Bearing Arms – 2nd Amendment and Hackers – The Constitution

All discussions of the right to bear arms in the United States start with the Second Amendment. But since words can’t interpret themselves for specific cases, our next stop is the United States Supreme Court.

One popular resource, The Constitution of the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated), covers the Second Amendment in a scant five (5) pages.

There is a vast sea of literature on the Second Amendment but there is one case that established the right to bear arms is an individual right and not limited to state militias.

In District of Columbia vs. Heller, 554 U.S. 570 (2008), Justice Scalia writing for the majority found that the right to bear arms was an individual right, for the first time in U.S. history.

The unofficial syllabus notes:

The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

Interesting yes? Disarm the people in order to enable “…a politicized standing army (read NSA/CIA/FBI/DHS) or a select militia to rule.”

If citizens are prevented from owning hacking software and information, necessary for their own cybersecurity, have they not been disarmed?

Justice Scalia’s opinion is rich in historical detail and I will be teasing out the threads that seem most relevant to an argument that hacking tools and knowledge should fall under the right to bear arms under the Second Amendment.

In the mean time, some resources that you will find interesting/helpful:

District of Columbia v. Heller in Wikipedia is a quick read and a good way to get introduced to the case and the issues it raises. But only as an introduction, you would not perform surgery based on a newspaper report of a surgery. Yes?

A definite step up in analysis is SCOTUSblog, District of Columbia v. Heller. You will find twenty (20) blog posts on Heller, briefs and documents in the case, plus some twenty (20) briefs supporting the petitioner (District of Columbia) and forty-seven (47) briefs supporting the respondent (Heller). Noting that attorneys could be asked questions about any and all of the theories advanced in the various briefs.

Take this as an illustration of why I don’t visit SCOTUSblog as often as I should. I tend to get lost in the analysis and start chasing threads through the opinions and briefs. One of the many joys being that rarely you find anyone with a hand waving citation “over there, somewhere” as you do in CS literature. Citations are precise or not at all.

No, I don’t propose to drag you through all of the details even of Scalia’s majority opinion but just enough to frame the questions to be answered in making the claim that cyber weapons are the legitimate heirs of arms for purposes of the Second Amendment and entitled to the same protection as firearms.

Do some background reading today and tomorrow. I am re-reading Scalia’s opinion now and will let it soak in for a day or so before posting an outline of it relevant for our purposes. Look for it late on Wednesday, 25 March 2015.

PS: Columbia vs. Heller, 554 U.S. 570 (2008), the full opinion plus dissents. A little over one hundred and fifty (150) pages of very precise writing. Enjoy!

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