Re: The Right to Keep and Bear Crypto

>No. And No.  This argument will never fly in any court.
>
>If you want to see why, go to my homepage
>
>http://www.law.miami.edu/~froomkin
>

Thanks, the material was indeed informative.  Some great work!

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.

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.

One of the primary reasons put forth by the Framers for such a right was in
order to resist the an oppressive state.

        The strongest reason for the people to retain the right to keep
        and bear arms is, as a last resort, to protect themselves against
        tyranny in government.
                                  --Thomas Jefferson

        When firearms go, all goes. We need them every hour.
                                  --George Washington

It is ludacrous to expect citizens armed with no more than side arms,
bolt-actions and shot guns to resist the actions of a modern military or
law enforcement which citizens may find in violation of their inaliable
natural rights (whether mistaken or not).  In my opinion, all citizens
should be be able to keep and bear any arms (without registration) which
the state might use against them.   To do so now is a criminal action.  So
be it.

Unfortunately, it is common for groups especially governmental to be come
statist, mean spirited and eventually malevolent.

I hope jim bell or his ilk are soon successful at putting up functional,
anonymous and active AP sites.  I can't wait to wager!

-- Steve

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.

On Fri, 4 Oct 1996, Michael Froomkin - U.Miami School of Law wrote:

[pro-gun-control flame deleted]

> 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. 
> 

How do strong, fundamental disagreements get resolved if discussion is not
possible?

Granted that CP is not the right forum.

bd

In <v02130500ae79cef28e84@[10.0.2.15]>, on 10/03/96 
   at 09:02 PM, azur@netcom.com (Steve Schear) said:

-.It is ludacrous to expect citizens armed with no more than side arms,
-.bolt-actions and shot guns to resist the actions of a modern military or law
-.enforcement which citizens may find in violation of their inaliable natural
-.rights (whether mistaken or not).

        aah, but it certainly suits the government who was mandated to
    be *our* servants, does it not?  after all, how can they usurp the
    power to rule us if they are denied the 1,000,000 times overkill 
    they have deemed necessary to "govern," rather than serve, us.

        2000 years ago, the wag Marcellus said: "...the lowest element
    of our [Roman] society is the police...."  

        we talk about the 'thin blue line' between us and the criminal
    element --it is thin because far too many of our supposed pro-
    tectors are on the 'wrong' side of the thin blue line; basically, 
    they have been granted, by an illegal government, a legal right 
    to break our heads with their night stick...  at their discretion.

-.In my opinion, all citizens should be be
-.able to keep and bear any arms (without registration) which the state might
-.use against them.   To do so now is a criminal action.  So be it.
-. 
        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!).

        the government is just being realistic  --why should they grant
    us a right which we might use to protect our constitutional rights
    and topple their corrupted government?

        crap!       --or, maybe galloping prairie muffins!

        I'm not sure I want my neighbors to park a loaded panzer in 
    their front yard...   or indulge in clipping every midnight 
    (exhausting a clip in wanton fire)...  or store 5+ gallons of liquid
    nitroglycerin (which should be interesting in our 120 degree
    summer heat)...
    
        my neighbors and I might be justified in gently placing one big
    mutha of a blast mat over the neighbors property --even if that
    might be prior restraint, but to go so far as to say let's kill him
    before anything happens is certainly preempting his rights.

        unfortunately, those are the same arguments our imperious 
    government uses to justify limiting or prohibiting our personal 
    armaments, no matter how small.  even BB guns are facing regulation
    now....  

        ...and to think I received my very own .22 rifle and 4-10X 
    scope for my sixth birthday!  the life expectancy of the local 
    'herd' of jack rabbits took a sudden nose-dive!  by 10 I had a 
    semi-automatic and the ratio fell again --multiple kills before 
    the field was clear!  the arrival of the .223s years later made it 
    exciting --the explosive level suddenly became satisfying!

        am I begging to sound like one of our famous online 
    personalities yet? <g>

-.Unfortunately, it is common for groups especially governmental to be
-.come statist, mean spirited and eventually malevolent.
-.
        power is intoxicating
          power corrupts
            absolute power corrupts absolutely

    or, in other words, 'what else is new?'

-.I hope jim bell or his ilk are soon successful at putting up functional,
-.anonymous and active AP sites.  I can't wait to wager!

        have you been smoking something special these days?

        and why only wager?  --are you not planning to participate?
    after the first shower of a bloody head shot, the rest are easy.

        as tanatlizing the argument for AP may be, it is a childish
    and petty display, a temper tantrum: the cowardly exercise 
    of revenge.

        very little, in anything, warrants revenge; there are needs to 
    redress legitimate wrongs, and therefore ways.  what has 
    fundamentally gone wrong in our society is there is little justice,
    particularly v/v our corrupt elected officials and their 
    paymasters; and execution takes over 10 years by the time 
    every bleeding heart tries an appeal for the occasionally condemned.

        Big Ed Davis, who preceded Daryll Gates as LA police chief,
    had a perfect solution for airline hijackers:

         Big Ed Davis actually parked a long semi-trailer in front of 
    the American terminal at LAX for the purpose:  at the front was 
    the judge's dias, a jury box along one side, lawyers opposite, 
    and a gallows at the far end.  

        there would be an immediate trial by selecting a jury of 12 of
    his peers, chosen as they cleared the arriving flight doors,  and 
    even places for the 3 judge appeal required by CA capital punish-
    ment laws.

        very efficient --and it would not cost the state $10-15 MILLION
    to execute just one criminal.  --the execution would be public, 
    obviously, immediately after the appeal!  I mean, you could do the 
    whole deed and serve justice on your lunch hour!   

        you should have heard the liberals scream about what was 
    nothing less than poetic justice!  even a jury of his peers, real
    peers!

        Big Ed left it parked in front of American until the ACLU filed
    and successfully obtained a permanent injunction against him.   

        Big Ed was a bit colorful <g>; interesting; and definitely not 
    unintelligent --he was my CA state Senator for years after retiring 
    from the force.  

        Anybody wanna guess his party affiliation? --at one time he 
    was on the ballot as both a republican and a libertarian. 

        you should hear Big Ed on privacy issues --he makes all of you
    sound like lost jacklegs and pikers.

        ***************************************************************
        CAVEAT:  under no conditions could I ever condone Jim Bell's
    Assassination Politics --it may be anarchistic in and of itself, but
    it is a thinly disguised criminal amentality, not only from the 
    extant of trying to 'moralize' murder, but a form of power politics
    (and shadow government) which actually exceeds the abuses of our
    supposedly democratic republic run amuk with abusive police powers.

    Not only is revenge politics immoral, but AP is a corruption of 
    society by lawless and arbitrary behavior of a few players who can
    afford the price of entry (to the betting pools).
        ***************************************************************

--
  "I don't make jokes. 
    I just watch the government and report the facts."
        --Will Rogers

attila wrote:
> In <v02130500ae79cef28e84@[10.0.2.15]>, on 10/03/96
>    at 09:02 PM, azur@netcom.com (Steve Schear) said:

[some text deleted]

> CAVEAT:  under no conditions could I ever condone Jim Bell's
> Assassination Politics --it may be anarchistic in and of itself, but
> it is a thinly disguised criminal amentality, not only from the
> extant of trying to 'moralize' murder, but a form of power politics
> (and shadow government) which actually exceeds the abuses of our
> supposedly democratic republic run amuk with abusive police powers.
> Not only is revenge politics immoral, but AP is a corruption of
> society by lawless and arbitrary behavior of a few players who can
> afford the price of entry (to the betting pools).

You seem to be missing or confusing some points:
AP, as I understand it, is not necessarily revenge, any more than any 
other type of business deal.  You don't stab the competitor primarily 
because you wanna get revenge, you just do it as a practical matter, to 
lessen the competition.  You fail to grasp the predatory reality of what 
humans really are, and in that failure of illumination, you succumb to 
the illusion that humans are something closer to divine spirits than, 
say, a hawk, an eagle, or a wildcat.

Your religious beliefs are fine, I'm sure, as far as they go, but if you 
can agree with the principle of "separation of church and state", then 
you should see that trying to apply one's own personal religious 
convictions in dealing with the people who run Mother Earth is a fool's 
game.  Go to church, worship God, then, when you're doing business, 
treat people with the same courtesy you'd want from them.  The original 
Golden Rule.

You already agree that police killings *may* be justified, i.e., are not 
necessarily murder, then, as though "the people" have no right to apply 
the same techniques themselves (they "must" surrender this option to the 
state etc.), you label what the people would do as murder.  Bottom line 
is not whether AP would be murder, but whether you think the people have 
an inherent obligation to always surrender the right to kill to govt. 
authorities, even in a state where the govt. authorities are far beyond 
the point of "trust".

The last point about only a few players being able to afford AP is also 
shortsighted, from what I understand.  The collective anonymous 
contributions of a lot of little people could help unseat a much larger 
tyrant, which should go a long way in helping the tyrant control 
him/herself.

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."