Re: Encryption and the 2nd Amendment

[Michael Froomkin <froomkin@law.miami.edu>]

IMHO the 2nd amendment argument is bunk. [I haven't seen the Wired 
article BTW, so this is just a general point.]

The definition of crypto as arms was accomplished as an administrative
convenience by an agency of the US govt.  It is not a definition of
constitutional significance.  To oversimplify only a little bit, agencies
don't get to define terms in the constitution -- and a good thing too, or
they might try to define e.g. "speech" in some funny way. 

The issue is whether under any fair reading of the 2nd Am. you can read
"arms" to include encryption.  You might try to do this by "original
intent" (except that I've never seen a shred of evidence for this).  Or
you might try to do it by arguing that the meaning of the term "arms"
should change with the times and crypto fits the purposes (defending your
home?) of the amendment.  But this is a very tough argument to make, and
I've never seen anyone try it.  I suspect it is also bound to fail; indeed
any interpretive system that would stretch the constitutional use of the
word "arms" so wide as to fit crypto could equally well be used to exclude
anything more advanced than muskets and early rifles... which probably 
explains why I know of no such arguments either.

I must be posting some version of this every nine months or so.  Each time I 
get hate mail.  Let's make this an exception shall we?

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
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