A Right to Keep and Bear Cryptography?

The adoption of the individual right theory has broaden the reach of the Second Amendment (Heller and McDonald). By holding that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (Heller), stun guns were brought under the Second Amendment (2A) (Caetano).

This paper's purpose is to assess the argument for a 2A right to cryptography, and is structured as follows: (1) present how a 2A right to cryptography could be inferred from the text and purpose of the 2A, (2) discuss the key objections and counter arguments, and (3) mention advantages which could arise from this line of reasoning.

Heller stated that "The 18th-century meaning (of "Arms", O.B) is no different from the meaning today" and quoted the definition of arms from two 18th century dictionaries: "weapons of offence, or armour of defence", "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another". Heller explained that "keep (arms)" is to have weapons. "Bear (arms)" was interpreted as having a "meaning that refers to carrying for a particular purpose—confrontation." According to Heller, the natural meaning of the term is ‘wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’’’

Accordingly, cryptography, the argument follows, is a defensive instrument, used in and designed for, conflict with another (Rice, p.48, Russell, McGregor).

Advocating nowadays for a 2A protection for defensive arms seems unfounded. However, while armor of defense was considered an arm in 18th century dictionaries, slower technological progress in defensive arms in comparison with offensive arms, had resulted in a 2A jurisprudence solely focused on offensive arms. A bearable armor which can withstand the power of the bullet was only introduced in 1965 with the creation of Kevlar (Swank p.391).

Furthermore, 2A purposes, reconcilable with Heller, as self-defense and the insurrectionist theory, supports the conclusion that cryptography is an arm (Rice, p.51-72). The right to bear arms includes the right to defend yourself against all forms of unlawful violence, criminal, tyranny or foreign invaders (Lund, p.1373). Cryptography is an armor in the virtual world against criminals, tyranny and foreign nations.

First objection - The 2A does not protect purely defensive means (Rice, p.50). Although several courts have assumed without deciding that body armor is an arm (Rice, p.50), In Davis, the W.Virginia District Court decided to the contrary holding that "Heller did not hold that 'armour of defence' ... equates with 'Arms' under the Second Amendment". The Davis-Court reasoned that Heller's historical reference materials' function was limited to the collective versus individual issue, and that frequent use of the word "weapon" in the historical analysis supports a construction that "arms" are used forcibly and as passive means of self-defense. Absent guidance from upper courts, the Davis-Court was skeptical that the Framer's had any such thing in mind and remarked that at best this is a novel reach.

As explained above, the lack of guidance may be a consequence of slower technological development in the sphere of defensive arms, and not due to the implausibility of such interpretation. Moreover, tying the defensive layer to an offensive layer, like a "right to bear Denial of Service attacks", enables to overcome this objection, but at the cost of creating additional problems, including the "dangerous and unusual" limitation.

Second objection - Extending the concept of "arms" to include intangible things (Rice, p.49). A counter argument that was offered was that "in the digital age, 'arms' can be no more limited to analog technology than can ... 'speech' ... or 'searches' ..." (Rice, p.49-50). Yet, this argument is simplistic and thus raises the following concerns: first, analogizing "arms" to digital age concepts is susceptible to criticism regarding the adequacy of the analogy (Ganais, p.28-40); second, unlike the First Amendment protection afforded to encryption, because encryption software is code and code is speech (Bernstein), the 2A requires a further leap in the form of "activating" the code-speech, thus complicating the theoretical argument.

The intangibility objection faces the following counter-arguments: first, there is no escape from tackling the hard questions the digital age brings; second, analogizing encryption to a "bearable virtual armor" which protects against both criminals and tyranny is powerful and relatively straightforward; third, as cyborgization becomes widespread the analogy grows stronger because the "virtual shield" directly protects life and limb and not just property. Even today, cyber-attacks to turn off pacemakers and crash cars are far from science fiction.

Moreover, if the in Fourth Amendment context, courts would view cryptography a safe, rather than secret language (Raviv, p.612), it could strengthen the armor analogy.

Beyond providing an additional line of constitutional defense and a powerful analogy, A 2A approach to cryptography better highlights the right to buy/sell the activated-code-arm (armor) (Russell), and thus extends beyond protecting the right to express and be exposed to the underlying code-speech. Being able to purchase protected arms is considered core to the 2A, and under lower courts' standard of review, devised after Heller, burdening core 2A conduct should withstand strict scrutiny (Russell; Rice, p.75, 83). "Backdoor" legislation could be considered as burdening core 2A conduct because: (1) it imposes a ban on an entire class of arms, i.e. backdoorless cryptography (Rice p.83) and (2) it would harm the arm-(armor)-cryptography effectiveness to provide self-defense in the home (Rice, p.86).

Applying the constitutional framework to the digital age is a difficult task, but marching the 2A to the digital world has merits and cryptography seems a well suited candidate for that.