Cody Wilson

Gun Control Groups Fail to Stop Distribution of Gun-Making Computer Files

The previously prohibited computer files related to making guns at home are now legally available in resolution of long-standing lawsuit involving Cody Wilson and Defense Distributed.


As reported earlier this month, the Justice Department wanted to settle a lawsuit with Defense Distributed and the Second Amendment Foundation over the government's many years of legally barring the former from hosting and distributing certain computer files that can help instruct devices to manufacture weapons at home. Defense Distributed believed, among other things, that their First Amendment rights were implicated by being legally prohibited from spreading the speech within those files. The government's official announcement that it was lifting its prohibition of the distribution of such files (the government originally argued spreading the files constituted illegal munitions export, essentially) was supposed to happen Friday.

Mark McDaniel/Reason

Panicked, a trio of gun-control interests (Brady Campaign to Prevent Gun Violence, Everytown for Gun Safety, and GiffordsPAC) tried to muscle in on the lawsuit at the very last minute and prevent the settlement from going into effect. Friday, after a hearing before Judge Robert Pitman in U.S. District Court for the Western District of Texas, their attempt failed, the settlement went into effect, the lawsuit is over, and the files are being freely distributed.

Cody Wilson, the founder of Defense Distributed and maker of the first usable 3D printed plastic gun, explained in a phone interview Friday evening how his opponents tried their legal maneuver in the middle of the night while everyone's asleep on Wednesday, a clearly "vexatious" attempt to interfere between the two relevant parties that had no legal basis. Given the meaning of his victory for their gun control cause (Wilson thinks the technologies of home gun making via computer instruction will be the death knell of meaningful gun control), "I don't even blame them."

The Brady Campaign and their partners, Wilson thinks, were just hoping to stall resolution of the settlement and "kill us with paperwork and keep us in court" for possibly years longer. "The Judge saw through everything, is the long and short of it" Wilson says. The executive branch, Wilson says, "gets to decide on national security prerogatives" and in a sense Wilson says his side was being forced to defend the arguments of his ostensible legal opponents in the federal government, "which is that the courts can't review" the decision to let the files be distributed.

"The files are being published," Wilson says.

While the years of legal fights between him and the federal government are over, Wilson says the state of New Jersey threatened him this week with a lawsuit over his distribution of gun-making files. New Jersey's Attorney General Gurbir S. Grewal sent Wilson a letter which read in part that "Defense Distributed's plans to allow anyone with a 3D printer to download a code and create a fully operational gun directly threatens the public safety of New Jersey's residents."

Then, making one of Defense Distributed's core legal points in this whole lawsuit for them, Grewal complained that "Posting this material online is no different than driving to New Jersey and handing out hard-copy files on any street corner." Indeed, as Wilson has long argued, the information he wanted to distribute should be protected under the First Amendment, just as if he were printing it, as indeed books or instructional pamphlets about gunsmithing already are.

Josh Blackman, a lawyer on Defense Distributed's side who helped argue this case before Judge Pitman on Friday, says that the attempted intervenors very last minute attempt to throw a spanner in the works required the Defense Distributed team to write over 60 pages of briefs in less than 24 hours. The motions from the three gun control groups were filed very late in the evening on Wednesday, seeking a temporary restraining order on the government to stop them from settling with Defense Distributed.

A hearing was swiftly set up in Austin, Texas, Friday and "after an hour the judge announced from the bench that he'd denied the motion to intervene." Thus, the settlement went into effect "and the case is closed." The gun control groups did not bother trying to appeal the judge's decision and "now there is nothing left to intervene in. They were intervening to prevent the settlement" but the settlement has now gone into effect.

"The important thing to understand is that Brady has no interest here," Blackman says. "If the government wants to issue a license and thinks its consistent with national security, they can do that." The gun control groups "suggested Trump is abdicating his role and capitulating on an important issue of national security, and it's rubbish." In general when it comes to the Second Amendment, Blackman says, "Trump is taking the same position Obama took." The change here has nothing to do with the Second Amendment, and is just a matter of shifting policies and responsibilities over ITAR, as explained further below.

As explained in the memorandums of opposition Blackman and his team were forced to produce at such great speed, under existing precedent Brady and the other groups would have to prove the government's choice to settle "significantly and 'perceptibly impaired' the organization's ability to provide its 'activities.'" which they failed to do. (Their claim, roughly, was that if the gun-making files were more readily legally available, they'd have to spend more money on their gun control activities.) The suing gun control groups "cannot state a…claim as a means to enjoin an action that hasn't even happened yet, and in which…they have not yet diverted any resources. There is no injury in fact."

Further, Blackman and his team (which also included Matt Goldstein and Second Amendment superlawyer Alan Gura) explain in their briefs, the alleged injury Brady and the others imagined from legal ability to distribute those files cannot reasonably be placed on any action of Defense Distributed; their "parade of horribles is premised on a false perception of reality: so long as the government builds a virtual wall around the Plaintiffs [Defense Distributed], criminals and terrorists will be unable to 3D-print firearms. Nonsense." It points out that such files were, despite the government's threats to Wilson and his team, as available as could be.

Further, the specifics of the export control laws under which Wilson was being restrained are such that "there is no judicial review of the decision to grant, or not grant a license. The Groups injury cannot be remedied in this Court…The Groups have failed to explain, or perhaps failed to recognize, that the decision to grant the Plaintiffs a license is immune from judicial review. Their purported injury cannot be redressed by an injunction."

One of the points Brady and the other groups try to make would, if taken seriously, have breathtaking implications, the brief points out:

they state, without equivocation, that the settlement will result in a "direct[] threat." The claim is breathtaking. Federal courts cannot allow individuals to challenge the Executive's diplomatic and foreign policy decisions on grounds that such decisions harm their personal security. One can predict an avalanche of citizen lawsuits targeting every foreign arms sale, the "nuclear deals" with Iran and North Korea, decisions to impose or lift embargos, decisions to meet or not meet with foreign leaders or participate or abstain from international organizations, and so on. These concerns may all be legitimate, but they are not a ticket to federal court.

The briefs also touch on the problems associated with Brady et al's last minute attempt to intervene:

The Plaintiffs have been silenced for nearly six years. Litigation-by-ambush will not force us to consent to an additional moment of silence. Instead, counsel for Plaintiffs stayed up all night preparing these urgent pleadings, and traveled on short notice to attend the hearing…nothing bars them from filing their (meritless) lawsuit against the Government. Indeed, the Plaintiffs are not even named as parties in the groups' proposed complaint…. to the extent the groups claim that only their intervention could stop the files' publication, that proverbial ship has long ago sailed out the previously open barn doors with the published files, which just about everyone on the Internet continues to be free to publish without any governmental interference—everyone, that is, except the Plaintiffs.

The brief concludes addressing theories that this settlement was reached because of some sort of sinister pro-gun agenda on the part of the Trump administration while explaining the legal changes overtaking export control law enforcement that were in play:

While this case was being litigated, the Obama and Trump Administrations have engaged in a sophisticated and detailed plan to transition the regulation of certain technical data from the jurisdiction of the State Department to the jurisdiction of the Commerce Department. And, in May 2018, the State Department announced its plan to amend ITAR to that effect. That shift placed the Department of Justice in an odd position: the Plaintiffs, and the Plaintiffs alone, would still be litigating against a soon-to-be-repealed State Department regime….Reasonably, the Plaintiffs and Defendants reached a settlement agreement. It's that simple. In today's rancorous culture, it is unfortunate that friends of the court have charged the federal government with bad faith, based on wild speculation.

As a separate filing regarding Friday's hearing elaborated, the above jurisdictional move regarding ITAR means "Department of Commerce Export Administration Regulations ("EAR")….will require licenses for exports of firearms, [but] the EAR does not impose a prior restraint on so-called "technical data"—that is, public speech."

That the files Wilson wanted to distribute, and was uniquely prohibited from doing, constitute speech and not munitions export was the core of his long legal fight, a fight that's now over.

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    1. Maybe it crashed again and no one will be around to reboot it any time soon.

      I keep hoping, anyway.

    2. (smirk)

      You conservatards obviously don’t understand that Scalia defined muskets as Unalienable rights.

  1. Awesome post!!
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  2. A win for the good guys, yea!

  3. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Its unconstitutional to infringe on the right of the People to keep and bear Arms. All Arms. Rifles, knives, pistols, ammo, grenades, mines, tanks, ships, planes, rockets….

    1. While I agree with the general sense of your statement, I would argue that there is a tiny wedge built into the Amendment that, while not twisting the english language into a pretzel (as the Militia argument does) could be used to limit WHAT arms are protected.

      The Amendment says “keep and bear”. I think it could be rationally argued that this only covers arms that an individual can carry and operate. So, no multi-person tanks. No belt fed machine guns (Hollywood to the contrary, the M60 cannot be effectively operated by one man, no matter how well oiled his biceps), no large missiles.

      Not that it’s likely to be an issue in reality; maintaining such arms is brutally expensive. But it cuts the rug out from under the hysterics who will claim (you KNOW they will) that we want privately owned nuclear weapons.

      1. The M60 can be easily operated by one man. You put it down first.

        Just like long range rifles, it’s not designed to be fired from a standing position.

        You have to lay down to shoot a Barrett .50 BMG, too.

        And then, of course, there’s the M249 SAW, which is belt fed, and explicitly designed to be used from a standing position.

        So now you’re going to have to try and ban things based on what … what, an average person can easily shoot?

      2. First, that is slippy slope to give government the power to decide what that Amendment limits. So no. That type of twisted legal reasoning is already being used against us.

        Second, ‘Arms’ as used in 1776, 1789, and today did/does not mean single-man portable weapons only. The Continental Army borrowed on lease cannons, ships, and individual weapons from Americans.

        So the first thing, the Framers did after barely winning freedom using these militia weapons was to allow some future government the ability to ban said Arms? No way. For hundreds of years there were zero federal regulations on Arms. The state only had minimal regulation and most of that was racist unconstitutional laws to keep black folks from having Arms.

        Nukes scare people so it seems to fit into some unwritten exception that the USA should have. Nukes take massive infrastructure, funding, and technical expertise to build. I would never help someone build a nuclear weapon but I 100% support an American’s right to keep and bear one.

      3. We make the mistake of just going to the 2nd Amendment when we look towards what the founders intent was regarding weapons. Lets also bring up Article 1 Section 8 which grants Congress the authority to issue letters of Marque and Reprisal. That would imply that the founders intended for private owned ships of the time to posses maritime artillery.

        1. The Founding Fathers actually did do that.

          IN 1812, James Madison signed this letter of Marque for the privately owned schooner “Parrot” to subdued British shipping.
          James Madison Letter of Marque 1812

        2. How about a government of enumerated powers? Gun control isn’t an enumerated power.

      4. The Amendment says “keep and bear”. I think it could be rationally argued that this only covers arms that an individual can carry and operate.

        So a law requiring all legal handguns to weigh no less than a thousand pounds wouldn’t violate the Second Amendment? We’ll get right on that!

        /gun control nutcase

    2. The gun control nuts actually DO state they want us to follow countries that ban basic knives legal in all 50 Us states.

      The issue of tanks/ships/planes/rockets is just a red herring.

  4. The polymer 80 is the death of gun control.

    1. Trump is President during the biggest rollback of unconstitutional and wasteful government policy in over 100 years.

      1. You forgot Jimmy Carter’s abolition of the Civil Aeronautics Board and his deregulation of the trucking industry, but trump’s only a year and a half in, so I guess we’ll wait and see …

        1. Jimmy Carter also presided over the creation of the Departments of Education AND Energy.

    2. The metal lathe and the printing press are the death of gun control, and they have been around for centuries.

  5. Long past time the officers and attorneys of these gun control groups were prosecuted under 18 USC 242.

  6. that proverbial ship has long ago sailed out the previously open barn doors

    Not a mixed metaphor, just an acknowledgement of global warming and rising seas.

    1. It’s like beating a dead horse with a straw man.

      1. made of eco-friendly hemp.

    1. Are there any ‘regulated’ file sharing websites?

    2. Judge me as you may, that article was written by a woman. Very few woman should be allowed to weigh in on gun rights, they simply do not understand the level of violence that bad men are capable of.

  7. You always show with some interesting articles, Thanks!

  8. A gratifying outcome, and the summary smack-down of the three stooges and their last minute shenanigans is icing on the cake.

  9. I love the WaPost’s coverage. 100% talking points of the gun control/ban lobby groups like Everytown.

    The more they cry the better.

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