Hacker News Reader

Comment by treebeard901 | Hacker News Reader

The classification of cryptography as munitions was an interesting choice. The first amendment may protect domestic encryption capabilities as stated by the wikipedia article. From a legal standpoint, does encryption being classified as munitions also put it into second amendment territory? As information becomes weaponized, it's an interesting thought. The first amendment is arguably more vulnerable these days, so I wonder if perhaps a second amendment argument could be made in support of domestic encryption. It certainly would help with marketing the argument to a certain segment of the population.

View on HN

IANAL but I’m pretty sure the second amendment only applies to guns; you can’t walk around with an RPG on your shoulder.

Isn't the 2a just a "well armed malitia"? Maybe an RPG is more than well armed, but encryption?

"well-regulated militia," but it's pretty much an open question how much that actually has to do with the right described in the second clause. Gun rights activists tend to down-play that first bit, as it implies a collective perspective that they find conceptually incompatible with unlimited individual gun ownership rights.

Some context into the mindset and beliefs of the people who penned the original amendment is helpful in this case, but you find very little in support of the level of control that the anti-2A people want.

Gun rights antagonists tend to downplay that bit, as it implies an individual perspective that they find conceptually incompatible with tightly-controlled gun ownership permissions.

They also downplay that in every case of a gun being used in some criminal way, numerous laws and regulations are already being broken. So what difference will more regulations make? The only thing that could possibly give the gun-control people what they really want is total confiscation of all guns, and even if that were somehow possible there would be a civil war over that if it were to be seriously attempted.

> The only thing that could possibly give the gun-control people what they really want is total confiscation of all guns

Strawmen are so unhelpful in reasonable debate.

Not all gun control advocates are either anti-second amendment, nor in favor of eliminating all guns. To say otherwise, creating a false black/white dichotomy in the gun debate, does a massive disservice to both gun advocates and gun control proponents.

Ironically, by making the choice "all guns" or "no guns", gun advocates themselves are forcing the "no guns" option to the center of the debate. As a wave of frustrated anti-gun youth become voters and reasonable political moderates look at options to "protect the children", I really think it's in gun proponents' best interests to provide a better alternative than "do nothing" on one side and "civil war" on the other.

It ceases to be a strawman when it's on a sign held by protestors acting in good faith[1].

At the end of the day, these stances, even the "moderate" ones you mention, are irreconcilable all the way down to first principles. If you are for gun control, you are necessarily for measures that will restrict the right to bear arms as it is recognized today, some more, some less, but restrictions on the right all the same.

There's no real evading that.

[1] https://pics.me.me/yes-i-do-want-to-take-away-youur-guns-you...

agar said that not all gun control advocates want to repeal the second amendment, not that there aren't any gun control advocates who want to repeal the second amendment.

Of course some gun control advocates want a "we've come to collect your guns" law. I never said that no one holds extreme positions.

But that does not mean that everyone holds extreme positions, which is what you claimed.

Arguing that the extremes are the only options is a problem.

How productive would health debates be if the only two options presented were veganism and paleo? If the only sex ed options are abstinence or polyamory?

There must be room for compromise, or there is no debate, only argumentation.

The problem is that the "compromise" touted by gun control advocates is entirely one-sided - more restrictions, no concessions. No quid-pro-quo, only further restrictions on the right.

That's not compromise, that's capitulation.

This leads to an honest question on my part:

What concessions would gun rights advocates accept in order to allow some restrictions? What's there left to give on this issue that wouldn't undermine any controls.

Say, for example, I wanted gun owners/users to be required to be as responsible as car users, i.e. pass a test, maintain a license and registration for weapons and weapon users, and hold liability insurance to cover damage either intentional or accidental (that would obviously scale with the likelihood and amount of damage the gun can do). What can gun control advocates give that will get that done?

I think part of the reason the gun debate can be one sided from the "control" side is that the US already is quite far to the "rights" side of the spectrum, relative to the rest of the developed world. It can be difficult to see where we could plausibly move further in that direction without causing more of the problems we're (hopefully) all trying to solve: unnecessary bloodshed.

In your example, since we now have a mandatory testing/licensing scheme and insurance, I see no reason why CCW's countrywide shouldn't become shall-issue. There should also be a stipulation that licensing is a thing you grant to people, not individual weapons.

Another example I floated in previous threads is surfacing psychological issues in NICS checks (stuff like certain diseases or involuntary holds) and granting access to that system to everyday people rather than just retailers.

My state constitution clarifies it as "The right of the individual citizen to bear arms in defense of himself, or the state..."

Does it really say ‘himself’?

Yes, it likely does. With English lacking a gender-neutral pronoun, "he" or "him" or "his" historically did not necessarily imply the male sex, depending on context. As "man" can refer to all of humankind, again it's a matter of context.

Yet the actual second amendment seems to avoid the problem as far as I can see. Edit: And of all the second amendment issues that could be argued, I somehow picked this one.

I wish this was the only surprising bit in the constitution of Alabama. The section outlawing interracial marriage was only removed in 2000, and it still contains a section mandating segregated public schools.

Your state constitution doesn't particularly get a say in what the US constitution means (so says the 10th amendment).

That's not necessarily true. The Supreme Court has ruled that the 2nd amendment only prohibits the federal government from "infringing" on your right to bear arms, and not the states.

https://en.m.wikipedia.org/wiki/Second_Amendment_to_the_Unit...

> The Supreme Court has ruled that the 2nd amendment only prohibits the federal government from "infringing" on your right to bear arms, and not the states.

This was true only between 2008 and 2010. In 2010, the Supreme Court clarified that it was incorporated against the states by the 14th Amendment.

How is it then that different states infringe on the right to bear arms to different degrees?

And it was indeed the case well before 2008-2010. See United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894).

See DC vs Heller, 2008.

> "it implies a collective perspective that they find conceptually incompatible"

so says you. it's not clear to me at all that militia members don't support collective action

The militia in that sentence IS the collective action. How many gun owners are part of a well-regulated militia?

Even the NRA removed references to that first clause from their material.

To be fair, militias of the day weren't generally standing militias, and needed to be mustered.

We do have definitions as to what militias are informed to us by writings of the founders, the federalist papers, previous drafts of the second amendment and, failing that, codified by law in 10 US Code § 311. The definition of militia there ("consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard") will likely have been expanded by our recent advances in military equality.

IAANAL but I'm pretty sure the second amendment is actually really vague in terms of what it refers to, and has actually been tested in court less often than one might think.

It depends how you look at it. What was the purpose. Presumably after fighting in the Revolutionary War the goal was not to give people hunting privileges, they had something else in mind. From that point of view, maybe RPGs should be allowed, but so should attack helicopters, surveillance capabilities, private spy satellites, etc.

> IANAL but I’m pretty sure the second amendment only applies to guns; you can’t walk around with an RPG on your shoulder.

Surprisingly perhaps you can buy a military grade flamethrower complete with a napalm package: https://throwflame.com/ it's not even classified as a firearm, and is illegal in only two states I think.

That flamethrower is awesome. What use does a flamethrower have though besides burning buildings, that a normal gun wouldn't?

Clearing brush. It's considered an agricultural tool IIRC.

Also for preburning (ahead of forest fires) IIRC.

Are you saying that literally fighting fire with fire is a thing?

I may have missed my calling . . . .

I mean... yes?

That is where the saying comes from.

Never really thought about it. But it makes sense to cut a "gap" in the forest using fire, to prevent a fire from crossing the gap. Once burned, something aint gonna burn again...

> What use does a flamethrower have though besides burning buildings, that a normal gun wouldn't?

It can be more effective at clearing bunkers and closed rooms? The military were using these in WWII for trenches, bunkers, clearing brush. My friend's grandpa in US was operating one in the Pacific during WWII.

I just brought it was an example how something potentially more deadly than guns or RPGs is not much regulated and how laws are not very rational sometimes.

> It depends how you look at it.

I recently purchased the Federalist Papers so I could have a better understanding of "how" to read it, what the context was, and what types of discussions to anticipate having with those who'd like to look at it differently

And what have you learned for those of us who haven’t read the federalist papers?

Also, why do they need to be purchased? Isn’t that information in the public domain? Surely enough time has passed and Alexander Hamilton’s family don’t need to continue to profit from it?

They don't need to be purchased(http://www.gutenberg.org/ebooks/1404). Some people still read physical books, though, which generally requires purchasing if they wish to keep the book.

Can’t speak for the parent, but I buy public domain books because it tends to be cheaper than the paper and toner required to print it. And it looks nicer.

This has always been my way of looking at the 2A. It's clearly intended to give citizens the rights and tools to fight wars, otherwise it wouldn't mention it along with militias. Thus, it does seem logical that it extends to armaments of war, such as knives, firearms, artillery, bombs, etc (perhaps even hacking tools).

I'm a gun owner myself, and I've (long ago) taken the stance that the 2A isn't really compatible with modern life, as the people who originally wrote it could not have anticipated the weapons militaries deploy today. It makes sense in my mind that it is Congress' responsibility to regulate what it reasonable weapons for civilized society.

Congress does regulate those weapons.

There's a reason you can't just walk into a Wal-Mart and walk out with a machine gun, or a rocket launcher.

That said, I don't much care for the fact that the requirement to have legal access to machine guns is "be rich enough to buy your way around the law".

Personally, I do think we need a complete re-work of the way we treat weapons to reflect the realities of the modern world.

(1) We have four hundred million weapons in the United States. It is horribly negligent that safe weapon handling is not taught in schools, at multiple levels. Also a good touchpoint to get police interacting positively with the community.

(2) The current background check system should be replaced with a Swiss-style one; e.g., you get a code, valid for say a week or two, that any seller can use to verify that you have passed a background check.

This doesn't create a de-facto registry, so no problem getting gun owners (or the NRA) to go for this one.

(4) A red-flag law that allows immediate family members and healthcare professionals to temporarily bar an individual from purchasing weapons, with safeguards in-place to keep bad actors from abusing the system (e.g., a psychiatrist that just reports all of his patients to the system because he opposes gun ownership).

(5) Removing gun rights only in the case of violent crime. Right now, in most states, misdemeanor assault won't cost you your gun rights, but a felony for tax evasion will. That's ass-backwards.

(6) Machine guns, grenades, rocket launchers, and the like should be available with a license. You really need to be able to show that you can handle these things safely. Right now, it's just "be rich".

(7) Treat short-barreled rifles and shotguns as normal firearms, and silencers like any other accessory.

(8) Concealed-carry should be the same for police as it is for normal citizens. Same licensing requirements: a one-day course, including a test on safe weapon handling. This also ends gun-free zones: if you have a license, you can carry wherever you want.

(9) Open carry needs to work differently for urban and rural areas. The above permit will allow you to open-carry a pistol in an urban area. Rifles, no. Put it in a case. In the countryside, open carry just makes sense.

(10) Actually prosecute straw sellers. Buy a gun for somebody that can't legally buy one on their own, you permanently lose your gun rights, plus whatever punishment makes sense.

(11) Secure storage requirements. If one of your weapons is stolen and used for a crime, you are legally an accessory if you can not demonstrate that you took reasonable measures to store the weapon securely (e.g., a gun safe or lockable case). This doesn't require police inspections, but provides a strong incentive for personal responsibility.

All of this would enjoy massive support from gun owners, and address a lot of existing problems.

These all seem well thought out and reasonable. Thanks for sharing

Seriously. Congress should just concentrate on this list. Just put language around this, and I think they'd have a very reasonable set of gun laws.

How it's written I personally think you should be able to buy any weapon available on the open market. Or at least any weapon that could realistically be used by an infantryman (as the wording is "A well regulated Militia, being necessary to the security of a free State,."

I'd rather have a new amendment then have judges be able to decide what the definition of arms is. Slippery slope. They really could one day decide that 'arms' is only muskets, or even just knives.

Broadly speaking, that's been the holding of the courts since 1939.

U.S. v. Miller loosely established the test (later solidified in 2008's Heller v DC) that weapons commonly used in militia service are inherently deserving of second amendment protections.

Miller, a known mobster who was caught with a sawed off shotgun lost his case because

a) the military testified that they had never used sawed off shotguns, so they were not useful to a military, ergo a militia (which was a lie -- they had used them, and found them useful for trench-clearing)

b) Miller's attorney was not very good, and didn't even challenge that testimony, much less so by totally disproving it -- I offer a little sympathy here as they didn't have Google at the time

Also noteworthy, Miller was actually dead when the decision came down, as he'd been murdered, and because /shrug, the trial kept going, but the defense (for obvious reasons) quit trying. He was sentenced in absentia.

You say solidified, but it was a 5-4 ruling. To determine if handguns could be banned by the city. And an 'arm' that has been used by infantry forces for generations.

Which I find just insane. People say no one wants to take Americans guns rights away, but we were literally one vote from effectively doing so.

Whenever someone says "no one wants to take your guns away", now you can just point them at this and see whether they maintain that position:

https://www.cbsnews.com/news/illinois-town-votes-to-ban-assa...

Except you can own an RPG in the US... It's an NFA classified destructive device. You can also own cannons, tanks, or attack helicopters if you have the money.

There's a school of thought that the word "arms" in the Constitution might have referred mainly to sidearms, not to canons, catapults, warships, etc. The theory is that there were other words like "artillery" to describe larger weapons.

This school only makes sense if you throw out the entire section that mentions a well regulated militia. A militia would be expected to have artillery.

>"Justice Scalia also wrote: “It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

[1] https://takingnote.blogs.nytimes.com/2015/12/11/justice-scal...

I think for a weapon to be 'compliant' with US's second amendment a couple of criteria must be met

a) must be in current wide use in military

b) must be capable of being carried by a single person (which is why tanks and fighter jets will not qualify) This follows form 'individual' focus of the bill of right.

c) must be capable to aim it at a single person (which is why explosive or RPGs would not qualify). This follows from the notion that Bill of Right in general, does not condone collateral damage or collateral effect. As this is Individual's right, and therefore presumes individual's responsibility.

I also find this linguistic analysis of what 'bear arms' meant in 1791s, interesting/educational [2] http://languagelog.ldc.upenn.edu/nll/?p=255

The 2nd amendment doesn't apply to foreigners. Classifying encryption as a munition meant that I have never truthfully answered all the visa waiver questions on entering the US.

It does. A permanent resident alien can purchase and carry firearms in most states, and nonresident aliens can get a license to do so as well.

Fischer v Massachussetts[1] (and other cases won by the second amendment foundation) holds that resident aliens are counted amongst "the people" for purposes of second amendment protection (and other rights too!)

[1] - http://ia800500.us.archive.org/20/items/gov.uscourts.mad.135...

resident alien != foreigner

I believe GP was referring to times s/he's entered the US on a visitor visa of some sort.

Then there may be a de facto restriction against the exercise of such a right by such a person, as one needs to have a permanent address to comply with the laws as they are currently interpreted.

does encryption being classified as munitions also put it into second amendment territory?

It doesn't much matter. Even if somebody made the case that "crypto is a form of 'Arms', subject to 2A protection," the 2A doesn't grant an unregulated right to own whatever "arms" one chooses. All the rights granted by the Constitution are subject to reasonable regulation.

So, Congress could simply legislate a restriction on crypto, much as they have done with machine guns, grenades, and nukes.

Where does it say you can regulate my rights?

WRT the 2A, it's right there in the text: "well regulated".

WRT other rights... Explicitly? Not always in the Constitution. But, if you think you can cry "Fire!" in a theater, you would be mistaken.

SCOTUS has upheld reasonable restrictions on rights over and over. It's a settled matter.

(edited - cleaned up my thoughts a bit)

Stop quoting that case. That was SCOTUS upholding the right of the government to clamp down on speech that encouraged draft dodging or could even be marginally interpreted as disagreeing with it during wartime.

https://www.popehat.com/2012/09/19/three-generations-of-a-ha...

It ain't Dred Scott dumb, but it's up there in stupidity and retarded law.

Well regulated doesn't mean the feds get to control the details of what the militia can use either. The militia is every able-bodied 18-47 year old. The regulated part implies a command structure which the National Guard provides.

I'm not sure what case you're thinking of, because I didn't explicitly mention one.

Chaplinsky v. NH was in 1942 and had nothing to do with draft dodging.

Since then, the courts have ruled inconsistently on the matter. The only common thread is the courts mostly agree that some restriction on speech is permissible - where that line lays is very much up for debate.

WRT the militia - the government disagrees with your assertion. A random citizen cannot go into the gun store and buy a machine gun, or grenades. Special (and expensive) permitting is required. If you're contention is that these restrictions are unConstitutional, I'm not really sure we should bother debating the point.

They were responding to the mention of "fire in a crowded theater," a reference to Schenck v. United States.

Regulated does not imply a command structure, look up the 18th century definition of that word please. Also, to be clear, the National Guard IS the government. The purpose of the 2nd A was to provide a check against the government— it wasn’t a protection for the states — it was a protection for individuals — the Bill of Rights was a declaration of individual liberties not protections for the states. The tenth amendment is an outlier, but even that was part of a coordinated effort to limit the size, scope and power of government.

>The regulated part implies a command structure which the National Guard provides.

That's completely wrong. Each of the 1st ten Amendments - The Bill of Rights - enumerates rights of the individual against government power. Its absolutely absurd to argue that the 2nd amendment somehow refers to a government commanded and organized military body and not to the right of citizens to remained armed to prevent the government from getting out of line.

"Well regulated" in it's historical context doesn't mean anything close to what we think of as "regulation" today. The phrase means "functional" or "functioning". E.g. “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”, or "The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”

It could be argued that the 2nd amendment was put in place to ensure a means of the citizenry to overthrow the government (as an absolute check on an unjust government). Unfortunately it's now just a vestige of an older time and the 2nd amendment only serves to protect the rights of gun hobbyists.

The guns that a person are allowed to bear are nowhere near sufficient to take on the US military, and the modern arms such as encryption and freedom from surveillance are not even guaranteed by the 2nd amendment.

> The guns that a person are allowed to bear are nowhere near sufficient to take on the US military,

I'm tired of reminding HNers about Aghanistan.

Can you elaborate?

I believe he's referring to the Taliban's ability to hold off two modern armies (USSR in the 80s, USA in the 00s) with a much more basic arsenal than either super-power brought to bear.

IEDs were far more of a problem in Afghanistan than small arms.

Yep. And who do you think have the easier time getting ingredients for an IED, the person with a gun or the person without a gun?

Who has the better chance at ambushing and getting away with the enemys weapons: the one with the gun or the one without a gun?

You can do a lot of damage with IEDs, but you can’t overthrow the government with IEDs.

Look at Turkey. The primary tool was encrypted communications and information dissemination. That’s modern power that citizens should have. Right now power comes from information and the preservation of speech and private communications, not a few handguns and rifles (or IEDs).

When the 2nd amendment was written a gun was relatively way more powerful than it is in today’s world. If you had a group of men with guns you were basically on par with the government military.

IMO Turkey has mostly failed now.

However, I'm not saying I'd want them a civil war, just that it failed despite doing everything "right" it seems.

That's an away match.

>The guns that a person are allowed to bear are nowhere near sufficient to take on the US military,

You're getting into spherical cow[1] territory if you think the US citizenry couldn't defeat the US military.

The US military will not be fighting the US citizenry in a hypothetical clean room, it'll be fighting in America. Who are you going to bomb, who are you going to strafe, when your opposition can quietly fade into the populace that provides your material?

1. https://en.wikipedia.org/wiki/Spherical_cow

380 million Americans, 2 million members of the military.

Unless the US were to nuke itself, given the geography, a motivated citizenry could easily take on the US military. Not a scenario I want to imagine, but the US military has troubles in Afghanistan and Iraq — imagine that kind of conflict in the US. Just look at rebels in Syria to see this on a smaller scale.

It does not, because the 2nd amendment protects arms, not munitions (for example, bombs).

Here is the entire text of the 2nd Amendment:

"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."

What's the difference? The 2A certainly applies to cannons. Are those arms or munitions? Grenades are legal to own, just need the tax stamp.

Arms are munitions. Not all munitions are arms.

More information: https://en.wikipedia.org/wiki/United_States_Munitions_List

I think the distinction is between "arms" and "ordinance". Reading through the comments here, it seems "munitions" is a super set of both.

Nuclear weapons are munitions. A U235 bomb like Hiroshima’s is technically a gun even. Do you have a right to carry one of those?

If you can carry a Hiroshima bomb, I’m ok with letting you.

Novel thought. I could definitely see an argument for it falling under 2A.

This is actually a question that was featured in an xkcd comic[1].

[1]: https://www.xkcd.com/504/

Reply on news.ycombinator.com