Cody Wilson and Strategy for Nullification

Nullification starts with individuals figuring out ways to do what the government says they can’t.

Cody Wilson did just that when he came up with an end-run around a federal judge’s injunction that was intended to keep blueprints for 3-D printed guns out of the public’s hands.
After a federal judge blocked a settlement agreement between Wilson and State Department allowing him to post 3-D printed gun files on his website, Wilson announced he would sell the plans for whatever U.S. customers are willing to pay.

The agreement with the State Department was the culmination of a long legal fight between the Wilson and the feds over posting 3-D gun blueprints on the internet. The agreement allowed Wilson’s company, Defense Distributed, to post the files online beginning Aug. 1. But 19 states sued to block the agreement.

In his injunction, U.S. District Judge Robert Lasnik sided with those states, agreeing that homemade firearms manufactured from the blueprints could cause harm to their citizens. The judge noted that 3D-printed firearms can have a “toy-like appearance” and include no identifying information, making them virtually untraceable.

Lasnik based his opinion on the Arms Export Control Act and ordered the files must stay offline to comply with U.S. export laws.

Wilson rejected the court’s opinion.

“State governments have no power to second-guess the decision making of the State Department. They have no power to ask websites to take information off of the internet that’s legally posted there,” Wilson said during an interview on CBS This Morning. “And I’m certainly not going to consent to the judgment of judges who say that they can.”

Wilson basically found a workaround. By selling the plans to U.S. customers and shipping them on a USB drive, he will technically comply with the federal export law prohibiting international distribution of the 3-D gun blueprints, but will defy the judge’s intent – to keep the plans out of the hands of the public.

“Today I want to clarify, anyone who wants these files will get them—I’ll sell them, I’ll ship them,” Wilson said.

Wilson told CBS This Morning the fight is a matter of principle.

“I know it’s absurd, to some degree, to fight for your principles in a culture like this, but I think it’s a worth demonstration.”

Wilson called the judge “hysterical,” noting that the information he’s trying to block is already out there. There’s no way to put that genie back in the bottle.

“The judges yesterday, besides being hysterical and all that, did not suspend [our operation] but wanted to unauthorize it,” he said. “Many attorneys have been saying we’ve been stopped; no one can print a gun at home. This is the stuff I had to read yesterday. But of course you can download this stuff, all this press coverage ensured it’ll be online forever. So the point I’m going to make: this order stopping us from giving away [files], prevented us from selling, emailing, et cetera—I will be doing all those things. My congrats to the attorneys general for saving America. A lot of this to me is principle. For many years I chose not to sell these files, because I’m an open source activist. I believed in demonstrating there’s a right to put this in the public domain.”

Some people will argue that Wilson isn’t really nullifying anything. Heck, he’s not even technically defying the judge. But he is – along with everybody who buys his plans and produces a 3-D printed gun. In the first place, he’s completely thwarted the judges desired outcome – to keep the blueprints out of the public eye. Second, he has positioned himself to stay in the fight.

When Thomas Jefferson wrote, “every state has a natural right” to nullify federal acts, he didn’t say how to do it. In fact, even though a few decades later, some of his most prominent supporters claimed to base their own nullification process on his advice, he never gave us step-by-step nullification instructions. We have to address each situation individually. You’ve got to come up with an appropriate to be successful. Taking things too far might put you in a place where you’ll never be able to get the job done. Sometimes you have to be tough and strong. Other times you have to be smart and savvy.

In practice, Jefferson advised a whatever-it-takes approach to nullification. Part of that approach involved smart strategy. In a letter to James Madison, he advised against just pushing the issue to the extreme. Instead, he suggested they “push as far as events will render prudent.”

That’s exactly what Wilson is doing. He’s holding fast to his principle – “I believed in demonstrating there’s a right to put this in the public domain.” But he’s figuring out creative ways to push things forward without landing himself in jail.

Wilson’s actions are reminiscent of marijuana activists in the early days of legalized medical marijuana in California. The feds ramped up enforcement efforts and constantly raided dispensaries. But individuals persisted and continued to operate despite federal pressure. Ultimately, their unwillingness to buckle under the pressure coupled with state actions nullified federal marijuana prohibition in effect.

It took courage to face down federal marijuana prohibition and it will take equal courage to nullify the feds’ unconstitutional regulation of firearms. Wilson shows that kind of courage, but it will certainly come with a cost. At the least, he will have to spend hundreds of thousands of dollars to defend himself in lawsuits.

Up until now, most gun rights activists have relied on a Washington DC-based strategy. When judges don’t uphold the Second Amendment and members of Congress pass more unconstitutional gun control, they generally just slink away. Wilson blazes another path forward – a refusal to cooperate coupled with creative defiance. He seems to understand that the government is not just going to give him his rights. He knows he has to fight for them. And ultimately he understands he has to willing to do what he wants to do whether the government says he can or not.

Mike Maharrey