If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

Summary:Our personal communications technologies are as integral to our modern life as a sidearm was in Washington's day.

If you think there's a lot of juice in the Mac vs. Windows debates, the iOS vs. Android debates, the Linux vs. anything else debates, or even the Gmail vs. Hotmail debate (I stumbled onto that one inadvertently some time back), you're right.

But the amount of energy expended in those arguments doesn't hold a candle to the debates amongst Constitutional scholars over the interpretation of the Second Amendment.

Many scholars believe the intent of the Second Amendment is to provide citizens with the right to protect themselves against an unjust government, citing The Crown of the time as justification. An entirely different scholarly faction, recognizing that there wasn't much of a standing American army back in colonial times, contends that the Second Amendment existed so that citizens would always have weapons when called on to protect the State.

Still others claim that the Second Amendment, although part of the Bill of Rights, didn't grant a right to bear arms so much as it protected an already existing right to not be disarmed by the State.

This interpretation goes all the way back to the 1689 English Bill of Rights, passed after the Glorious Revolution tossed out the House of Stuart and brought in William from the Dutch House of Orange-Nassau. Before the Glorious Revolution, many English Protestants had been stripped of many of their rights, and many scholars argue that the British Bill of Rights merely returned those rights to the Protestant population.

Without a doubt, the British Bill of Rights influenced the drafting of the Second Amendment, as did the ongoing disagreements between the Federalists and the anti-Federalists.

Federalists like James Madison believed that the U.S. Government would be able to build a standing army, while anti-Federalists wanted some protection against the central government growing too large and influential. An armed populace would exist to both provide Federal defense and also a constant reminder that if the government got too uppity, at a worst-case, the citizenry would have the option of taking matters into their own hands.

Back then, Americans were of hardier and, presumably, more trustworthy stock. It was generally believed that the average American could safely be trusted to own and handle guns. Of course, back then, Americans couldn't go to Piggly-Wiggly, Publix, ShopRite, or Safeway for their food. They had to grow it themselves or hunt it down and cook it up. Guns were essentially the shopping carts of the time.

This history lesson is relevant because, in the context of our current times, it's important to realize that the Second Amendment was as much about not conferring to the State the right to disarm citizens as it was about conferring to citizens to the right bear arms.

Today's world

This, then, brings us to today's world, where we're facing the question of whether a government entity has to right to disable citizens' use of mobile phones or social networks.

Follow closely and you'll see that there actually is a link between the question of whether or not the State has the right to disarm citizens of their weapons and whether or not the State has to right to disarm citizens of their communications technology.

I contend, in fact, that the link is so tight that the issues are actually one and the same.

Let's first look at why some governments are concerned about personal communications technology like mobile phones, social networks, and the like. The potential for these technologies to disrupt the normal course of law and order is extreme.

Of course, not all government rule is just, and as we saw back in the days of our own founding fathers, there are times that human rights have been so violated by a sovereign regime that revolution becomes one of the only viable options for a populace.

We've seen technology used as a means of civil disruption quite a lot recently. We've seen Twitter messages come out of Iran a few years ago during the Iranian election. We've seen the social networking activity that resulted in the Mubarak regime in Egypt eventually shutting down the entire nation's access to the Internet. We've also seen the actions of WikiLeaks, Anonymous, and LulzSec.

Just this month, we watched the flash-mob protests in the United Kingdom and -- most recently -- the protest last week in the Bay Area that convinced BART to shut down mobile service inside their right-of-way.

Not all of these protests were legal or even advisable. Riots are generally never legal activities and they rarely result in any good for the participants or their causes.

While the Second Amendment guarantees the right to bear arms, it doesn't necessarily provide a get-out-of-jail-free pass when an entire mob shows up armed and angry.

This is the subtlety that marks a democracy.

You can carry pitchforks and raise torches, as long as you do so peacefully. And you can carry weapons to defend our lands against intruders. But you're expected to know when, as a citizen, your own use of force is appropriate and necessary -- and when it's illegal.

Back in the days of the American Revolution, the accoutrements of daily living were different than they are today. Few of us ride horses or hunt for our own food. Today, we carry mobile phones and use Facebook. We don't brandish flintlocks, we text on our iPhones.

But just as a weapon was an integral part of an 18th century American's necessary and appropriate garb, a mobile phone and social network access is an integral part of the 21st century citizen's ready-to-wear.

Clearly, I'm not saying that AK47s and iPhones are the same things -- but in times of unrest, they can both be used as tools of protest. In today's world, disabling citizens' access to mobile communications is just as much an act of "disarming" as was the taking of guns from the early American settlers.

We all know how difficult it is to amend the Constitution. That difficulty was part of the founders' design spec. And so it's highly unlikely that "the right to bear Facebook" will ever find its way into a Twenty-eighth Amendment.

That said, personal communications technology and the Internet are finding their way into protecting and empowering citizens. These technologies also being used to cause harm, to steal, and to disrupt the civil peace. They're used by "good guys" and "bad guys" and those just in it for the LOLZ.

In many ways, our personal communications technologies are as integral to our modern life as a sidearm was in Washington and Jefferson's day.

I have no doubt, therefore, that if personal communications technology existed back in the days of Adams and Franklin, such technologies would have been written into the Second Amendment.

Now that would have given Constitutional scholars even more to argue about!

See also:

Topics: Social Enterprise, Collaboration, Government, Government : US, Hardware, Mobility

About

In addition to hosting the ZDNet Government and ZDNet DIY-IT blogs, CBS Interactive's Distinguished Lecturer David Gewirtz is an author, U.S. policy advisor and computer scientist. He is featured in The History Channel special The President's Book of Secrets, is one of America's foremost cyber-security experts, and is a top expert on savi... Full Bio

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