Federal Judge Rules Against Cody Wilson's Settlement with State Dept.

'The right is currently abridged, but it has not been abrogated'

A 3D printed gun, called the "Liberator" / Getty Images
August 27, 2018

A federal judge issued a preliminary injunction against the State Department's settlement with 3D-printed gun pioneer Cody Wilson despite admitting that such an injunction amounts to an abridgment of Wilson's First Amendment rights.

Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, a Clinton appointee, ruled the potential harm to the states suing the federal government was greater than the harm to Wilson's free speech rights. Lasnik said in his ruling he "presumes that the private defendants have a First Amendment right to disseminate the CAD files." However, he viewed the restrictions on the right to be acceptable.

"That right is currently abridged, but it has not been abrogated," Lasnik wrote in his ruling.

Lasnik's wording appears to run counter to the First Amendment's explicit protection against "abridging the freedom of speech."

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances," the First Amendment reads.

Lasnik said being forbidden from publishing gun designs on the internet didn't mean Wilson's free speech rights had been abrogated because Wilson was free to share the designs by other means—such as by mail or other forms of publishing.

"Regulation under the AECA means that the files cannot be uploaded to the internet, but they can be emailed, mailed, securely transmitted, or otherwise published within the United States," Lasnik wrote. "The Court finds that the irreparable burdens on the private defendants' First Amendment rights are dwarfed by the irreparable harms the States are likely to suffer if the existing restrictions are withdrawn and that, overall, the public interest strongly supports maintaining the status quo through the pendency of this litigation."

It's unclear why Lasnik said the files cannot be uploaded to the internet but can be emailed even though emailing the files would require them to be uploaded to the internet in some capacity. It's also unclear why Lasnik claimed the gun designs could be published by other means when the State Department had claimed in its 2013 letter to Wilson that technical data related to any firearm or firearm part on the United States Munitions List, which includes nearly all semiautomatic firearms, is regulated by the Arms Export Control Act and the International Traffic in Arms Regulations. The letter claimed that the files could not be shared publicly without preapproval by the State Department if there was a possibility it could be transferred to a foreign national—even if that foreign national were in the United States.

The State Department effectively abandoned their claim and decided to settle with Wilson on the advice of the Justice Department in July. A group of attorneys general sued the State Department in federal court in the days before the settlement was set to go into effect and obtained a temporary restraining order from Judge Lasnik. The Justice Department then filed a brief defending the State Department and asking Lasnik not to "second-guess the national security determinations of the Executive Branch."

Lasnik rejected the Justice Department's arguments in today's ruling.

Cody Wilson said the ruling is "clownish" and demonstrates how far those who want to prevent him from publishing his gun designs are willing to go.

"This is why we do this: to show how clownish these state authorities, these courts are willing to be," Wilson told the Washington Free Beacon. "Anything to avoid your lawful right to keep and bear arms. Anything."

Wilson said he is looking forward to taking the case to the next level of the federal judiciary.

"I'm elated," Wilson told the Free Beacon. "I think it's a hilarious order. It shows manifest injustice, and I'm happy to take it to the Ninth Circuit."

The Second Amendment Foundation, which teamed with Wilson in the case, criticized the ruling.

"Judge Lasnik’s ruling involves some of the most amazing legal acrobatics I’ve ever seen," Alan Gottlieb, founder of the group, told the Free Beacon. "He has accepted the plaintiffs’ claim that the CAD files are only available on the so-called ‘Dark Web,’ but that’s not at all accurate. The files are available on the normal internet, and now, thanks to the court, they are available by links in the court record. It is particularly disturbing that Judge Lasnik admitted that the court has decided to not fully explore all the issues because of its limited record, while presuming that we have a First Amendment right to disseminate the CAD files. Then he caps it off by saying that our First Amendment right is only abridged, but not abrogated. That’s like saying the government is only stepping on your neck, they haven’t completely crushed your windpipe."

Gottlieb said he believes the ruling demonstrated an anti-gun bias.

"If this case had to do with anything besides guns, we all know that the court would stop this nonsense in a heartbeat and we wouldn’t even be talking about it," he told the Free Beacon. But because this involves publishing information about guns, suddenly the First Amendment is being treated differently, because the Second Amendment is somehow involved."

Gun-control activists, on the other hand, cheered Lasnik's ruling and said it protected public safety and national security.

"We applaud Judge Lasnik's well-reasoned opinion that appropriately recognized the severe threats to public safety and national security posed by downloadable guns," Adam Skaggs, chief counsel at Giffords Law Center, said in a statement. "In an ill-considered attempt to flout life-saving local, state, and federal gun laws, Cody Wilson and Defense Distributed took the reckless step of making do-it-yourself gun blueprints available on the internet to anyone, regardless of whether they could pass a background check. Worse yet, the Trump Administration abandoned the government's longstanding efforts to stop this threat and gave the green light to guns that cannot be detected by traditional security devices and cannot be traced by law enforcement—making them a gun trafficker's dream come true. Today's victory will stop this threat in its tracks, help save lives, and help to make sure that downloadable guns in the hands of dangerous people don't make our nation's gun violence epidemic even worse."

In the five years since Wilson originally published the gun designs, they have proliferated across the internet and remain readily available on file-sharing sites. In the wake of Lasnik's original ruling, a coalition of gun-rights groups launched as a centralized online repository of the files in question. The site remains live as of this publishing and its operators told the Free Beacon earlier this month they believe their site is legal and they have not been contacted by any law enforcement agencies in regards to it.

The Justice Department has not yet announced what it plans to do in response to the ruling.

"We decline to comment," Mark T. Pettit, confidential assistant at the Justice Department's Office of Public Affairs, told the Free Beacon when asked for the department’s reaction.