From: Phil Karn <karn@qualcomm.com>
Date: Fri, 28 Jan 94 13:18:03 PST
To: pmetzger@lehman.com
Subject: Re: 4th ammendment and Cryptography
In-Reply-To: <199401281954.OAA03871@snark>
Message-ID: <199401282116.NAA11154@servo.qualcomm.com>
MIME-Version: 1.0
Content-Type: text/plain


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