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 )