The 2nd Amendment, Edward Snowden, and the Right To Bear Information

This is long. A synopsis will be put near the end, which you can jump to by clicking here. I recommend reading the piece, though, as much of what is written here requires some justification. 

A Brief History of the Second Amendment

On December 26, 1787—about six months before the Constitution was ratified—Alexander Hamilton published Federalist Papers Number 28 under the pseudonym Publius. He'd been essaying for a while under this name, addressing a number of issues that arise with the formation of a new republic separate from Britain, and arrived at a conclusion that, especially in the minds of the newly separated people, he deemed crucial. 

We have to remember that the British Crown and the Colonies had both been pretty big babies, taking just about every shot at each other they could muster. The Colonies were whining about what some might consider an exaggerated oppression, and the Crown was whining that their Colonies weren't listening to them. Things were exacerbated on both sides and occasionally resulted in spots of violence. On September 26, 1768, a Colonialist whistleblower calling himself "A.B.C." warned the colonies through the Boston Gazette that the British Governor of the colonies...

"[h]as three Things in Command from the Ministry, more grievous to the People than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed. 2d. The Province to be governed by Martial Law. And 3d, that a Number of Gentlemen who have exerted themselves in the Cause of their Country, are to be seized and sent to Great-Britain." (Halbrook 2)

This warning was prophetic because, in 1774-5, the Crown imposed martial law and sought to disarm the citizens of the Colonies. 

Particularly because of their spotty history with the British Crown, the framers of the Constitution understood that there may come a time when the people under their new unified government would revolt. They were themselves revolters after all. They knew there may be others like them down the line. In Number 28, he addressed this inevitability. 

He also addressed something else: he knew that, at some point, the Federal Government may begin overstepping its bounds—another thing history had dictated was possible. 

When Hamilton wrote Federalist Paper 28, he had these hiccups in mind. He was bent on forming a new nation (as the Declaration of Independence was already signed and in the bag) but knew that there may come a day when this new nation would find itself in a similar situation as they had been just ten or so years previous. He understood that the entire purpose of the United States was to have a place where the colonists were treated better than they were in Britain. 

So the Second Amendment came out of a series of State Conventions leading up to the drafting of the Bill of Rights. In the Pennsylvania state convention, a few people argued that the people should have a right to bear arms for basic defense, hunting, perhaps the occasional insurrection or revolt. When the Massachusetts convention met, Samuel Adams thought that it was fine if citizens were armed, so long as they were "peaceable citizens." New Hampshire, though, was the first state convention to propose a Bill of Rights. It wanted that "Congress shall never disarm any citizen" unless it was an extreme circumstance. 

And so the Bill of Rights was ratified on December 15, 1791, guaranteeing future generations of citizens of the United States the following: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Defense In Kind

The common legal understanding of this amendment's language is fairly straightforward.

  1. An armed populace constitutes a militia.
  2. Militias remain proficient at their skills by practice and drilling.
  3. In order to practice and drill, they must have unrestricted access to firearms.

While we do not have regular militia drills, the actual majority of gun owners—particularly lawful gun owners—have never, will never, and would never commit a violent crime with them. They lock their guns in safes, they practice at gun ranges, they exercise precaution when cleaning and discharging them, and they teach their children about how to be around weapons safely to avoid catastrophic accidents. For all intents, the "militia" of armed U.S. citizens is well-regulated, as evidenced by both the rarity of lawful weapon owners' infractions and accidents, as well as the reality of who commits violent crimes with firearms. Few of the perpetrators, if any, would be considered members of this "well-regulated militia" of lawful, armed U.S. citizens.

So we see that the ratification of the Bill of Rights set the citizens and the government on equal footing. The government had a right to "raise and support armies" (U.S. Constitution 1:8:12) and the citizens had a right to be armed. What I think is important to remember is that, upon ratification, they were armed with the same technology. Both a government-raised army and a militia of statesmen would be carrying muskets and powder bags, riding a horse, and sending and receiving correspondence by telegram. 

This is the reality of their situation—but the Bill of Rights says nothing about being armed to the same extent as the government. It's not even implied. Perhaps it was a bit of sneakery on behalf of the framers; perhaps it was an oversight or an underestimation of the technological advances that were to come. Whatever the case, the same cannot be said for today's situation. The armed populace of the United States does not have legal access to the same kinds of things a Government-raised army would. A citizen cannot, for example, own and operate a military drone or a nuclear bomb. 

But this is a minor quibble, in all truth. I would not advocate for the private ownership of military drones or for Neighborhood Watch-owned nukes. After all, at least as early as with the Manhattan Project (though most definitely earlier than that), the teeter-totter of an armed federal government and armed citizens was so drastically tipped out of balance that the teeter totter broke and ceased even being considered a valid analogy anymore. 

Then, in 2001, another teeter-totter—one most of us didn't even know existed—was likewise ground up and made into mulch. 

 

Birthed from War

On September 11, 2001, I was with my father in the waiting room of a hospital, getting a new cast for a finger I'd broken at the end of August. I remember somebody wheeling a television into the waiting room, someone saying, "Jesus Christ," and my dad saying, "Jesus didn't do this." While the first tower was still smoking, before it collapsed, the news reporters told us who did—"Osama bin Laden." 

We were later watching the news in our living room, our new puppy lying on a blanket on the otherwise forbidden carpet. These were extenuating circumstances, after all. The President was addressing the nation using words that would unite most of the nation for the next few months. He announced an official "War on Terror." 

This will not be a space for Truther theories, but there is something indisputable that changed that day, particularly following this announcement of a war on the idea of Terror. When a fight is declared on something that is faceless, faceless measures will be employed. Furthermore, without tipping more wildly into a foilhat examination of the events of that day than I need to for the sake of this post, a war on a faceless evil is, in no uncertain terms, an unending one. 

Remember that this war was won in 2003 by Bush. It was won again in 2009 by Obama. It was won again in 2013. "Terror," it seems, is either a reverse Phoenix—extinguished in a pit of ash, birthing anew in a burst of flame and destruction and death—or a cover for something else, more sinister. 

Stretching out of the smoking remains of Bush's ground assault on Terror, itself, came something titled the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001." It was shortened to an Acronym of its full title for ease of pronunciation: the USA PATRIOT Act.  

The PATRIOT Act allowed the following, just for example:

  • Infinite detention without a trial for non-US citizens
    • Per Section 412, anyone detained does not have to be released if it is found that:
      • They have ties to Terrorism
      • They are illegally entering the country and their home country does not want them back—essentially a life sentence for something that could be as innocent as overstaying a work visa.
      • Provisions were made in Zadvydas v Davis (2001) for terrorism-free immigrants, seeing as how holding them indefinitely is massively unconstitutional.
    • The level of proof required for such detainees is essentially the level of suspicion required for a stop-and-frisk on the street. 
  • "Sneak-and-Peek" warrants
    • Per Section 213, law enforcement was allowed to conduct what is known as a delayed-notification warrant, which allows them to conduct a search in secret, so long as they informed the person they were searching later. 
      • According to an article written in 2013, there had been 11,129 delayed-notification search warrants requested that year. 51 of them were for terrorism investigations. 9,401 were for narcotics.
      • ABC News reported in 2007 that a District Judge named Ann Aiken challenged this, as it clearly violates citizens' Fourth Amendment rights. She wrote that it "allows the government to obtain surveillance orders under FISA even if the government's primary purpose is to gather evidence of domestic criminal activity." 
      • The government appealed Aiken's decision. Vice News reported that "The Justice Department claims that delayed-notification warrants are 'a vital aspect of our strategy of prevention—detecting and incapacitating terrorists before they are able to strike.' It makes no mention of using the warrants in narcotics cases."  

  • Bulk collection of United States Citizens' data.
    • Per Section 215, the mass monitoring and storage of data was allowed. This includes: phone calls, text messages, emails, etc. 
      • Bulk spying on US citizens is, of course, illegal (another violation of the 4th Amendment). Most of the justification for the section of the act resembled "This is just provisionary; we're not saying that we're DOING it now."
      • In the mid-2000s, whistleblowers came forward saying quite the contrary. One document detailed how AT&T installed a fiber-optic splitter at 611 Folsom Street in San Fransisco to copy emails, web browsing data, and other Internet traffic. They then sent that data to the NSA. 
      • This provision was set to be re-voted upon in 2015, at which time a New York court of appeals deemed it wholly illegal. However, according to a New York Times article, the ruling "did not come with any injunction ordering the program to cease, and it is not clear that anything else will happen in the judicial system before Congress has to make a decision about the expiring law." 

I'm sure you get the drift. What is even more fascinating, more than the 342 pages of densely-worded legal jargon (all of which you can read here if you so desire), was how it was passed. It was presented to the House of Representatives on October 23, 2001 in exactly the format you see at the link in the parenthesis above. It was passed on October 24, 2001 by a vote of 357-66. It was passed on October 25, 2001 by a vote of 99-1 (Russ Feingold of Wisconsin was the only Senator to vote against it). It was signed by the President on October 26, 2001. Nobody protested so much as a clause. It's questionable how many even read it in that short amount of time. 

Notice what these (and numerous other provisions for that matter) indicate: The Federal Government is granted unrestricted access to the communications of the citizens of its country. I will let you attempt to set up a wiretap and get away with it in court to see if the same rights are afforded to the citizens.

 

Anti-hero

On June 5, 2013, after having had more than enough, Edward Snowden—former CIA employee and government contractor—announced through British newspaper The Guardian that he was going to leak NSA (whose power was increased by a power of which I am not entirely sure by the PATRIOT act) documents that detailed the enormity of the US Government's trespasses against its own people. Over the next few hours and days, sections of his disclosures would be made public, according to their categories. 

You can see an interview with Ed here. "NSA and the intelligence community, in general, is focused on getting information wherever it can, by any means possible," he said. "Originally, we saw that focus very narrowly tailored as foreign intelligence gathered overseas." He continued, "Now, increasingly, we see that it is happening domestically. To do that, the NSA specifically targets the communications of everyone. It ingests them by default." 

"Any analyst at any time can target anyone," the former systems analyst said. "I, sitting at my desk, had the authority to wiretap anyone from you or your accountant to a federal Judge, to the President."  

Snowden was charged with violating the Espionage Act of 1917 and theft of government property. To avoid sentencing, he fled to Moscow, where he was granted a one-year asylum, later extended to three years. 

Snowden is a figure famous for having public opinion split directly down the middle. Some say he's a traitor; some say he's a patriot. 

I say we're missing the point entirely. 

A TL;DR and the Third Act

First, a summary of how we got here.

Once upon a time, a group of settlers from England colonized what would become the United States. They had a rocky history with their motherland and started getting upset at the way that their government was treating them. Both sides may have been a little bit babyish, but still they wrote out a list of grievances, fought a war, and severed the connection.

They needed a document to establish how the country would be run. They had ideas about how it should have been done, of course, but they wouldn't be alive forever. They wanted to make sure that those who came after them didn't screw up everything they'd fought for. 

The Constitution was written with a twofold understanding: The government needed to be able to be protected from revolts, and the people needed to be protected from the government. Too much power to the people could mean mutiny; too much power from the government could mean the same situation they'd just escaped. They wrote in a provision that citizens of the country had every legal right to arm themselves, so that they were protect both individually and as a society. The people of the United States became, as it were, a militia. 

The technology of the militia was quickly overtaken by the technology of the government. Laws were passed by the government to prohibit the militia from having the same destructive capability they did. Those in power quickly became the most powerful force on the planet; those they had authority over began having increasingly little say in the way they ran things. 

Somebody attacked the most powerful country in the world. Who it was, it doesn't matter, because the technology developed by the government was soon turned around and pointed at the citizens of the country it was made to protect. Many of the rights afforded us by the Constitution were deliberately stepped on in the name of protecting us from capital-t-Terror. The weapons of war shifted from muskets and powder bags to information

When someone attempted to level the playing field—to arm the citizens with the same kinds of weapons the government had—he was branded a traitor to the Constitution and he fled to avoid what the Government said would be a trial, but what he (and everyone else for that matter) knew was likely assassination. 

Let the courts handle Snowden. It is unquestioned that what he did is illegal and that it violated the trust that he had been hired to uphold. Whether his guilt outweighs what he says was motivated by love for his country and the liberty it promises is, I believe, a secondary issue; what we must deal with is what Snowden represents.

The third act is well underway; the prestige has begun. The play began with a separation from tyranny and a Constitution that was written to ensure neither the government nor the citizens had undue power over the other.

The second act was complex, but important. It featured a drastic swing towards an imbalance of the power set up by that very document, jumbled up in a mountain of legal jargon, jumbled terms, unwinnable wars on unseeable ideas, and secrecy. We saw the weapons of war becoming not guns and bombs but intelligence and information. 

The third act reveals the antihero, brings the first two acts together to clash fantastically, and reveals that the winding conflicts displayed through a power struggle between an idealistic balance between two formidable forces—the power of a centralized government and the power of a nationwide militia initially equipped with the tools necessary to protect themselves from it—must meet head-on. 

 

Conclusion

The weapons of war have changed, which is made evident by the thing the powerful are so quick to protect. Whoever holds the guns makes the rules. Just as the British governor of the Colonies once stripped those capable of resisting him of their means of resistance, so we find ourselves in a similar situation today. We are either given just enough to suckle on and satiate our growling stomachs for but a moment or we are swamped with more than individual people are capable of digesting. 

Both are problematic. 

On the one hand, we're given enough to fill our bellies temporarily, like, say, the 9/11 Commission Report. But we are not given the full story, like what is contained in the 28 classified pages of it (CIA Director John Brennan said about these pages: 

 “I think some people may seize upon that uncorroborated, unvetted information that was in there that was basically just a collation of this information that came out of FBI files, and to point to Saudi involvement, which I think would be very, very inaccurate.”

You can read in the interview here how Brennan's argument for not disclosing the pages is that the American people are incapable of appropriately handling it. 

On the other hand, we've been given more information than we could possibly know what to do with. We are saturated with information from hundreds of news sources throughout the world, thousands of trending topics on Social Media, and curated content specially catered to the demands of the times from newspapers, journals, and those who wade through the sea of incoming data to report what they think we need to hear. 

Either way you slice it, we are a militia that is ill-regulated and ill-equipped to use the tools available to us in order to appropriately respond to the waking Cthulu underneath the sea of politics. We are easily distracted, quick to divide, and generally disinterested in what is happening under our noses. 

At some level, I understand that there are things civilians do not need to know. It stands, however, that what we do know is under attack. Those disseminating the information, even if it means they've snuck into the armory and stolen it, are branded as traitors (rightly or wrongly), yet we leave the weapons they've stolen lying on the ground. 

You, as a citizen of the United States, have been granted by the Constitution the right to bear arms in order to maintain a well-regulated militia. You, as a citizen of the United States, have been given freedom to disseminate information, gather in public, speak your mind, and report on what you find. Therefore it stands that you, as a citizen of the United States, have an inherent right to bear information. 

May the militia of information-bearers be constantly sharpened, honed, and equipped to deal with it faithfully so that at any time we are capable of using that which we have drilled to defend ourselves from threats that rise against us. It is more important than ever, in the most politically volatile climate in the history of our nation (except for, perhaps, its conception), we are on guard and responsible with whatever we scrap together. 

Be alert and watchful; absorb and be wise; gather with confidence and guard with vigilance; know that perhaps, in order to form a more perfect union, we have the strength of history on our side. Our existence as a nation is proof that, when any form of Government becomes destructive of the rights you have been guaranteed, it may be up to us to alter or abolish it.

You may now return to the regularly scheduled programming of the Kardashians. 

Hamilton Barber

The subject of this page is an introverted writer/musician/lunatic from Chattanooga, TN who dabbles in lexical dexterity, unorthodox thoughts on prosperity, and being overwhelmingly undeserving of the privilege of waking up every day. He hopes that everybody who reads these words takes them to heart and leaps higher than he ever could. He reads, thinks, and speaks too much; he listens, works, and loves too little; and he says “I” entirely too often. The words on these pages are not his: they are the words that were given to him.