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

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.

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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

David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

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79 comments
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  • I think you missed the mark.

    Not even close on the target.

    At the time, they had letters and other means of communications and we don't find:

    "The right to write letters."

    What we have is the right to peaceful assembly:

    <i>"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."</i>

    It is a poor idea to try and create specifics of the above and create unique and special amendments to satisfy current requests.

    The US Constitution: 4400 words.
    EU Constitution: 100,000+ words and > 800 pages.

    Your line of thought would have created another unreadable mess. The "framers" knew what they were doing and specifically left out the mindset you proposed.
    Bruizer
    • Spot on. The blog author suffers from the mindset

      that too many Americans today have: That the constitution grants rights. It does not. It restrains government. The Founding Father considered rights as inalienable. In other words, they exist independently of any government. The role of the Constitution is to grant the government certain limited powers and to make sure it is restrained in all the areas that men in power would seek to take it. Unfortunately, instead of loving liberty, too many Americans today love subsidy and so they have whored their rights for a handout. Nearly everything the Federal government does today is outside of its constitutional authority. I think the Founding Fathers would be much more horrified by Social Security, Medicare, and National Health Care than they would about whether or not Cell Phones were explicitly mentioned.
      baggins_z
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @baggins_z
        Most hypocritical document ever written, peppered with words like "liberty" and "all men were created equal".

        Yet, human beings were bought and sold like cattle and the authors of these documents, "the founding fathers" were themselves slave owners...
        prof123
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @baggins_z Right! Contrary to the non-lawyer author's theory, the Framers of the Constitution and those who got the Bill of Rights added to it did not regard them as granting or creating rights, but as guaranteeing enumerated and unenumerated unalienable rights with which, in the then-familiar language of the Declaration of Independence, individuals were "endowed by their Creator," and which pre-existed the Constitution under "the laws of nature and of nature's God." How could the federal government "grant" a fundamental and unalienable right against itself that it could not take back?" Thus, furthermore, the argument that the Tenth Amendment is "merely declaratory" overlooks the fact that so were the others, starting with the First Amendment. The Ninth Amendment explicitly carries forward and recognizes the existence of "unenumerated" fundamental, Constitutional, i.e. Constitutionally guaranteed--not granted--individual rights. You can find references to this generally accepted view by the Framers and Founders, including both the Federalists and the Anti-Federalists, in the Federalist Papers and other contemporary writings.

        Liberal Harvard Law Professor of Constitutional Law wrote during the debate over the Second Amendment at the time of the Heller case that, having originally been of a different opinion, his research convinced him that the Framers intended and the Founders ratified an individual right to keep and bear arms guaranteed thereby.
        The right to use a cell phone or a computer, or a car, is not within any stretch of Second, but fall rather clearly within the protection of the First, Ninth, and Tenth, Amendments.
        Now just as freedom of speech does not include the freedom to falsely shout "fire!" in a crowded theater, it does reach a right to use, but not a guarantee that you be provided with, a cell phone for quintessential First Amendment political purposes, but no more, and arguably les, right to incite riot, or violate the privacy rights of BART customers over a fight not with them but with BART, than you have with your unaided voice or a snail mail letter, etc.
        We don't need or want to rewrite the Constitution and Bill of Rights to cover every new technology. The Texas Constitution is awash in amendments and our courts usually say our state bill of rights does nothing but cover the same ground as the federal bill of rights, though the authors consciously used different and broader words. Wrong. It was intended to offer broader guarantees.

        Now organizing a flash mob and riot, or some "rapper" effectively shutting down the police emergency line as a publicity stunt, were never intended to be, and are not, protected by the Constitution or its Bill of Rights.
        Transaction7
    • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

      2A gives the right to firearms to a well regulated militia to protect the free state. Activist judges have ruled differently.The founders did not forsee that 30,000 Americans would be killed by gun use yearly.
      anonymous
      • The Constitution confers no rights at all

        @bobbryant
        It only recognizes and guarantees them. If they're really rights, then we have them, no matter where we live, whether the law recognizes them or not.
        John L. Ries
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @bobbryant <br><br>It *acknowledges* the right of the *people* to keep and bear arms. The citizens of the US are the militia. First phrase is for explanation, not a limitation.<br><br>Even liberal scholars admit that the language mean individual rights. That is why they prefer an amendment to invalidate the second.

        The document (which Obama has complained about) is more a list of negative rights, meaning that it sets limits on what the government can and can't do. In this light, the government does not have the right to confiscate firearms nor the right to prevent the people from acquiring them.
        mjollnir
    • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

      @Bruizer

      Not quite true. Communications as they existed were explicitly covered. This was pre-post office. Letter writers were fringe. The twitter of the time were the federalist columns in the newspaper and Patrick Henry's pamphlets.
      tkejlboom
    • Exactly right!

      The framers did not need to think of different ways of communication before deciding on freedom of speech. There were different ways of expressing oneself centuries ago, and the framers were quite informed about all of them.

      So, even if cell-phone technology was available back then, the all-encompassing wording for "freedom of expression" or "freedom of speech" would have been enough to cover even the latest or newest technology which one could use to transmit their speech or expression. Freedom of the press was included, and the press was a method for broadcasting that speech or expression.

      So, the blogger might have a minor point in today's world, but, the way the constitution and our bill of rights were worded, the framers chose their words carefully. The constitution is still as relevant today as it was during the founding father's time.
      adornoe
      • Freedom of Expression

        @adornoe@... <br>...isn't mentioned in the constitution. A right to it was imputed by 20th century judicial decisions, some of which I think are wrong (are you surprised?). I don't think a reasonable case can be made that the US founding fathers recognized anything of the sort.<br><br>And even if one does recognize freedom of expression as a right, it doesn't follow that one has the right to sell entertainment generally considered to be obscene (you can express yourself in private with a few well chosen friends, as some Victorians did).<br><br>Reply to the reply:<br><br>I'm shocked to see you claim that the Constitutionis the framework from which all other "rights" would be worked out (hardly a conservative position). See my response to Common+Sense (way down below) for my ideas about rights. Suffice it to say, rights are not derived from laws or constitutions, rather, just laws and constitutions guarantee the rights of the people (which is how I read the Declaration of Independence).<br><br>And it's usually liberals nowadays who think the courts have the authority to amend the constitution in line with their own ideas about justice.<br><br>Edit:<br><br>I probably overstated my position a bit. Really old fashioned conservatives like Sir Robert Filmer argued for the divine right of kings and unconditional submission to authority, but that certainly wasn't the position of the US founding fathers. If it had been, there wouldn't have been much justification for rebellion (a lawsuit against the Board of Trade for breach of contract would have been more appropriate).<br><br>And it is usually conservatives who argue that courts take too many liberties in how they interpret the Constitution (particularly the Bill of Rights and Article I).
        John L. Ries
      • John L. Ries: The constitution was not the end of the &quot;definitions&quot; of our

        rights.

        That constitution set the stage for the further definitions, or amendments, which would become our rights. The constitution was merely the framework for the country, and from which all other "rights" would be worked out.

        Although not in the constitution, it was an implied right, which would be codified during the constitutional conventions.
        adornoe
    • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

      @Bruizer

      Actually, there is a constitutional right to protection from unreasonable search and seizure. it is worded to include correspondence. So, it is actually covered in the Constitution. the problem today is that some Judges think that only applies to paper correspondence, and not to electronic correspondence. So, he's not as far off as he thinks.
      YetAnotherBob
      • That would only apply to content

        @YetAnotherBob <br>Not the service itself. Mind you, I think there is a right to communicate electronically without interference from the authorities (restrictions only acceptable during emergencies or as punishment for a crime), but it's not explicitly codified in the US constitution, though it's probably implicit in the guarantee of free speech.
        John L. Ries
  • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

    It is ironic that an article that discussed the second amendment is sponsored by a re-elect Obama ad.

    Obama completely detests private firearms ownership by American citizens.
    mjollnir
    • And yet

      @mjollnir
      Firearm laws have been relaxed nation wide during the Obama administration. And his administration has yet to push any regulation of firearms.
      Anything but your mindless bigotry to back that up?
      mdemuth
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @mdemuth

        1) His snotty remarks on the campaign trail about clinging to guns and religion.
        2) On record, as a state senator, that there was no right to self defense.
        3) His appointment of two anti-gun Supreme court justices.

        Bigotry? Epic fail. When the term bigotry is trotted out, you know the speaker/writer is just another commie who can't make a logical argument and falls back on the communist dialectic.
        mjollnir
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @mdemuth - But you have to admit that his actions have driven-up the cost of ammo to unprecedented levels...
        Gr8Music
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        Anyone who doesnt like Obama is a biggot, eh? Sounds like youre just as guilty of irresponsibly stereotyping as the people youre afraid of.

        Love,
        A Mulatto whos black came from slaves not slave traders
        KenoshaSysAdmin
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @mdemuth <br>Specify, please. Exactly which firearms laws have been "relaxed?"<br><br>Obama has yet to *successfully* push any substantial new infringements on the 2nd Amendment. In addition to mjollnir's noting of his SCOTUS appointments, we have his ongoing support for the UN Small Arms treaty which would trample the US Constitution. And the 800-pound gorilla in the room, the expanding cesspool of the so-called Operation Fast and Furious, which is coming into ever-sharper focus as a backdoor plot to justify eradicating Americans' rights under the pretext of the US being the cause of all the Mexican drug violence. As BATF top management, Eric Holder, and Obama himself scurry for cover like the proverbial cockroach when the lights come on, F&F begins to look more and more like it might become Obama's Watergate. May it be so, and may the outcome be the same.<br><br>And lest we overlook the actual content of the article, an interesting line of thought to say the least, Mr. Gewirtz.
        mmoran@...
      • RE: If cell phones existed back in the Founding Fathers' time, they would have been included in the Second Amendment

        @mdemuth

        mmoran has an excellent point about the Small Arms treaty. We also need to be wary of the UN Convention on the Rights of the Child. This also calls for the elimination of firearms ownership.
        mjollnir