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I've wondered for a long time whether the second amendment also has anything to say about cryptography.

by api 7y ago

nickff 7y ago
I have heard that argument made, but it seems to be a peculiar result of the government classifying private key encryption as a weapon to keep it secret during the cold war. I think that the founding fathers would have believed people had a right to encryption, but that it was covered by the tenth amendment or first amendment. I believe that at least some of the founding fathers did use codes and invisible inks. I can't imagine any of them would have seen codes as weapons.
smsm42 7y ago
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. Not sure which part is about cryptography. Unless you consider algorithms to be "arms", but then what isn't?
- LukeShu 7y ago
  > Unless you consider algorithms to be "arms" As the Arms Export Control Act did. > but then what isn't? Things not named in the United States Munitions List.
  - smsm42 7y ago
    That's not a functional definition, that's "government does what it wants" definition. No point in having Constitution and Bill of Rights then - the government can put whatever freedoms it wants on United States Freedoms List and remove whatever it wants from there anytime it wants to. If there's nothing outside contemporary whim of the government and any government decision is as legitimate as another - then what's the point of discussing constitutional amendments and rights anyway? Rights are what the government says they are, and that's it.
    - LukeShu 7y ago
      If you reduce all legislative action to "whatever it wants ... anytime it wants to" then there's no point in discussing any of this; they can just pass an amendment to the Constitution. You're right, it's not a common-sense definition, it's a "rule of law" definition. If the government decides to regulate encryption as arms, then it must deal with the consequences that it is admitting that encryption is arms, and that the constitutional limits on how it how it regulates arms apply to how it regulates encryption. Individual laws form a system, and even though parts of the government can change individual laws, they must still obey the system as a whole; that's what the rule of law is about.
- deleted 7y ago
  [deleted]
munk-a 7y ago
The second amendment has long been acknowledged to not allow blanket and unlimited access to weapons, the US Government could pretty trivially counter-argue that end-to-end encryption is military grade and beyond the needs of the consumers - if that tactic was taken it'd be difficult to defend the necessity of consumers to have access to that level of encryption in a technical manner that'd hold sway on the supreme court. To be honest the second amendment, for all the out-sized media attention it receives - is a rather ineffective and unimportant portion of the Bill of Rights - falling quite far down any reasonable ranking.... Still more important than the third though - especially since the US routinely ignores the spirit of it. That said amendments 1 & 4 are probably quite relevant, especially 4 - this law, while covering a novel subject not previously assumed, aims to specifically deprive persons of their rights to private communication including in cases where just cause cannot be established.
- DFHippie 7y ago
  > To be honest the second amendment, for all the out-sized media attention it receives - is a rather ineffective and unimportant portion of the Bill of Rights - falling quite far down any reasonable ranking Particularly since most of the US's peer countries manage to get along quite well without anything like it.
  - elliekelly 7y ago
    Why on earth is this downvoted? There are many “freedom” indices[1] that measure the rights afforded to individuals in each country. These indices are published and maintained by groups all along the political spectrum. They all include things like due process and free speech but I’ve yet to come across one that gives weight to an individual’s access to weapons. The “Human Freedom Index”[2] published by the ultra-libertarian Koch-funded Cato Institute doesn’t even include it. [1] https://en.m.wikipedia.org/wiki/List_of_freedom_indices https://en.m.wikipedia.org/wiki/List_of_freedom_indices [2] PDF page 24/numbered page 18 https://www.fraserinstitute.org/sites/default/files/human-freedom-index-2019-rev.pdf https://www.fraserinstitute.org/sites/default/files/human-fr...
    - 7y ago

I've wondered for a long time whether the second amendment also has anything to say about cryptography.

by api 7y ago

I've wondered for a long time whether the second amendment also has anything to say about cryptography.

I have heard that argument made, but it seems to be a peculiar result of the government classifying private key encryption as a weapon to keep it secret during the cold war. I think that the founding fathers would have believed people had a right to encryption, but that it was covered by the tenth amendment or first amendment. I believe that at least some of the founding fathers did use codes and invisible inks. I can't imagine any of them would have seen codes as weapons.

smsm42 7y ago

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. Not sure which part is about cryptography. Unless you consider algorithms to be "arms", but then what isn't?

LukeShu 7y ago
> Unless you consider algorithms to be "arms" As the Arms Export Control Act did. > but then what isn't? Things not named in the United States Munitions List.
- smsm42 7y ago
  That's not a functional definition, that's "government does what it wants" definition. No point in having Constitution and Bill of Rights then - the government can put whatever freedoms it wants on United States Freedoms List and remove whatever it wants from there anytime it wants to. If there's nothing outside contemporary whim of the government and any government decision is as legitimate as another - then what's the point of discussing constitutional amendments and rights anyway? Rights are what the government says they are, and that's it.
  - LukeShu 7y ago
    If you reduce all legislative action to "whatever it wants ... anytime it wants to" then there's no point in discussing any of this; they can just pass an amendment to the Constitution. You're right, it's not a common-sense definition, it's a "rule of law" definition. If the government decides to regulate encryption as arms, then it must deal with the consequences that it is admitting that encryption is arms, and that the constitutional limits on how it how it regulates arms apply to how it regulates encryption. Individual laws form a system, and even though parts of the government can change individual laws, they must still obey the system as a whole; that's what the rule of law is about.
deleted 7y ago
[deleted]

munk-a 7y ago

The second amendment has long been acknowledged to not allow blanket and unlimited access to weapons, the US Government could pretty trivially counter-argue that end-to-end encryption is military grade and beyond the needs of the consumers - if that tactic was taken it'd be difficult to defend the necessity of consumers to have access to that level of encryption in a technical manner that'd hold sway on the supreme court. To be honest the second amendment, for all the out-sized media attention it receives - is a rather ineffective and unimportant portion of the Bill of Rights - falling quite far down any reasonable ranking.... Still more important than the third though - especially since the US routinely ignores the spirit of it. That said amendments 1 & 4 are probably quite relevant, especially 4 - this law, while covering a novel subject not previously assumed, aims to specifically deprive persons of their rights to private communication including in cases where just cause cannot be established.

DFHippie 7y ago
> To be honest the second amendment, for all the out-sized media attention it receives - is a rather ineffective and unimportant portion of the Bill of Rights - falling quite far down any reasonable ranking Particularly since most of the US's peer countries manage to get along quite well without anything like it.
- elliekelly 7y ago
  Why on earth is this downvoted? There are many “freedom” indices[1] that measure the rights afforded to individuals in each country. These indices are published and maintained by groups all along the political spectrum. They all include things like due process and free speech but I’ve yet to come across one that gives weight to an individual’s access to weapons. The “Human Freedom Index”[2] published by the ultra-libertarian Koch-funded Cato Institute doesn’t even include it. [1] https://en.m.wikipedia.org/wiki/List_of_freedom_indices https://en.m.wikipedia.org/wiki/List_of_freedom_indices [2] PDF page 24/numbered page 18 https://www.fraserinstitute.org/sites/default/files/human-freedom-index-2019-rev.pdf https://www.fraserinstitute.org/sites/default/files/human-fr...
  - 7y ago