[Cryptography] Cryptography, backdoors and the Second Amendment

Wed Oct 15 17:31:17 PDT 2014

This e-mail turned out huge enough that I think I'll not have to speak
about the subject again any time soon. I'd still like to listen :)

2014-10-13 5:42 GMT+02:00 Jerry Leichter <leichter at lrw.com>:

> On Oct 12, 2014, at 12:31 PM, Lodewijk andré de la porte <l at odewijk.nl>
> wrote:
>
> Ah, but that wasn't the question. A judge must always give precedence to
> constitutional laws. How could a judge explain the second amendment such
> that machine guns could be illegal?
>
> I suspect that ruling should be exceedingly controversial and dangerous.
>
> This is absurdly far from cryptography, but ... the following is a summary
> of the article on the subject in Wikipedia -
> http://en.wikipedia.org/wiki/United_States_v._Miller.
>

But surprisingly relevant.

Law is supposedly coherent and, nowadays, all encompassing. An argument
valid in the US will hold in all the Western countries, and probably those
are or pretend to be developed nations as well.

I've thought and read about the subject some more. It's relevant, bizarre,
historic and, like many judgements are, of incredible importance.

> Private ownership of machine guns has been regulated in the US since 1934,
> when the National Firearms Act was passed in response to the Valentine's
> Day Massacre, an infamous gang killing.  The NFA required registration of
> fully automatic weapons and some others, like short-barrelled rifles.
> Registration, and every subsequent transfer, required payment of a $200 fee
> - a very large sum in those days.
>
> The controlling decision is US v. Miller, decided by the Supreme Court in
> 1939. It's a bizarre case.  Miller was a bank robber arrested while
> transporting a short-barrelled shotgun across state lines.  Miller
> testified against his partners, and later disappeared, presenting no
> defense to an appeal to the Supreme Court.  (In fact, Miller was found
> murdered before the decision was rendered.)  The US government appeal was
> based, among other things, on the interpretation of the reference to "a
> well-ordered militia" to say that the protected rights are to arms actually
> used by militias.  Miller was transporting a short-barrelled shotgun - a
> weapon the government claimed was never used by any known militia.  (This
> claim was actually false, but because no one appeared for the defense, no
> one disputed it.)
>

So, there's no proper judgement on it as of yet. Shocking, given how core
weaponry is to much of the US' image.

My personal opinion is that the 200usd claim cannot constitutionally be
charged, as it could, for some, infringe the ability to bear arms, thus
preventing them from obtaining/executing their right. I do think they could
charge it provided they do not charge it to someone that can trivially
afford it, although avoiding the difficulty in finding that price point has
strong preference.

I say this mostly because of a European Court judgement against The
Netherlands regarding a visa for family members costing a prohibitive per
family member, afterwards a maximum price was determined with no regard to
applicants' ability to apply for it. A still unsatisfactory situation, but
it wouldn't be practical otherwise.

The Supreme Court, however, found other reasons to find that the NFA was
> likely constitutional, and remanded the case to the district court for
> further proceedings.  But with Miller dead, those further proceedings never
> occurred.  The Supreme Court never actually considered the whole issue of
> whether a short-barrelled shotgun was, in fact, ever used by a militia; nor
> whether that matter anyway; never came up.
>

It shouldn't be a big difference. The only thing to do is become part of a
militia, which is a really good idea anyway ("nesssary to the security of a
free State"). The question of which weapons could be of use is easy, ALL OF
THEM!

Textwise the second amendment is not explitic about which arms must be
allowed to be carried, so there's a bit of a hole there. It wouldn't be a
meaningfull text if it didn't refer to all arms equally.

> The case, which forms the basis for limiting access to some kinds of
> weapons, has barely been cited since.  In effect, even though there never
> really was such a decision, the Court has seen Miller as standing for the
> rule that weapons not used by militias may be regulated or banned.  In a
> 1997 case, Justice Thomas - that far-left liberal - wrote in a concurring
> opinion to Printz v. US that "In Miller, we determined that the Second
> Amendment did not guarantee a citizen's right to possess a sawed off
> shotgun because that weapon had not been shown to be "ordinary military
> equipment" that could "contribute to the common defense." In 2008, in a the
> very important decision invalidating most of the District of Columbia's gun
> control regulations (District of Columbia v Heller), the opinion included
> the statement that "Miller stands only for the proposition that the Second
> Amendment right, whatever its nature, extends only to certain types of
> weapons. It is particularly wrongheaded to read Miller for more than what
> it said, because the case did not even purport to be a thorough examination
> of the Second Amendment."
>

I would say there's some syntax/semantics going wrong there. If an entity
(item/service/organization/idea/etc) does not contribute to "the common
defense" or such a thing if controlled/used by a disciplined/trained
organization of people, how could it be a weapon? If it is not "arms", then
it could not be protected by the second amendment.

That's a signficantly wider category than arms is typically considered to
be. But making it smaller is difficult against the thorn of time.

So for better or worse, the Supreme Court standard now is that the
> protected arms are those that are useful to, and used by, militias -
> whatever we take that word to mean; it had a specific meaning in the 18th
> century that's no longer of any relevance.  Whatever the *actual* facts,
> sawed-off shotguns - and apparently fully-automatic weapons - are among the
> things that can be banned as "not the right sort of weapons".
>

That's such a non-sequitor that I feel like I just don't understand, but
it's probably just how it is. If the People let their rights be taken from
them, by those elected by them, then there is no helping it anyway.

> The law is not a simple or pretty thing.  It evolves in sometimes
> arbitrary ways - note the angst over rulings that treat corporations as
> people, which all trace back to a side comment in a footnote in a decision
> in a case about something else, which somehow has frozen into a major
> principle.  (Well, the "somehow" is quite clear:  The courts are big on an
> idea call stare decisis, which basically means "let sleeping dogs lie":
>  Unless there is a really, really good reason, the strong bias is to leave
> decisions and interpretations that people have come to rely on alone,
> avoiding major disruption, whatever their basis.)
>

It is in many ways their job to interpret the law the way it is commonly
accepted to be.

Treating legal persons, corporate or corporal, similarly is pretty
reasonable. It's just when it disempowers people where it should do the
opposite that angst really starts seeping in. There should be recognition
of capabilities, an individual or small company cannot (may not?) be
expected to be able to perform like a larger company can. Different people
can neither be expected to perform to the same standards, for example in
case of mental illness.

> The Second Amendment's bizarre language has been a problem pretty much
> since it was written, and while there have been changes in interpretation
> over the years - and there has definitely been a strong trend in recent
> years for scholars and judges of all political persuasions to see it as a
> stronger protector of an individualized right than was the case in the past
> - things like Miller have grown up around it and have also, for now, become
> settled law.
>

Thank you for the dissertation. It was well received :)

I think no judge can sanely claim gun regulations that restrict the right
to bear arms to be constitutional. Specifically of paramount and
contemporary importance is the protection against a tyranical government,
and foreign attacks from geopolitical powers like China and Russia and,
most Catch-22ish terrorists and murderers, in mass shootings or otherwise.

I would very much appreciate people being encouraged to take arms in the
context of militia's. A single armed man is not reliable enough, nor
capable enough, to contribute meaningfully to the common defense or any
such thing.

I also would bid the United States' federal government to provide an
interpretation of the second amendment that allows the states to prevent
purchase or transfer of certain devices when not in conjunction with a
militia. That militia's may be registered at the state or federal
government, at no charge to them, limited only in that it requires several
natural persons to create it and that these natural persons may only
participate in three militia's. That militia's must in some shape or form
encourage the discipline to comply with laws as they apply in their area of
operation, lest they are an encouragement of criminal behavior and are
indeed not militia's at all. And more such rules as provide a regulated
environment in which one may justly execute his or her right to keep and
bear arms

After all, a device handled by one not trained to use it can never be arms
at all.

------------

To apply this directly to cryptography: export and import could still very
well be made illegal. The truth is that information should be free, because
without free information reality becomes distorted in ways that can cause
harm beyond belief.**

I seem to have ran offtopic there. It was meant to prove that information
is going to have a lot of changes to it, and knowledge about crypto is
fundamentally information. Important and export restrictions are silly.

** ramblings with value perchance moved here because I actually do care
about not wasting your time (it's just hard to avoid, sorry about that):
 The world is not ready for it, but through technological means we are
become increasingly capable of making all information stored in computers
easily accessed. There is fighting against it but it will not succeed and
every person harmed in it is a person too many. We much guide it, lest much
else will be lost, copyright and trade secrets have their place for now.

However, not just our ability to store and examine information is becoming
more and more unlocked. The ability to create and collect information has
been growing at least as explosively. The cost of a networked video
camera's and microphones is dropping and will continue doing so until every
place humans live will be recorded, for ever increasing durations, as any
crime's cost to humanity will exceed the cost of placing the recording
device.

You might think privacy, shame and just the fabric of society will not
accept it. And it's true. The whole fabric will tear and tear until privacy
becomes ridiculous. Not because privacy isn't a great thing now, it is!,
but because as we will come to understand and tolerate each other it will
become irrelevant.

That's a dreamy outlook on it. Another is a police superstate wherin humans
have no real place except as biological machinery.
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