I agree that a 2nd A. argument is legally worthless; so do Mike Godwin and other persons whose legal opinions are generally carefully considered. FWIW, I note that one gov't study of the constitutionality of encryption restrictions, done by some law profs for DOEnergy, had a section surveying the possible applicability of the 2nd A. Since we are not using this argument in Bernstein, I didn't read the section with any care. The thrust was, if I recall correctly, that even if the 2nd A did apply, it has so little force that it doesn't matter (i.e., one can't easily point to doctrine calling for "heightened" or "strict" scrutiny under the 2nd; I happen to believe that there should be some form of scrutiny beyond "rational basis" for infringement of 2nd A. rights, having been impressed by Sanford Levinson's analysis, but the cases do not support it). I suspect that one reason why folks find this approach rhetorically interesting is that it's got that "you called it that, so . . . " flavor. In a different post on a different issue, Perry Metzger referred to estoppel, and I think the same intuition operates here. But as Michael Froomkin said, what the State Department calls it shouldn't be relevant to the meaning for constitutional purposes. Also, estoppel against the government is quite limited. There's a line of cases saying that, and courts frequently refuse to hold the government to the same kind of estoppel as private parties. (Agreeing w/Peter Junger) Lee Tien