Guns, the First Amendment, and the Bill of Rights

Guns, the First Amendment, and the Bill of Rights

Summary: There is no doubt that both these situations -- gun violence and cyber violence -- require some legislative attention. The world is changing and our laws need to change along with it.


Back when I had better eyes, I received the NRA Sharpshooter award, along with a few bars that indicated I accomplished a few additional tests of skill. I'm not telling you this to brag, but instead to establish my bona fides when it comes to the discussion of guns.

I am clearly not a gun hater.

After the horrible events last month in the Sandy Hook Elementary School, the gun debate has reignited. Gun control advocates claim that America has the most liberal gun possession policy in the world, while traditionalists are worried that Barack Obama himself will come down our chimneys and steal all our guns.

Some argue that if we had better gun control, the attack wouldn't have happened. Others argue if the shooter, Adam Lanza, had gotten better psychological help earlier on, the attack wouldn't have happened. The failings in these arguments are first that Lanza's mother had properly procured and registered guns, and second, Lanza had been receiving treatment, funded in part by his relatively well-off, divorced father.

Some even argue that if all the guns in America were taken away from civilians and reserved simply for the military and law enforcement, events like this wouldn't happen.

And yet, on the very same day, in the Chenpeng Village Primary School, in Wenshu Township in the county of Guangshan in Henan province, in southeastern China, a 36-year-old man named Min Yingjun attacked and injured 22 primary school children with a knife. This was not an isolated incident. A string of school-children stabbings in 2010 injured more than 50 and resulted in the death of 20 innocents.

China is arguably far more restrictive than America, and yet horror somehow found its way into daily life. Laws help provide guidance to sane people, but once individuals reach a certain level of hopelessness or a certain level of nuts, or are just plain evil (a term that's often far too encumbered by religious connotations), bad stuff happens.

And that brings me to the First Amendment. No, I didn't confuse the Second Amendment (the right to bear arms) with the First (freedom of speech). Instead, I want to relate the gun control discussion to another area where restrictions are being put into place that could have a fundamental impact on our freedoms: the digital realm.

Cybercrime (and its cousins, cyberwar, cyberterrorism, and cyberespionage) are on the rise, to a level that has reached "epidemic" proportions.

As a way to protect the populace (and take into account that most technology consumers are not engineers), vendors like Apple and Microsoft have begun implementing app stores that provide access to a wide range of apps that have each been subject to prior review and approval.

With the exception of Linux, Android, and Windows (pre-8), our computing world is being ever more locked down.

Of course, the lockdowns (think of it as byte control) aren't just for the benefit of consumers. I can't play ISOs of DVDs I've purchased on my un-rooted iPad because Apple has instituted a level of media DRM that protects content creators (movie studios) at the expense of content owners (those of us who each legitimately purchased hundrds or thousands of DVDs and Blu-ray disks).

Because of the enormous payola-like influence of media lobbyists, Congress can't seem to keep its hands off of dubious legislation like SOPA and PIPA. Worse, they've managed to conflate the limited issues of piracy and copyright protection with issues of cybercrime and cyberterrorism, and then they've flavored the whole thing with relatively extreme privacy intrusions like PATRIOT and the just renewed FISA.

And that brings me back to the First Amendment. As I've said before, we have a fine line to walk between protecting ourselves and our interests online, and protecting our freedoms.

Here in America, and certainly in other far more restrictive countries, lawmakers, plutocrats, and tyrants are attempting to clamp down on Internet-based digital communication. Some use sophistry to excuse their behavior, claiming that "the online" isn't really quite as legitimate as the old-school mainstream media and print, and therefore digital restrictions are fair game.

But there's a flaw to that thinking. It might not happen now, but it will certainly happen in the next 20-50 years: everything will be digital. Newspapers will stop being printed on dead trees. Books will all be digital and read on tablets. Movies will be distributed digitally. Television will come over the Internet as its primary distribution channel.

In other words, free speech, "freedom of speech, or of the press" will be digital. By restricting our digital freedom, our entire society's ability to communicate freely will be damped down and squelched.

We're all horrified by these school shootings and stabbings. Mass homicide is terrifying, difficult to understand, and almost impossible to prevent without restricting some freedoms, somewhere. And yet, while metal detectors and more intrusive gun laws may seem to provide some level of protection, as we've seen in China, rage and crazy always find a way.

Most Americans are far less horrified by cybercrime and cyberattack, but that's because it's less understandable and less visceral. It is, however, very serious. Although we've yet to attribute a death to a specific cyberattack, we're seeing penetrations of medical systems, transportation systems, and more. Worse, thousands of people every day are losing their life savings, the cost to business is enormous, and many of us IT people have found ourselves on the front lines of a cyber cold war between nations.

There is no doubt that both these situations -- gun violence and cyber violence -- require some legislative attention. The world is changing and our laws need to change along with it.

But we also need to be aware that laws generally only control the law-abiding. Laws won't stop someone like Adam Lanza from lashing out, although it might have limited the death count to only those he could reach in his own home. Laws also won't stop nation states like Iran and China from attacking our citizens, and rogue regimes like North Korea from attempting to use cybercrime as a profit center.

Do we need better gun laws? Sure. Do we need better cybersecurity laws? You bet. But that's not because we will solve all our problems by increasingly restricting our law abiding populace, it's because we need better laws, period. And, by "better," I don't mean more intrusive. I mean better thought out, better coded, better debugged.

Our legal system has been subject to the same sort of feature creep that our operating systems struggle under. The code of laws we live under is a spaghetti code of unmanageability and special interests.

If we, as a nation, are to take serious adult action about our serious adult problems, we're going to have to first have to address one of our more serious issues: how we govern and whether we can afford to continue to tolerate the childish behavior of our leaders.

Isn't it about time our politicians grew up and put American interests before Democratic interests or Republican interests, or the interests of the nearest lobbyist with an open checkbook?

Topics: Security, Government, Piracy, Privacy


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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  • Correct as usual.

    I would really like to see you address our relationship with the Constitution. I see what appear to be endless runs around the first, second, fourth, and fifth ammendments as well a a general trashing of commerce clause. Is this cheating on our supreme source of laws OK or do we change the Constitution. If it can't be ammended because of a lack of votes do we continue on as we do now or do we change our outlook somehow?
    • The problem is

      That while most Americans revere the Constitution, most of them don't have a clue what it actually says. Here's some fun Constitutional trivia most people don't know about. Congress can dissolve and organize any federal court except the Supreme Court at will. The Vice President can run the senate. Congress can set the number of Supreme Court justices. The Cinstitution does not grant courts the power to judge Constitutionality.
      • Marbury v. Madison

        Stirred up a hornet's nest that hasn't settled down more than 200 later, didn't it?
      • Actually...

        ...the U.S. Constitution explicitly gives the federal courts jurisdiction over constitutional issues (Article 3). The power to declare acts of Congress unconstitutional is not explicitly in the text, but can be reasonably inferred, as John Marshall did back in 1801 when Thomas Jefferson was President. And I recall reading that the U.S. Supreme Court had previously declared state laws to be unconstitutional.
        John L. Ries
        • No, it doesn't.

          Article 3 states that federal courts have jurisdiction over laws and cases written under the authority of the Constitution which involves foreign powers/dignitaries or disputes between states or citizens of one state with citizens or the government of another state.

          Article VI, paragraph 2 combined with Article III is the justification the supreme courts to claim it had the power to nullify any law it felt did not comport to the Constitution.
          • Here's the text

            "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..."

            Seems pretty plain to me.
            John L. Ries
          • I see the point.

            "arising under the constitution" - it is a pretty slippery bit of logic to presume this means "including issues of the meaning of the Constitution itself, and its application", as this would allow the alteration and extension of the Constitution, without going through the various due processes it requires for this.
          • And who else is supposed to arbitrate?

            State legislatures, as Calhoun proposed? I assure you there's absolutely no constitutional warrant for that one and it's highly likely that the official grounds for nullification will be absolutely specious and a President might have to send in troops, as Jackson almost did. If Congress has the final word, then the only restraints on its powers are the integrity of its members, and their willingness to buck the party line. But if the federal courts do it, then at least a single official interpretation can emerge, even, if sometimes happens, it's wrong. And it's not like elected politicians are less likely to be politically biased than professional judges are (and the latter are far more impervious to party discipline).

            The existing system of arbitrating constitutional disputes (which are inevitable) leaves much to be desired, but I do think the framers knew what they were doing.
            John L. Ries
    • Change

      Of course the Constitution is an outdated, obsolete, and embarrassment, and needs to be thrown out and start over. A truly FAIR and modern society has no room for induhvidual "rights", as the needs of the many outweigh the needs of the few. And obviously there aren't enough enlightened voters out there to support this common-sense philosophy, so there needs to be change brought about gradually and unbeknownst to the masses. Someday, hopefully in my lifetime, we will have real FAIRness and we can all share the wealth.
      • share the wealth

        what you earned, or what I earned?
      • Bad satire

        Not funny and not something many real people believe. Clearly you're going to have to actually read what real liberals write if you expect to parody them properly.
        John L. Ries
        • President Obama, when

          he was an Illinois senator went on a local talk radio show and declared the Constitution fundamentally flawed because it was a document of "negative liberties" meaning that it restrained government, rather than a document that empowered government to act. The parent is not that far off in his satire.
          • Really?

            Were you listening to that talk show? Have you heard a recording of the statement in context (maybe seen a transcript)? Or are you just repeating what others told you?

            You may be right, of course, but Conservatives frequently repeat what they hear in the echo chamber as if it was incontestable fact.
            John L. Ries
          • Yep, really

            Google "obama constitution negative liberties" and you'll find this recording of Obama. (
          • Thank you

            Woodrow Wilson wanted a parliamentary democracy, but that didn't disqualify him from holding public office.
            John L. Ries
          • You misss the the real point

            I think you are totally misinterpreting what President Obama was saying, but then again, based on the highy editted text on-screen which selects from what President Obama says to construct a totally ficitonal and twisted version of what he actuall says, that should not surprise me.

            A more rational explanation of the presidents commetens are as folows:

            "The President said the tragedy was that the Civil Rights movement didn't focus enough on political and grass roots activities (Kind of like the Tea Party) to push for more redistributive policies to redress the economic disparities caused by political dispossession of slavery and Jim Crow. He said the Warren Court was not as radical as some would suggest because they didn't change the Constitution, but he never said that was a tragedy or even a problem."
          • Negative Liberties!!!!

            You want to talk about negative liberties, study the history of the Texas Constitution, both of the Republic of Texas and the State of Texas. The whole document was written by men who feared government, and the State of Texas has suffered from it ever since.
      • wow

        you idea of 'common sense' and mine are very different. Maybe you could find someplace less embarrassing to live?
      • Only God can change the heart

        The writers of the Declaration of Independence and the Constitution understood something you apparently do not. Human rights do not come from any piece of paper written by men, but are given to all people by their Creator. All governments, without a single exception in all of history, can only and have only TAKEN God-given rights from people. When the God of creation and his laws are excluded from the public square, including schools, you get what happened in Newtown. What makes you think that any human law or even God's law can make people good? Only an individual's change of heart attitude towards God and fellow human beings, has the possibility of making people good.
        • Which one?

          To which "God of Creation" do you refer? Yahweh? Allah? Vishnu? The Flying Spaghetti Monster? It gets so confusing. I can never figure out which one's Universal Laws to follow.
          Marc Myers