04 April 2006

E2A: The Electronic Second Amendment

EARLY DRAFT: Obviously unfinished. Feedback welcome...

EFF, E2A, and You: The Electronic Second Amendment.

What guarantees your access to the world beyond your browser?

In world of physical media and flesh-and-blood people, the second amendment protects the first, protects itself, and protects most of the rest of the bill of rights, as well as the constitution itself.

Conservatives are typically supporters of a freedom-based interpretation of the second amendment, and enjoy pointing out that if armament goes, speech will soon follow.

How unseemly then, that the online equivalent of the second amendment has become the preserve of scruffy hippies, while conservatives, almost by default, hold ground bounded on the high side by the impassable mountains of censorship, while the low side ends in the high grass of tumultuous discourse, somewhere short of the wild, impenetrable jungles of lawlessness and anarchy.

(awfully purple...)

So if we look at the necessary interpretations to bring the first two amendments online, so to speak, the First amendment is easy:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of publishing; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

A distinction I make here is in initially interpreting "the press" in the same manner as "speech"; that is as a faculty for communication wich is possessed by people. This shifts the emphasis of the original phrase from "freedom of the people to speak, and of media entities to publish" into the more rights-based "freedom of the people to speak and to publish", which may not be the dominant interpretation, but one which it must be hard to argue with. Certainly the founding fathers did not mean to allow only media entities the freedom to publish when many of those men were themselves publishing tracts to influence the nature of society. It is therefore no stretch to render "the press" as "publishing", meaning that it is both a right and an ability equal with speech, possessed by all.
This also goes some of the distance toward resolving arguments about whether any such things as "group rights" exist, or if the Bill of Rights applies (as I say) fundamentally only to individuals, whereas group rights may fairly be extended only from those individual rights.
With that in mind, let us look earlier in the First Amendment, to the famed Establishment Clause.
At issue is whether the word "establishment" is construed either as its n1 meaning (the first listed definition as a noun) which refers to the act of creating or sanctioning a thing, and is based upon the verb; or as its n2 meaning which is a thing that has been created, and is through and through a noun. A lesser issue is the meaning of "respecting", which we will take to mean regarding, rather than paying admiration to, a given thing.
n1: ...make no law creating or sanctioning a religion...
n2: ...make no law regarding an existing body of religion...
I say that the Amendment intends the first of these. Obviously, I must be in the majority, or else tax breaks for establishments of religion would be unconstitutional on their face.
It is therefore not true that the government can make no law with respect to religion. It is true that the government can neither promote nor restrict a particular religion. NOR, I say, may it promote or restrict religion as a whole.
Note that the Amendment does not protect merely the exercise of religion; it protects the free exercise of religion. That means one-hundred percent, and any law which would restrict the practitioners of a particular religion to only ninety-nine percent of that freedom is on its face unconstitutional. This is quite clear, and it is the law of the land. Note also that the right not to be offended by the freedoms of others does not exist.
It sould therefore be a simple matter to reverse the depredations of the ACLU upon the freedoms of Americans, yet instead conservatives are getting mugged again and again. Why?
Let us look at the Second Amendment for a case study in turning freedoms into tyranny.

(individual rights, militias... the big three often mis-interpreted, mis-quited, and mal-cited decisions...)

FULL CIRCLE: The first amendment concerns information. THe second concerns power, in particular, power over information. Crypto technology is the online equivalent of bearing arms. coding and codebreaking, encryption and decryption--these are the handguns and long arms of the internet, and they are as much your birthright as the Bill of Rights.

OTHER NOTES to GORE? Gatekeepers--There are no gatekeepers, because there are no gates. There are no gates because there is no fence. There is no fence because there is a First Amendment. There is still a First Amendment because there is a Second Amendment.


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