This will be my last post on this thread. On Thu, 3 Oct 1996, Steve Schear wrote: [...]

However, I found much disturbing. The inference that the Exec branch could on the one hand classify crypto as a munition ('arms' by any other name), while for constitutional purposes the Courts may not exposes a deep-seated legal duplicity.

Why is it "disturbing" that for administrative convenience a regulation uses a shorthand term (in effect saying "treat crypto as if it was a munition"), but that the courts say whatever convenient shorthand you use for regulatory bookkeeping, it has no constitutional effect? What would be the advantage of having the government simply re-impose the ITAR word for word identically for all materials that are not arms in the constitutional sense? The ultimate result would be the same (since this is arguably allowed by the statute, and the non-arms have *even less* constitutional protection (unless they are speech).

Constitutional interpretations over the past century not withstanding, it is clear (to me) that a substantial number of the Framers would abhor what has become of the Second Amendment's ... right to keep and bear arms.

This is a different issue; it is irrelevant to the matter at hand since crypto is not arms under ANY reading of the second amendment. As for your argument that the 2nd Am should be read expansively, rather than narrowly, personally I doubt strongly that the Framers would have been unanimous on this. Recall that the Articles of Confederation were abandoned in part due to Shay's rebellion -- and the (majority) Federalists (of whom the Jefferson you quote WAS NOT a part) managed to push through a strong centralizing government. Recall that the constitution in its first draft didn't even have a bill of rights! I am absolutely certain that the Framers recognized that things change over time, and that they would have intended indeed did intend for us to interpret the constitution with some degree -- but not too much -- flexibility. As someone who believes in the importance of fidelity to legal texts, I think we have a duty to make every word in the Constitution count. I therefore place weight on the fact that the 2nd amendment is *unique* in giving the policy reason for the limitation on government power ("a well-regulated militia" being essential &tc.). This is ample grounds to read the text as applying only in the context of an organized militia -- not casual gun ownership -- **whether or not** this complies with our best (and inevitably fallible) reconstruction of what certain historical individuals may have thought the text meant, especially if the historical evidence is mixed. [PS. Why do you privilege the authors of the bill of rights over the people who voted for it?] I might add that I personally find all discussions of plots to kill people, or to watch gleefully while others seek to do so, so morally repulsive that I now killfile everyone who takes part in them. (This has the interesting side-benefit of cutting the list down to very manageable size.) This may explain why I do not respond to certain kinds of messages. I should also add for the benefit of certain third parties to this debate that I stopped responding to gun control flames three years ago after the email flood attack by rabid pro-gun people that temporarily crashed my account. I do not mean by this to attempt to stifle any discussion, only to explain why I'll concentrate on baby-tending and other work rather than go on in this vein. **Benjamin Bradley Froomkin, b. Sept. 13, 1996, 8 lbs 14.5oz 21.5"** **Age two weeks: 9 lbs 12 oz, 23"** A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) Associate Professor of Law | U. Miami School of Law | froomkin@law.miami.edu P.O. Box 248087 | http://www.law.miami.edu/~froomkin Coral Gables, FL 33124 USA | It's hot here. And humid.

At 11:03 AM +0000 10/5/96, attila wrote:

essentially, assault weapons are illegal; in california (where else), the possesion of a weapon with a flash suppressor is illegal; as is possesion of the older 10 shot clips for the .223 class weapons (not to mention the 20 and 30 shot clips or the double sided bananas at 40!).

No, this is not correct. There are no restrictions whatsoever on possession of 10-round, 20-round, or even 100-round magazines. They are still being sold in gun stores, sportings goods stores (when available), flea markets, gun shows, etc. What you may be thinking of is the recent restriction on manufacture of *new* magazines with greater than 10-round capacity, except for sale to law enforcement and related persons (retired cops, some retired military, etc.) Sales of _existing_ magazines, made before the ban on new mags went into effect, are unaffected. And the magazine makers went into double overtime to make more mags in the several months of "warning" they had, especially as magazine prices went way up. The military has bought literally hundreds of millions of .223 (5.56 mm) mags over the past several decades, and these are widely available, cheaply. Obvious to us all, even the anti-gun contingent, should be the point that a perp intent on killing a lot of people will be unaffected by the magazine ban. First, because such mags are widely available and cannot be taken off the streets, even if martial laws were to be declared. Second, because magazine changes are very fast...a schoolyard mass-killer will be unaffected by having to insert 10 5-round magazines. (And a shotgun would be more effective in a schoolyard anyway, obviously enough.) (This relates to absurd proposals, from folks like Moynihan, to "tax ammunition" at stratospheric levels, e.g., $5 a round. This will obviously not affect the perp who walks into a liquor store with a loaded pistol, costing all of $30 to load (assuming he used store-bought ammo). What it _would_ do is make gun-handling less safe, as target practice would become prohibitively expensive. And what would it do to those of us with 3000 or more rounds of ammo already bought? Or reloaders? Or the black market? Or even the flea market?) As for "assault weapons," it is not true that "essentially, assault weapons are illegal." Anyone with a so-called "pre-ban" weapon was supposed to fill out a form and file it with the State of California (and pay a fee of some sort, I suppose). But such guns are most definitely not illegal. (Evidence is that 80% of so-called assault rifles have so far failed to fill out the mandated forms. No prosecutions have been reported in the several years this requirement has been in effect.) Nor is a "flash suppressor" ipso facto illegal. (BTW, the prime role of a flash suppressor is to let the shooter keep his night vision by not partially blinding him as the flash goes off...a secondary role, never shown to be significant, is to reduce the flash visible to opponents far away.) A "flash suppressor" is one of the several "points" which can make a gun into an Evil, Babykilling, Not Useful for Hunting Assault Killer Weapon. Other "points" being a pistol grip, a bayonet mount, and perhaps other factors. My Colt .223 H-BAR AR-15 is perfectly legal in California. As are the dozens of 20-round mags I have for it, and the 30- and 40-round mags I bought for it in a local store. --Tim May "The government announcement is disastrous," said Jim Bidzos,.."We warned IBM that the National Security Agency would try to twist their technology." [NYT, 1996-10-02] We got computers, we're tapping phone lines, I know that that ain't allowed. ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1,257,787-1 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."