Thread

1. jsrozner · 1790181848 · focus · HN ↗

   The best solution is a constitutional amendment that actually enshrines a right to privacy. Among other things, the retention, aggregation, correlation of any personal data should be illegal (including for commercial purposes). (Storage on behalf of users in encrypted form could be made OK. Could also be refined to support retention of data of the medical, legal, etc kind with the attendant non-admissibility protections.)

   This would fix this issue, it would destroy the surveillance models of Google/Facebook, and it would fix the Flock issue, etc. It would also fix the Roe v Wade issue: women would be able to get abortions in the first couple months of pregnancy without the possibility of harassment, since law enforcement would have no capacity to detect pregnancy until then.

   Also, tech won&#x27;t save us had a podcast on the dynamic pricing topic: <a href="https:&#x2F;&#x2F;podcasts.apple.com&#x2F;us&#x2F;podcast&#x2F;how-data-is-changing-air-travel-w-amanda-mull&#x2F;id1507621076?i=1000680112948" rel="nofollow">https:&#x2F;&#x2F;podcasts.apple.com&#x2F;us&#x2F;podcast&#x2F;how-data-is-changing-a...

   1. roamerz · 1790183836 · focus · HN ↗

      Cool thought but until violating the said constitution actually has enforceable consequences it’s not more than a paper tiger.

      Take for instance the 2nd amendment. It is constantly under siege by government officials, both elected and appointed, as well as an activist judicial. Thankfully the SCOTUS has been somewhat successful in parlaying these incursions but someday the perpetrators will succeed, and I think mainly because there are no consequences for trying.

      Just an example and JMHO.

      1. grubbydiff · 1790184449 · focus · HN ↗

         &gt; The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the work fraud, on the American people by special interest groups that I have seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies—the militia—would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

         Sounds like you have been a victim of fraud. At least according to a former Chief Justice of the US Supreme Court. To prevent more people falling prey to fraudsters, Justice Stevens recommends that this amendment should be repealed - <a href="https:&#x2F;&#x2F;www.nytimes.com&#x2F;2018&#x2F;03&#x2F;27&#x2F;opinion&#x2F;john-paul-stevens-repeal-second-amendment.html" rel="nofollow">https:&#x2F;&#x2F;www.nytimes.com&#x2F;2018&#x2F;03&#x2F;27&#x2F;opinion&#x2F;john-paul-stevens...

         1. nickff · 1790185065 · focus · HN ↗

            &gt; &quot;Chief Justice of the US Supreme Court. To prevent more people falling prey to fraudsters, Justice Stevens recommends that this amendment should be repealed&quot;

            I think you might be missing a sentence or a citation there, because Stevens was an associate justice, never the chief on SCOTUS.

            <a href="https:&#x2F;&#x2F;en.wikipedia.org&#x2F;wiki&#x2F;John_Paul_Stevens" rel="nofollow">https:&#x2F;&#x2F;en.wikipedia.org&#x2F;wiki&#x2F;John_Paul_Stevens

            1. hypersoar · 1790203106 · focus · HN ↗

               Parent&#x27;s link about Stevens was separate from the quote, which is from Warren Burger. And Burger was hardly a lefty. He was appointed by Nixon specifically to begin the work of dismantling the achievements of the Warren court.
         2. Terr_ · 1790185188 · focus · HN ↗

            Amen, I&#x27;ve ranted on HN about that a few times. [0] There is zero question that the Second Amendment was created as limit on the federal government interfering with individual states, and did not bar any state from whatever policy they chose for themselves. (Also, at that time, every state was already mandated by mutual treaty to have a &quot;well-regulated militia&quot; with state-appointed officers and state-funding, so the term had existing meaning.)

            Whether that narrow scope is&#x2F;should-be still true is trickier given the 14th amendments, although I believe it was wrongly included in the incorporation doctrine. [1]

            [0] I know Google-search scoped to HN used to find them, and today it doesn&#x27;t. The enshittification continues, is it time for me to start slowly scraping my own comment-history?

            [1] <a href="https:&#x2F;&#x2F;www.law.cornell.edu&#x2F;wex&#x2F;incorporation_doctrine" rel="nofollow">https:&#x2F;&#x2F;www.law.cornell.edu&#x2F;wex&#x2F;incorporation_doctrine

            1. jack_h · 1790191541 · focus · HN ↗

               &gt; There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power in the people, the whole people of the United States, by express authority of the Constitution to do that by congressional enactment which hitherto they have not had the power to do, and have never even attempted to do; that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.

               &gt; Allow me, Mr. Speaker, in passing, to say that this amendment takes from any State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy.

               -- John Bingham, 39th Cong., 1st Sess., p. 2542

               &gt; Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be -- for they are not and cannot be fully defined in their entire extent and precise nature -- to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

               -- Jacob Howard, 39th Cong., 1st Sess., p. 2765

               It&#x27;s correct to say that the second amendment was a limit on the federal government only as decided in Barron v. Baltimore (1833). Total incorporation was the intent of the 14th even though the courts ultimately re-affirmed Barron in US v. Cruikshank (1876) which was a 14th amendment case over the 1st and 2nd amendment. De Jonge v. Oregon (1937) overturned part of Cruikshank by incorporating the right to peaceable assembly from the 1st, later that year Palko vs. Connecticut created selective incorporation doctrine and incorporated double jeopardy from the 5th, and of course McDonald v. Chicago (2010) overturned the other part of Cruikshank by incorporating the 2nd. All this to say, incorporation doctrine is pretty convoluted. If you think that the 2nd amendment should not be incorporated but the rest should then that would make things even more absurd. There&#x27;s just no way via either total or selective incorporation that you can exclude the 2nd without it becoming nine judges determine what rights the government grants you, thus defeating the entire purpose of the bill of rights.

               1. Terr_ · 1790201167 · focus · HN ↗

                  &gt; All this to say, incorporation doctrine is pretty convoluted. If you think that the 2nd amendment should not be incorporated but the rest should then that would make things even more absurd.

                  Please indulge me in a hypothetical. Suppose the 2nd amendment had almost exactly the same practical effect when ratified, but was phrased as: &quot;The Federal government may not restrict any State maintaining its militia, nor seek to restrict or impair that state&#x27;s supply of future potential volunteers and their armaments.&quot;

                  Would you consider that to be a rule about the fed&lt;-&gt;people relationship (creating a personal right for all &quot;potential volunteers&quot;), or do you read it as a rule about the balance of power between fed&lt;-&gt;state layers?

                  Does the difference between those categories matter when it comes to applying the 14th, and which fed-can&#x27;t-do-X rules autogenerate new state-can&#x27;t-do-X rules?

                  &gt; [...] without it becoming nine judges determine what rights the government grants you, thus defeating the entire purpose of the bill of rights.

                  Maybe, but that&#x27;s an appeal to consequences, the truth of something shouldn&#x27;t depend on whether we like what it says about the universe... and that&#x27;s a problem we already have.

                  1. jack_h · 1790449907 · focus · HN ↗

                     If you change what the 2nd says then it would be interpreted differently. That would not have the same practical effect either, it would invalidate a chunk of the Militia Acts of 1792.

                     I understand that one side of this debate really looks towards the prefatory clause as somehow being operative, but that doesn&#x27;t even mesh with contemporary usage of the pattern. Two very analogous examples:

                     &gt; The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.

                     -- Massachusetts Constitution of 1780, pt. I, art. XVI.

                     &gt; The liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved.

                     -- New Hampshire Constitution of 1784, pt. I, art. XXII

                     This was in fact a very common construction in early American legal history. While membership in civil society may impose civic duties and responsibilities the foundational philosophy underpinning these amendments, including the 2nd, is that civil society could not abolish natural rights. The right to self-defense is deeply rooted in English common law stretching back nearly a thousand years. We therefore arrive at my two original quotes from Representatives Bingham and Howard addressing what they considered a weakness in the original construction of the Bill of Rights for which the people had no redress; Howard even mentions the operative clause specifically. They are not the only ones to mention this either given the backdrop of Southern Black Codes.

                     &gt; He should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.

                     -- Samuel Pomeroy, Congressional Globe, 39th Cong., 1st Sess., p. 1182

                     &gt; As citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.

                     -- James Nye, Congressional Globe, 39th Cong., 1st Sess., p. 1073

                     The Second Freedmen’s Bureau Act even plainly states that &quot;the right… to have full and equal benefits of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.&quot;

                     To say that incorporation doctrine of any variety would not incorporate the 2nd would be to ignore both founding era law, philosophy, and the context surrounding the passage of the 14th which would render it a useless doctrine.

            2. bigstrat2003 · 1790196069 · focus · HN ↗

               &gt; There is zero question that the Second Amendment was created as limit on the federal government interfering with individual states, and did not bar any state from whatever policy they chose for themselves.

               Amendment 10, brought into force at the same time as amendment 2, says that the states can&#x27;t infringe upon the right to bear arms either. That is very far from &quot;zero question&quot; as you stated.

               1. Terr_ · 1790198682 · focus · HN ↗

                  &gt; Amendment 10 [...] at the same time [...] says that the states can&#x27;t infringe upon the right to bear arms either.

                  Uh, no. Just... no. Perhaps you&#x27;ve mixed-up the 10th and 14th, which occurred about a century later.

                  The 10th does the exact opposite of limiting state power, it says states continue to have all powers they didn&#x27;t specifically give up by joining. It sets the default for when there&#x27;s ambiguity, and it sets it in favor of not-the-feds.

                  &gt; The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

            3. int_19h · 1790203727 · focus · HN ↗

               You have to account for the fact that several states have equivalent provisions in their constitutions, some of them explicitly protecting individual rights, and other states have added such provisions shortly after.

               That is, the right was broadly recognized as an individual one and not just a state&#x2F;federal interaction issue early on. The federal constitution didn&#x27;t consider that case for the same reason why it didn&#x27;t consider them for all the other amendments - it was simply out of scope there then. But given the historical recognition of the right at the time 14A was enacted, it makes sense to incorporate it.

      2. Terr_ · 1790184533 · focus · HN ↗

         &gt; until violating the said constitution actually has enforceable consequences it’s not more than a paper tiger. [...] Take for instance the 2nd amendment.

         That seems like an exceptionally tepid constitutional violation to pick, after the last several years of massively-worse and flagrant violations.

         Are you offering it because you think it represents something typical, and current events will prove to be an extreme outlier?

         1. roamerz · 1790185369 · focus · HN ↗

            Honestly it is the one that came to mind as I am apparently a victim of fraud.

            More seriously though what good is a constitution if it can be violated without repercussions?

            You and I do agree on one thing though but I would adjust that to being the last 40 years rather than just several.

      3. WalterBright · 1790185844 · focus · HN ↗

         Once people manage to bypass the 2nd Amendment, the next one to go will be free speech.

         1. someonebaggy · 1790188438 · focus · HN ↗

            Free speech has already gone, but guns have not. In fact, the guns are being used to suppress free speech.

            1. AngryData · 1790228615 · focus · HN ↗

               Civilian owned guns are suppressing free speech? Because the 2nd amendment has nothing to do with police or government agencies.
         2. colinb · 1790189491 · focus · HN ↗

            I know. I’m willing to bet the first thing they’d do after seizing the guns would be to stop unfriendly media from first hand reporting of events in the White House.

            Then, when they know they’re proof against an armed citizenry, they’ll start running government policy as a way to line their own pockets. Why, it wouldn’t surprise me if a sufficiently emboldened crook, safe in the knowledge, that you personally cannot stop them by armed force, started to flout the laws left and right.

            Put it another way. I never fail to be amazed by the fantasies that govern significant chunks of American thought. People who’ve lived there, and also in other places are able to figure out pretty quickly where they’re actually safer, and more respected by their government, and able to live a decent wholesome life.

            I’ll note in passing that there are other countries with similar levels of gun ownership but less suicide and violence. Perhaps the first is because they have slightly more left leaning social policies. I’m all but convinced that the second is because they aren’t driven to a frenzy of terror by their local media. Maybe that cat has escaped its bag and isn’t ever going back. A shame. To live one’s life in fear of angry frightened people with guns sounds awful to me.

            Last thing. I’ve had guns pointed at me twice. Once by an infant British soldier in 1990s Belfast. And once by a robbing bastard in a very wealthy part of Los Angeles. Neither was fun, but at least the soldier was predictable in the then prevailing circumstances

            1. WalterBright · 1790207705 · focus · HN ↗

               I, too, have been threatened by a gun. Once by a cop, the other was a mugger.
         3. 8note · 1790205538 · focus · HN ↗

            free speech is abridged without the 2nd amendment being hit.

            unless you are suggesting CNN show up at the whitehouse and shoot anyone that gets in their way to asking the president a question

            1. WalterBright · 1790207443 · focus · HN ↗

               The White House has always chosen which press could be on the grounds. It&#x27;s not a 2nd Amendment issue.

               Do you think you or I, frequent posters on the intertoobs, would be allowed into the press room under any Administration? There&#x27;s no right for us to be there.

         4. rootusrootus · 1790209184 · focus · HN ↗

            Seems like the first amendment has been bypassed for quite a while now. Recall the creation of &#x27;free speech zones&#x27; and &quot;first amendment areas&quot;. We keep telling ourselves that the Constitution applies everywhere in the US, but that is clearly not true.

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