Comment by briHass | Hacker News Reader

Comment by briHass | Hacker News Reader

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The examples you chose are interesting, not only because they reveal an obvious bias.

I think the correct interpretation of the various amendments is to view them in conjunction with the ninth. That is, the default should be to argue in good faith about what rights the amendment is attempting to preserve, not nit-picking them to find technicalities that the state can use to limit or restrict someone's rights.

Your hint at the 2nd Amendment is one such example: it's clear from reading other writings by the Founding Fathers that the 2nd Amendment was written to allow an individual to own firearms. Likewise, the 5th Amendment should be interpreted to allow an individual to refuse anything a court orders him to do that would force him to reveal evidence or testimony that could be used to incriminate him. I would argue that the entire point of that part of the 5th is to prevent exactly what is going on here: torture (involuntary imprisonment without conviction) used to coerce a confession.

Hopefully this issue is decided properly, as we are rapidly approaching a time where it may be possible to do a fMRI-like scan of someone's brain to determine guilt/innocence. Should we allow a court, with only a search warrant, the ability to scan our brain and possibly uncover other evidence of crimes?

I wonder how this argument holds up if the government were to make deniable encryption illegal.

If it is possible to determine that you have encrypted data, and it is possible to verify the accuracy of your testimony, there should be no concern about compelling false testimony.

Which is different from compelling testimony that cannot be verified, at least in the sense that you know that only the people being held in contempt could possibly be innocent.

Maybe the tradeoffs that should.be made in this case are different.

Proper encryption is indistinguishable from random noise

So make random noise illegal? You laugh, but this is precisely how these people think. Also https://en.wikipedia.org/wiki/Illegal_number.

> it's clear from reading other writings by the Founding Fathers that the 2nd Amendment was written to allow an individual to own firearms

It's also clear it was to buttress the perpetuation of slavery in the minds of founders. So, you know.

Could you please mention the number of amendment that restricts the right to refuse self-incrimination in the same way as the 13th amendment restricted the right to own slaves?

> it's clear from reading other writings by the Founding Fathers that the 2nd Amendment was written to allow an individual to own firearms.

This is irrelevant, it matters what made it into the contract, i.e. Constitution.

The second amendment in full is: "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."

A well regulated militia is completely dropped from all modern court rulings. Guns can and should be regulated.

The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states. If you don't like that get 2/3rds of congress to agree with you and change the constitution.

>The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states.

That's what we discussed. Given what the constitution says, that ruling is BS.

The law and supreme courts are politics --not some clean, divine, body that comes with only just rulings.

"Liberty and justice for all", for example, if I'm not mistaken, was in there from the beginning, but the courts could not give a rats ass for slavery, segregation, etc, until they were forced to by popular protests.

So, that 2/3 of the congress is not much consolation either.

The supreme court also ruled that child labor laws were unconstitutional, that collective bargaining was illegal, and that runaway slaves should always be returned to their original owners wherever they were found. Precedent changes, and an activist ruling like Heller that is more political than judicial in its justification is relatively easy to reverse. No need for a constitutional amendment for the first 13 words of the 2nd amendment to no longer be written in invisible ink, just a good case and poof it becomes a collective right the same as it was for the first 175 years or so of US history.

It's impressive that you read "regulate" as somehow not aligned with "an individuals right to own guns".

These are not mutually exclusive, and I personally want people to maintain the right to own guns.

What I don't want is semi-automatic rifles and handguns to be available to the population at large and without any regulation whatsoever so that they can easily be incorporated into some lunatics shooting spree.

I know this will be unpopular: all semi-automatic handguns and rifles should be outlawed.

> and that right cannot be removed by states.

but cities like new york somehow removed it.

It's not irrelevant, because it allows you to understand what words like "militia" and "well regulated" meant at the time. They don't mean what a casual reader might think they do. The Supreme Court frequently goes back an looks at other historical records/writings of the time to dig into the real meaning of the words.

It really doesn't matter, because as Heller held, the first part of that sentence is the prefatory clause which doesn't limit or expand the scope of the actual, operative clause: "the right of the people to keep and bear arms shall not be infringed."

>because as Heller held, the first part of that sentence is the prefatory clause which doesn't limit or expand the scope of the actual, operative clause

Which is exactly the inverse of what it should be: the spirit of the law being above and adjusting the "operative" part.

The claim that the first clause is prefatory is some seriously contorted motivated reasoning on the part of the majority in the Heller case, and for those who would like to see what real historians think I would direct you to the amicus brief in that case from Rakove et al (http://www.scotusblog.com/wp-content/uploads/2008/01/07-290_...)

"This is irrelevant, it matters what made it into the contract, i.e. Constitution."

This was a correct and useful stance - and a fruitful ground for debate - prior to 2010.

However, what matters now is District of Columbia v. Heller[1] and McDonald v. City of Chicago[2] which "held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states".[2]

[1] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

[2] https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago

Guns already are absurdly heavily regulated. Unless you actually mean banned.

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