Is software speech? My first response was skeptical: just another legal theory to win a case, to extend First Amendment protection to something that did not exist when the First Amendment was written. Yet free speech never meant merely words formed in your mouth. It meant free expression. Thus it covers written materials of all kinds, photographs and other images, every kind of art, music – all products of the human mind. Under that definition, of course software qualifies as expression. Of course it qualifies for protection under the First Amendment, for the same reasons other kinds of expression do.
These thoughts come to mind because I read an excellent interview with Cody Wilson, engineer who designed the first 3D printable firearm. His perspective rightly reminds us the founders did not have a national defense establishment in mind when they wrote about a ‘well regulated militia’. They thought of local self-defense organizations.
A national defense establishment did not exist before the Civil War. A ‘well regulated militia’ referred to any kind of military organization with weapons at its disposal. The example of the Minutemen at Concord and Lexington, and all the other militias that participated in ejection of the British from the colonies, was still fresh when the founders wrote the Bill of Rights, only thirteen years after the Declaration of Independence. All the rights listed in the Declaration, and in the Bill of Rights, need protection. How do you protect them, if you do not have means to defend yourself, your property, and your family?
Thus the name of Wilson’s company: Defense Distributed. The well-developed theory of deterrence developed for all kinds of military weaponry applies to citizens’ firearms. We have these weapons so we do not need to use them. It’s true that our own Department of Defense, and the CIA, practice aggressive war, but aggressive war invites aggression in return. It does not deter it. I have never heard advocates of an armed citizenry argue, or even suggest, that initiation of armed resistance against the state would be a good idea, or that it would have a good outcome. Advocates of an armed citizenry want the state to know that people can defend themselves if they have to. No citizen cares to be forced into that position.
A disarmed citizenry creates the insecure, unfree state the Second Amendment wants to avoid:
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.
Without a doubt, drafters of the Second Amendment regarded a disarmed citizenry as a condition favorable to tyranny, and a threat to individual freedom.
Years ago, standard arguments in favor of gun control contended that the nation already has a well regulated militia to secure our state, and our freedoms. We do not need distributed firearms to accomplish that purpose, so the Second Amendment does not apply. It is out of date. We can leave it on the books if we like, but we need not observe the plain meaning of the words. The Constitution has to evolve with the times.
You do not hear that argument anymore. First of all, it is a weak argument. You cannot ignore a key provision of the Constitution because you think it is out of date. You have to change the Constitution. Secondly, many people recognize serious threats to our freedoms emanate from the state itself. These threats concern actual conditions in our country. They do not originate overseas, where we focused our concern for most of the twentieth century. Since the beginning of the twenty-first century, we recognize that our own state threatens us. It is the proximate source of power, the threat we have to protect ourselves against.
The U. S. model was entirely different. It flipped the historical pattern, and redefined democracy’s legal foundation.
Remember this simple principle, one we can easily forget after September 11. Through most of history, governments granted rights to the people. Those grants are embedded in the story of democracy: the king’s powers diminished as representatives of the people forced concessionary proclamations. They extracted rights that would protect them from bad laws state power could enforce, including the right to be free from taxes they had no say about. In that way, freedom expanded.
The U. S. model was entirely different. It flipped the historical pattern, and redefined democracy’s legal foundation. It founded a free state not on a grant of rights from the king or any other body. It founded a free state on enumerated powers that citizens granted to government. Government could not do anything not permitted in the Constitution. The Second Amendment expressly reserves the power to defend yourself with weapons to the people. It denies that power to the state: that is to say, it denies the state a monopoly on the use of force.
That is about as radical a theory of the state as you can find. It makes our Constitution a Lockean document, not a Hobbesian document. That should not be surprising, as Thomas Jefferson wrote the Declaration as a Lockean testament from the start. You could even call Jefferson’s work the first draft of the Bill of Rights, listing as it did all the complaints the colonists had against British tyranny. Significantly, it plainly stated and endorsed Locke’s right of revolution.
The Second Amendment plainly states a necessary condition for this right of resistance and revolution: you cannot undertake a revolution without arms. No state that denies access to means of self-defense can possibly be free. Thus the requirement that a well-regulated militia is ‘necessary to the security of a free State’. Notably, British regulars initiated use of force at Lexington and Concord, when they marched out of Boston to confiscate the local militia’s weapons. The revolution germinated in a conflict over taxes, then matured in a struggle over self-defense.
The Second Amendment plainly states a necessary condition for this right of resistance and revolution: you cannot undertake a revolution without arms. No state that denies access to means of self-defense can possibly be free.
The last point to make is that Cody Wilson and Defense Distributed do not sell firearms. If they did that, the state would not challenge their ability to do business. Defense Distributed makes code freely available on the internet. It is an open source project. In that sense, it is not even a business. Yet the State Department has taken Defense Distributed to court, to block its ability to distribute code. It wants to deny individuals capabilities to design or manufacture their own weapons.
It’s obvious why a state that wants to maintain a monopoly on the use of force would want to do that. Ability to make your own weapons assures the integrity of the Second Amendment, and undermines the state’s desire to regulate weapons of all kinds, firearms in particular. No tyrant, or would-be tyrant, tolerates software that aids do-it-yourself gun manufacturers. No state concerned with its own security cares to deal with an armed citizenry.
Meanwhile, Defense Distributed continues to improve its designs and materials. It sells unfinished parts that hobbyists and many others can use to extend and improve the firm’s innovations. The State Department and its attorneys cannot put this cat back in the bag, as Wilson, hobbyists, and the state all recognize. The state’s desire to control people never keeps up with technology, or with people’s ingenuity as they try to remain free.
If I want to build my own bicycle, or kayak, the state will not interfere. Individuals who want to build their own firearms operate in a dicier environment. They have the technology, parts, and skills to build weapons, but the state is not happy with their hobby. Nevertheless, the state and internet platforms cannot legally shut down Defense Distributed. Even if you do not own a gun, or do not want to acquire one, applaud Cody Wilson’s resolve and vision. He needs backing from every one of us. He understands what freedom requires. When we back Defense Distributed and its aims, we protect our own liberty, as the Second Amendment intends.
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An astonishing thought that denies legal validity to the Bill of Rights:
The Constitution is the sacred text of the civic religion that is U.S. nationalism, and that nationalism is inexorably tied to white supremacy.
The Jeffersonian 