From: tien@well.sf.ca.us (Lee Tien)
Date: Sat, 3 Feb 1996 11:30:48 +0800
To: cypherpunks@toad.com
Subject: Re: Encryption and the 2nd Amendment
Message-ID: <199602030233.SAA07384@well.com>
MIME-Version: 1.0
Content-Type: text/plain


I agree that a 2nd A. argument is legally worthless; so do Mike Godwin and
other persons whose legal opinions are generally carefully considered.  

FWIW, I note that one gov't study of the constitutionality of encryption
restrictions, done by some law profs for DOEnergy, had a section surveying
the possible applicability of the 2nd A.  Since we are not using this
argument in Bernstein, I didn't read the section with any care.  The thrust
was, if I recall correctly, that even if the 2nd A did apply, it has so
little force that it doesn't matter (i.e., one can't easily point to
doctrine calling for "heightened" or "strict" scrutiny under the 2nd; I
happen to believe that there should be some form of scrutiny beyond
"rational basis" for infringement of 2nd A. rights, having been impressed
by Sanford Levinson's analysis, but the cases do not support it).

I suspect that one reason why folks find this approach rhetorically
interesting is that it's got that "you called it that, so . . . " flavor. 
In a different post on a different issue, Perry Metzger referred to
estoppel, and I think the same intuition operates here. But as Michael
Froomkin said, what the State Department calls it shouldn't be relevant to
the meaning for constitutional purposes.  Also, estoppel against the
government is quite limited.  There's a line of cases saying that, and
courts frequently refuse to hold the government to the same kind of
estoppel as private parties.  (Agreeing w/Peter Junger)

Lee Tien