime. Those are extreme examples again, but they support the notion that we don’t live in a void. Our actions impact others. Although the Liberator issue doesn’t rise to the level of my examples, it still ignores the potential results. If I hand a drunk his car keys, I’m not telling him to drive his car, I’m not telling him to have a wreck or harm himself or others, but I’m also not considering the potential consequences of my decision. See my other response for the comments made by the inventor of the Liberator.

          • salmonhair

            ” Inciting someone to burn down a building or kill someone is a crime. ”

            Well, personally I think it shouldn’t be a crime. There is a saying your parents may have told you. If your friend told you to jump off a building, would you do it?

            That is probably a bad comparison in this case. Not only did Cody not incite anyone to any action, but as you pointed out. he went as as far as to caution those who were downloading it.

            “If I hand a drunk his car keys, I’m not telling him to drive his car”

            It would be a nice gesture if you didn’t, but if you did then you are still not responsible for his actions. He’s the drunk driver. If anything would make you responsible, this example would. You are actually making available to him the physical means to drive drunk.

          • Patrick Wirt

            You just can’t get past thinking that you exist in a void. Well, suit yourself and good luck with that worldview.

          • salmonhair

            I don’t live in a void. I just don’t believe that simply providing instructions is illegal. You look at all of the books like army manuals, the poor man’s James Bond and the anarchist cookbook that provided instructions on how to make things that can be destructive. Courts have consistently ruled them to be legal. Why should this be any different?

            I also think that even encouraging someone to do something should not make you responsible for someone else’s actions.

            My worldview is one of liberty. There is a clear distinction between following your own sense of moral obligation and having legal responsibility for the outcome of someone else’s actions.

          • Patrick Wirt

            If you reread my posts, I think you’ll see that I haven’t said that what Cody Wilson did or what you may do is illegal. You’ve challenged me in some of your posts to come up with restrictions on liberty that are illegal. I’ve done so. Inciting a riot or destruction is illegal. You don’t like it, work to change the law. Giving a drunk his car keys is not illegal, what happens after that is not your fault, but it is also not a responsible act. I think you’ve hit the point I’ve tried to make all along when you use the term moral obligation. We do have a moral obligation to our fellow beings. Sometimes we can pick and choose as to what we think our obligations are. I believe that when we have a clear choice that will determine whether others are potentially harmed or killed, lives destroyed, we all have an obligation to consider those consequences against what is to be gained. Doing something simply because we can or to prove that we can is a poor counterweight to unwarranted loss of life or serious harm. “Responsibility” in my vocabulary doesn’t necessarily mean blame, fault, or legal culpability. Sometimes, it just means thinking about others instead of indulging ourselves.

          • salmonhair

            First, thank you for not being insulting. We do have a choice to act if our actions might harm others. My personal belief is that knowledge in itself is not harmful, and providing it is not harmful. I don’t advocate doing something, just because you can. I do advocate doing things in order to continue and advance the precedent of freedom. Have you gone to an airport lately? I always refuse to be scanned, because I’m concerned that one day the government might make it mandatory. When I am stopped by the police, I am as uncooperative as I can be without assaulting them. If you don’t stand up for yourself , the government will walk all over you. It’s just like at school when a bully picks on you. The more you give, the more he takes.

          • Patrick Wirt

            I appreciate your calm, respectful discourse as well. I’ve always thought that these sites are of little use if we can’t calmly discuss our opinions even when we disagree. We’re not going to agree on this subject. I am less pessimistic about the government. I believe that since 9/11, we have given too much power to the government (Patriot Act, etc.) I think that if we get rid of some the programs we let ourselves be talked into (TSA, Patriot Act etc.), we’ll all be a lot less anxious about things and be able to get back on the right track. 9/11 was horrible, but we can’t let it define our futures. I feel comfortable that most people who download Cody’s files would not be dangerous. But, it only takes one to create a tragedy. Guess I feel the same way about that as you do about the government. Have a good one. Pleasure “talking” to you.

          • salmonhair

            You. too.

          • salmonhair

            We’re talking on two threads here. It’s basically the same conversation. So in the interest of simplicity, lets agree to talk on the other one.

          • Patrick Wirt

            Good idea.

  • ginjit.dw

    The freedom of tongue, as Franklin so aptly said, and the right to bear arms, are two of many rights delineated in OUR bill of rights. Not Mexico, Not Russia, NOT Iran, bout OURS. These were not included on a whim by our founding fathers; these were fiercely debated and agreed to by people with more brains in their little fingers than john kerry or the president, for example. Any limit on these, or any other of our rights is unjust and unconstitutional. This doesn’t mean that it can’t or won’t happen, but we must be willing tofight and demand our rights.

    • Patrick Wirt

      We do have many rights and we are blessed to have them. The concept that our rights are absolute, however, is erroneous. Almost none of us live in a social setting where our actions can’t harm others. Does that mean we should give up our rights?No, but it does mandate that we try to exercise them responsibly.