The Second Amendment and Cyber Weapons - The Constitutional Relevance of Digital Gun Rights

by   Jan Kallberg, et al.

In the future, the United States government can seek to limit the ownership and usage of cyber weapons. The question is whether the Second Amendment to the United States Constitution gives a right to bear and own military-grade cyber weapons, and if so, under which conditions. The framers of the Bill of Rights, ratified in 1791, did not limit the right to bear arms to defined weapons such as long rifles and pistols, but instead chose the broader word arms. The United States Supreme Court, in the case District of Columbia v. Heller, upheld a demarcation between dangerous and unusual weapons that are not permissible to own and weapons protected by the Second Amendment. Cyber weapons take the form of dual-use software, often shared and globally distributed that in most cases can be weaponized for harmful purposes. In recent years, major corporations have sought to hack back, and if the hack back is authorized, the question becomes whether corporations have digital gun rights. Even if corporations are considered US persons, they do not automatically obtain digital gun rights based on the Second Amendment. This article discusses the core constitutional challenges for the United States government in prohibiting individual ownership of cyber weapons and the rationale for why corporations are in a weaker position regarding ownership of cyber arms. The argument brought forward is that individuals can claim Second Amendment protection of their right to own military-grade software tools, but corporations must meet additional criteria to do so.



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