From: azur@netcom.com (Steve Schear)
Date: Sat, 5 Oct 1996 10:52:22 +0800
To: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
Subject: Re: The Right to Keep and Bear Crypto
Message-ID: <v02130500ae7ac982a9d8@[10.0.2.15]>
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>Why is it "disturbing" that for administrative convenience a regulation
>uses a shorthand term (in effect saying "treat crypto as if it was a
>munition"), but that the courts say whatever convenient shorthand you use
>for regulatory bookkeeping, it has no constitutional effect?
>
>What would be the advantage of having the government simply re-impose the
>ITAR word for word identically for all materials that are not arms in the
>constitutional sense?

I guess this is the crux of the matter.  I believe that most or all of
ITAR's munitions should be constitutionally as arms.

>
>As for your argument that the 2nd Am should be read expansively, rather
>than narrowly, personally I doubt strongly that the Framers would have
>been unanimous on this.

I doubt they were unanimous on most any issue.

>Recall that the Articles of Confederation were
>abandoned in part due to Shay's rebellion -- and the (majority)
>Federalists (of whom the Jefferson you quote WAS NOT a part)  managed to
>push through a strong centralizing government.

Yep, when they saw that some of the principles which help fuel the
Revolution could be used to oppose a new order they adopted some of the
same tactics and governmental view points of their former oppressors. The
original calls for strong states rights and a weak central authority were
swept away under Hamilton and early Supreme Court rulings.  In some sense,
the new government became just different clothing on the same old body.

>Recall that the
>constitution in its first draft didn't even have a bill of rights!  I am
>absolutely certain that the Framers recognized that things change over
>time, and that they would have intended indeed did intend for us to
>interpret the constitution with some degree -- but not too much --
>flexibility.  As someone who believes in the importance of fidelity to
>legal texts, I think we have a duty to make every word in the Constitution
>count.  I therefore place weight on the fact that the 2nd amendment is
>*unique* in giving the policy reason for the limitation on government
>power ("a well-regulated militia" being essential &tc.).  This is ample
>grounds to read the text as applying only in the context of an organized
>militia -- not casual gun ownership -- **whether or not** this complies
>with our best (and inevitably fallible) reconstruction of what certain
>historical individuals may have thought the text meant, especially if the
>historical evidence is mixed.

        [The Constitution preserves] the advantage of being armed which
        Americans possess over the people of almost every other nation
        [where] the governments are afraid to trust the people with arms.
                                  --James Madison
                                  The Federalist No. 46, 1787


>[PS. Why do you privilege the authors of the bill of rights over the
>people who voted for it?]

Many of the framers, their mentors (e.g., Machiavelli) and even
dyed-in-the-wool pacificists (e.g., Mahatma Gandhi) feared a central
authority which, after making arms unavailable to general population would
commence to tyranny.

If I did I appologize.  It was not intentional.
>
>I might add that I personally find all discussions of plots to kill
>people, or to watch gleefully while others seek to do so, so morally
>repulsive that I now killfile everyone who takes part in them.

I hope that includes all comuniques from our government's Executive branch
(although they almost never discuss these things publitically, with the
possible exception of our raid on Kadaffi).  How about the popular U.S.
consensus that the government aught to have killed Saddam?

Seems to me that some of the natural rights the people gave the government
need to be taken back (such as the perogative for personal actions
affecting those outside the U.S.)  Though I doubt that the government would
ever allow it. Why should the government call all the foreign policy shots
and have all the fun?  Especially when you see what a poor track record
they have.  Seems they should step aside for while and let some direct
democracy go to work for a change.

Thanks for your informative responses.  I don't expect a reply as you've
undoubtedly placed me in your kill file (as some other may have already).

-- Steve