From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
Date: Sat, 5 Oct 1996 06:12:59 +0800
To: Steve Schear <azur@netcom.com>
Subject: Re: The Right to Keep and Bear Crypto
In-Reply-To: <v02130500ae79cef28e84@[10.0.2.15]>
Message-ID: <Pine.SUN.3.95.961004110522.10345G-100000@viper.law.miami.edu>
MIME-Version: 1.0
Content-Type: text/plain


This will be my last post on this thread.

On Thu, 3 Oct 1996, Steve Schear wrote:
[...]
> 
> However, I found much disturbing.  The inference that the Exec branch could
> on the one hand classify crypto as a munition ('arms' by any other name),
> while for constitutional purposes the Courts may not exposes a deep-seated
> legal duplicity.
> 

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?  The ultimate result would be the same (since this is
arguably allowed by the statute, and the non-arms have *even less*
constitutional protection (unless they are speech).

> Constitutional interpretations over the past century not withstanding, it
> is clear (to me) that a substantial number of the Framers would abhor what
> has become of the Second Amendment's ... right to keep and bear arms.
> 

This is a different issue; it is irrelevant to the matter at hand since
crypto is not arms under ANY reading of the second amendment. 

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

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.  (This has
the interesting side-benefit of cutting the list down to very manageable
size.) This may explain why I do not respond to certain kinds of messages.

I should also add for the benefit of certain third parties to this debate
that I stopped responding to gun control flames three years ago after the
email flood attack by rabid pro-gun people that temporarily crashed my
account.

I do not mean by this to attempt to stifle any discussion, only to explain
why I'll concentrate on baby-tending and other work rather than go on in
this vein. 

**Benjamin Bradley Froomkin, b. Sept. 13, 1996, 8 lbs 14.5oz 21.5"**
                  **Age two weeks: 9 lbs 12 oz, 23"**
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's hot here.  And humid.