IEEE Technology and Society Magazine - June 2019 - 72

Broader enhancement of human
ability with digital technology
presents an opportunity for personal
attack by cyber weapons.

Amendment to the U.S. Constitution provides individuals
and corporations with equal protection regarding the
right to own advanced cyber weapons. In most cases,
public debate over the Second Amendment is ideological, but there also is legal doctrine given by the U.S.
Supreme Court in the verdict of District of Columbia v.
Heller that culminates the aggregation of precedent covering more than two centuries.
The Second Amendment to the U.S. Constitution, ratified 1791, was not only a product of the American Revolution and recognition of the state militias' contribution to
the war effort, but also was an idea nurtured by early influencers of the Founding Fathers [1], [2]. A hundred years
before the American Revolution, Hobbes declared that the
right to bear arms was a response to the lingering chaos
of human conflict and without access to weapons, society
would fall into a state of entropy. Montesquieu considered
armed citizens a counter-balance to tyranny and the
abuse of power. During the Virginia Convention in June
1776, when Jefferson and Mason worked to word the new
constitution for the State of Virginia, they wrote that "no
freeman should be debarred the use of arms." This
phrase did not appear in the final bill [3].
The Second Amendment to the U.S. Constitution
reads as follows: "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." The
authors of the Bill of Rights and Second Amendment
could have listed the weapons of their era, but instead
used the general term, arms. Restrictions on the weapons that citizens have the right to bear have been implemented over time through litigation and guidance from
the U.S. Supreme Court and precedents put forth
through the legal system.

Dangerous and Unusual Weapons
In the most recent legal challenge to Second Amendment
doctrine, addressed by the U.S. Supreme Court, a central
legal question was what types of weapons are protected
by the Second Amendment. If a weapon is "dangerous
and unusual" under the U.S. Supreme Court's interpretation and verdict, then ownership of such a weapon is not
protected by the Second Amendment to the U.S.

Constitution. If a weapon is deemed "dangerous and
unusual," then the government is not hindered by the
Second Amendment to forbid ownership and usage.
In their District of Columbia v. Heller verdict, the U.S.
Supreme Court majority wrote [4]:
"We also recognize another important limitation
on the right to keep and carry arms. Miller said,
as we have explained, that the sorts of weapons
protected were those 'in common use at the
time.' 307 U. S., at 179. We think that limitation is
fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual
weapons." See 4 Blackstone 148-149 (1769); 3 B.
Wilson, Works of the Honourable James Wilson
79 (1804); J. Dunlap, The New-York Justice 8
(1815); C. Humphreys, A Compendium of the
Common Law in Force in Kentucky 482 (1822); 1
W. Russell, A Treatise on Crimes and Indictable
Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An
Abridgment of the Criminal Law of the United
States 64 (1847); F. Wharton, A Treatise on the
Criminal Law of the United States 726 (1852).
See also State v. Langford, 10 N. C. 381, 383-
384 (1824); O'Neill v. State, 16Ala. 65, 67 (1849);
English v. State, 35Tex. 473, 476 (1871); State v.
Lanier, 71 N. C. 288, 289 (1874)."
The U.S. Supreme Court majority refer to cases that
define unusual and dangerous weapons, and also to
behaviors that could endanger others. In State v. Lanier
(1874), a drunk man rides at a canter pace at midnight
through a courthouse yard, which is considered an
endangerment. The verdict of the North Carolina
Supreme Court rejected the prosecution's premise. The
North Carolina Supreme Court based its decision on the
conditions surrounding the event: "We conceive that the
riding through a courthouse or a street at 12 o'clock at
night, when no one is present, is a very different thing
from riding through at 12 o'clock in the day, when the
courthouse or street is full of people." The fact that the
man rode at a canter pace through town at midnight
was not a public endangerment and did not break the
peace. In English v. State, protected arms are defined
as the arms of a militia, which are military-grade arms.

Dangerous Cyberweapons
The U.S. Supreme Court, with supporting legal precedence, has declared that only weapons that are not
"dangerous and unusual" are permissible.
The next question is what would constitute a dangerous and unusual cyber weapon that would preclude
ownership - including placement on computers - by

IEEE TECHNOLOGY AND SOCIETY MAGAZINE

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JUNE 2019

IEEE Technology and Society Magazine - June 2019

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