Re: 4th ammendment and Cryptography
From: Phil Karn <karn@qualcomm.com> Two recommendations: "In Our Defense - The Bill of Rights in Action", Ellen Alderman and Caroline Kennedy [yes, *that* Caroline Kennedy], Morrow, ISBN 0-688-07801-X.
With all due respect, I find it difficult to reconcile Ms. Kennedys assertion that "the people" refers collectively to state organized militia in the second amendment, without carrying this inference elsewhere. Her book is extremely fast reading, and well, light.
With all due respect, I find it difficult to reconcile Ms. Kennedys assertion that "the people" refers collectively to state organized militia in the second amendment, without carrying this inference elsewhere.
I re-read the chapter on the 2nd amendment. I can't find *anything* that qualifies as a statement of personal opinion. The closest is a statement that "...the courts have not supported this interpretation", referring to the claim by "the gun lobby and certain scholars" that "citizens have a constitutional right to pack a gun". This is a statement of fact about what the courts have said, not a statement of the authors' personal opinions. The discussion of the Morton Grove case that they chose to illustrate the issue contains many quotes from both sides, including the gas station owner who was robbed because he had stopped wearing a gun to appear to be in compliance with the law.
Her book is extremely fast reading, and well, light.
Sorry you didn't like it. I stand behind my recommendation; I think it's an excellent collection of essays for the layman. Each essay picks a clause of the Bill of Rights and shows how it was interpreted by the courts in a real case. Included (and far more relevant to the right to develop and use cryptography than the 2nd amendment) is "US. vs The Progressive". In this 1979 case in Wisconsin, the government obtained, for the first time ever, prior restraint against the publication of privately generated and assembled information that the government considered "sensitive" - in this case, a layman's educated guess, working from open sources and his own understanding of physics, as to how thermonuclear weapons work. The case was eventually dropped, however, when another "nuclear hobbyist" published his own work. Since there has been at least one call to regulate cryptography under the same "born classified" terms as nuclear weapons (by Adm. Inman in the early 1980s), there are a lot of useful insights in this case. The section on the 4th amendment is also highly relevant (see the subject line here). The authors chose "McSurely vs McClellan", a case that I had never heard of. It showed just how egregious the police can be in abusing their authority when they are politically motivated. Although cryptography was not at issue here, it shouldn't be hard to use this case as an example of its potential importance in defending against unreasonable searches and seizures. Phil
Phil Karn says:
With all due respect, I find it difficult to reconcile Ms. Kennedys assertion that "the people" refers collectively to state organized militia in the second amendment, without carrying this inference elsewhere.
I re-read the chapter on the 2nd amendment. I can't find *anything* that qualifies as a statement of personal opinion. The closest is a statement that "...the courts have not supported this interpretation", referring to the claim by "the gun lobby and certain scholars" that "citizens have a constitutional right to pack a gun". This is a statement of fact about what the courts have said, not a statement of the authors' personal opinions.
It is a statement of fact, but it is also an incorrect statement of fact. One would go so far as to say deliberate lie or rewriting of history, but I have no evidence for that. The courts HAVE supported the interpretation of the "gun lobby", and repeatedly. The problem is that no case has come before the court since U.S. vs. Miller in 1939. Indeed, it appears that the court is deliberately avoiding the issue, much as they deliberately refused flag burning cases for over 25 years. In the Miller case, the court specifically held that the second amendment applied to individual ownership of military weapons, and found against Miller only on the narrow grounds that no evidence had been provided to the court demonstrating whether a shotgun was a military weapon. (Miller's attorneys did not appear before the court, and thus their side did not present evidence.) Perry
Well, according to the authors, "The courts have overwhelmingly supported the collective-rights interpretation" of the Second Amendment. "The federal courts in the Morton Grove case were no exception. The district court held that Morton Grove's ordinance did not violate the Illinois Constitution or the Second Amendment. It based its holding on the fact that the Second Amendment has never been incorporated into the Fourteenth and made applicable against the states. The Second Amendment, therefore, acts only as a restriction on the federal government, keeping it from passing legislation that would infringe on a state's right to arm and train its militia [...] On December 6, 1982, the US Court of Appeals for the Seventh Circuit affirmed [...] Under the controlling authority of the only Supreme Court case to address the scope of the Second Amendment, US v Miller, the court concluded that 'the right to keep and bear handguns is not guaranteed by the Second Amendment'. The US Supreme Court declined to hear the case, letting the lower-court rulings stand." You may well disagree with this state of affairs, but can you say that any of this factual information about court rulings is reported incorrectly? That the Supreme Court declined to hear the case can only mean that they agreed with the Appeals Court decision and almost certainly would have voted to uphold it. Otherwise enough justices would have voted to hear it on appeal. That's not *quite* the same thing as saying that "no case has come before the court since 1939". Cases including Morton Grove *have* come before the Supreme Court. They simply haven't agreed to hear any, presumably because they've always agreed with the lower court opinions. Once again, I would like to say that tying cryptography to the Second Amendment is exceptionally bad strategy for the Cypherpunks. Not only is it highly unlikely to do any good, given how the courts have ruled on gun control cases in this century, but it is almost certain to backfire. Many people who strongly support the right to use cryptography to protect personal privacy are not strong supporters of "gun rights". Indeed, many of us find cryptography so appealing precisely because of its purely defensive nature. It protects my privacy by simply making it *impossible* for people to read my mail, rather than by threatening them with death or serious bodily harm after the fact. Prevention is far more effective and moral than threats and revenge, and for both reasons you will find it much easier to get the public to accept and support it. Worst of all are the complete loonies (some apparently on this list) who assert that guns are an essential protection against a tyrannical US Federal Government. Those who believe this have apparently never heard of the US Civil War, because the South tried exactly this over 130 years ago. (They failed, BTW.) It succeeded only in destroying most of an entire generation of Americans, along with much of the country. And that was before some rather significant advances in US military weaponry, vis a vis privately owned weapons. I am a strong believer in the right to protect one's personal privacy through strong cryptography and other purely peaceful means. I'm not trying to violently overthrow the government, and I'd rather not be associated with gun fetishists who give the strong impression that they are -- it can only hurt the cause I believe in. Phil
This is a rant. It doesn't belong in cypherpunks. Anyone who wants to discuss this further is invited to send me mail. Phil Karn says:
Well, according to the authors, "The courts have overwhelmingly supported the collective-rights interpretation" of the Second Amendment.
"... 'the people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained, and established by 'the people of the the U.S.' The Second Amendment protects the right of the people to keep and bear Arms ...." - Supreme Court of the U.S., U.S. v. Uerdugo-Uriquidez (1990). I keep up with this stuff. There is every indication that the court damn well knows that there is one and only one way to interpret the paragraph in question and just refuses for political reasons to take a case.
the federal government, keeping it from passing legislation that would infringe on a state's right to arm and train its militia [...] On December 6, 1982, the US Court of Appeals for the Seventh Circuit affirmed [...] Under the controlling authority of the only Supreme Court case to address the scope of the Second Amendment, US v Miller, the court concluded that 'the right to keep and bear handguns is not guaranteed by the Second Amendment'. The US Supreme Court declined to hear the case, letting the lower-court rulings stand."
Miller was about a sawed off shotgun, not handguns. Miller explicitly stated that ownership of military weapons was protected and that the narrow grounds for finding against Miller was that no evidence was presented that shotguns were a military weapon. Since .45ACP have been military sidearms for the better part of a century, the logic in question is, well, questionable.
You may well disagree with this state of affairs, but can you say that any of this factual information about court rulings is reported incorrectly?
Yes. Thats precisely what I'm saying, Phil. I've been to Handgun Control Incorporated meetings, Phil, and they virtually tell their members to lie. I say this from personal knowledge. They operate a mindless propaganda machine in which virtually no one questions that any tactic no matter how underhanded is perfectly acceptable to the holy cause of total bans on possession of firearms. You don't have to believe me, either. Hear it from their own words: "We're going to have to take one step at a time, and the first step is necessarily -- given the political realities -- going to be very modest ... So then we'll have to start working again to strengthen the law, and then again to strengthen the next law, and maybe again and again. Right now, though, we'd be satisfied not with half a loaf but with a slice. Our ultimate goal -- total control of handguns in the United States -- is going to take time .... The first problem is to slow down the increasing number of guns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of *all* handguns and *all* handgun ammunition -- except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors -- totally illegal." - Pete Shields, Chairman Emeritus, Handgun Control, Inc. ( "The New Yorker", July 26, 1976 ) The amount of propaganda being spread about guns is astonishing. At this point, the public barely knows the difference between automatic weapons (machine guns and the like), semi-automatics (which merely means a gun that fires a bullet every time you pull the trigger) and the mythical class of "assault weapons." For everyone's information, an "assault weapon" in military terminology can refer only to a fully automatic weapon, and virtually none are sold in the U.S. To my knowledge, no legally owned fully automatic weapon has been used in a crime in the U.S. in decades. HCI constantly pretends that the NRA and others are arguing for the right to "hunt" and claims that there is no "sporting purpose" to "assault weapons". In fact, the NRA, which is not allowed by any of the networks or major magazines or newspapers to place any ads (not a joke!) defends the ownership of guns as part of the right to self defense and in any case there is no such thing as a "hunting rifle" versus a "military weapon" in any feature of design or manufacture. There are also constant lies about "newer more potent guns" when no significant change in gun design this century. The standard military sidearm of the U.S. Army untill a few years ago, the M1911, was designed in, you guessed it, 1911! (The evil "black talon" ammo they were mouthing off about recently was nothing more than ordinary hollow point ammo with a creative name. Dum-Dum ammo has been around since the middle of the last century!) The fact of the matter is that the guns available to the public have been getting less and less powerful over the years, while the crime rate has been rising. The fact also is that jurisdictions that permit concealed carry almost immediately get a reduction in crime rate -- the murder rate in Florida dropped 30% after a nondiscretionary carry permit law was put into place -- where jurisdictions that ban guns experience increases in the rates. If you want, I'll recommend five or six books on this subject.
That the Supreme Court declined to hear the case can only mean that they agreed with the Appeals Court decision and almost certainly would have voted to uphold it. Otherwise enough justices would have voted to hear it on appeal.
Thats untrue. From the early 1960s until a few years ago the court constantly refused to hear cases on flag burning EVEN THOUGH it was obvious what the opinion of the court would be given dozens of symbolic speech cases. Sure enough, as soon as they heard such a case, they threw out the law. Why didn't they hear the cases before then? The usual speculation is that the court didn't want the political flack that they were sure would come from the decision.
Once again, I would like to say that tying cryptography to the Second Amendment is exceptionally bad strategy for the Cypherpunks.
This is not an unreasonable opinion given the insane climate we have now in this country. However, this is NOT to say that the second amendment does not say what it means and mean what it says.
Worst of all are the complete loonies (some apparently on this list) who assert that guns are an essential protection against a tyrannical US Federal Government. Those who believe this have apparently never heard of the US Civil War, because the South tried exactly this over 130 years ago. (They failed, BTW.)
They failed after conducting a war that lasted for years. I would argue that they fairly well demonstrated that it is possible to conduct a fairly solid resistance even without sophisticated weapons.
It succeeded only in destroying most of an entire generation of Americans, along with much of the country. And that was before some rather significant advances in US military weaponry, vis a vis privately owned weapons.
The Vietnamese managed to beat the American Army even though they had no such weapons. Perry
Phil Karn writes:
Well, according to the authors, "The courts have overwhelmingly supported the collective-rights interpretation" of the Second Amendment.
This is an overstatement. C. Kennedy is not being accurate here, since she implies that this is settled constitutional law. In fact, it hasn't been addressed directly.
[...] Under the controlling authority of the only Supreme Court case to address the scope of the Second Amendment, US v Miller, the court concluded that 'the right to keep and bear handguns is not guaranteed by the Second Amendment'. The US Supreme Court declined to hear the case, letting the lower-court rulings stand."
One of the first things law students are taught is that the U.S. Supreme Court's refusal to hear a case has no precedential authority whatsoever. --Mike
David Koontz says:
From: Phil Karn <karn@qualcomm.com> Two recommendations: "In Our Defense - The Bill of Rights in Action", Ellen Alderman and Caroline Kennedy [yes, *that* Caroline Kennedy], Morrow, ISBN 0-688-07801-X.
With all due respect, I find it difficult to reconcile Ms. Kennedys assertion that "the people" refers collectively to state organized militia in the second amendment, without carrying this inference elsewhere.
I'll note two quick quotes on this matter and then let it drop. "... 'the people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained, and established by 'the people of the the U.S.' The Second Amendment protects the right of the people to keep and bear Arms ...." - Supreme Court of the U.S., U.S. v. Uerdugo-Uriquidez (1990). "The conclusion is thus inescapable that the history, concept, and wording of the Second Amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratifi- cation, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner." - Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session ( February 1982 )
participants (4)
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koontzd＠lrcs.loral.com -
Mike Godwin -
Perry E. Metzger -
Phil Karn