IEEE Technology and Society Magazine - June 2019 - 74

Larger corporations fail to meet the
mortal requirement in the social
contract between the militiamen and
the state.

undermines government support for framing a hacker
tool as an "unusual" weapon [12]. If used by the defense
establishment and the intelligence community a claim
that it is an "unusual weapon" is nullified, because government through actions show that it is a "usual weapon." Because hacker and discovery tools are commonly
used by both the military and civilians, and both communities utilize the same overarching information technology, such as wireless, sharing, data storage, Internet
of Things, and communication [13], [14], the legal foundation for prohibiting civilian ownership of potentially
weaponized software evaporates.

Corporate Cyber Rights to Bear Arms
The relationship between the militia, armed citizens,
and lawmakers is a social contract where all parties surrender and receive. After the American Revolution, the
creators of the Constitution and of the Bill of Rights that
directly followed, were influenced by philosophical
ideas of the time. These ideas included Hobbes's concept of the social contract, John Locke's right to rebel,
and Montesquieu's idea of keeping the military force as
close to the citizenry as possible to avoid tyranny. In the
view of the framers of the Bill of Rights, an armed citizenry was a safeguard against abuse of power against
the citizens.
In originalist thought, militiamen were volunteers
ready to defend their state and community from hostile
forces, and by doing so, risked their lives in the engagement. The militia is made up of citizens that have the
right to bear arms. A militia risks the lives of its members to defend its community and state. Therefore, sui
genesis a militia is mortal: a militiaman could die from
combat wounds or succumb to disease and hardship as
a result of combat. The militia takes a fatal risk, and
does so to protect the state, and is therefore contributing to the state security. A militia is able, ready, and
invested in the American enterprise.
Citizens have the right to bear arms, but citizens are
assumed to be reasonable - what in Roman legal tradition described as bonus pater familias: the reasonable
good family father - a father with sound judgment and
values who will provide security when needed and

defend his community. In the originalist view, the militia
is presumed loyal to the state that emerged after the
American Revolution. The Bill of Rights was ratified in
1791, less than ten years after the end of the American
Revolutionary War, which divided the colonists of the 13
colonies into two camps: American revolutionaries and
loyalists to the King of England. The militia gives the
state manpower to protect the people of the state and
the state itself if needed, surrendering their freedom
partly by volunteering as militiamen and accepting a
risk of loss of life, and gaining a right to bear arms.
Each citizen who is given the right to bear arms does
not need to be a member of the militia to execute and
take favor of the right to bear arms, but the militia is
recruited from the armed citizenry.
U.S. federal law establishes that a corporation is a
U.S. person under federal laws and executive orders. The
U.S. tax code Internal Revenue Code Section 7701(a)(30)
defines a U.S. person as "a citizen or resident of the United States (including a lawful permanent resident residing
abroad who has not formally notified the United States
Citizenship and Immigration Services in order to abandon that status); a domestic partnership; a domestic corporation." The National Security Agency, supported by
U.S. Presidential Executive Order 12333, states the following: "Federal law and executive order define a U.S.
person as a citizen of the United States; an alien lawfully
admitted for permanent residence; an unincorporated
association with a substantial number of members who
are citizens of the U.S. or are aliens lawfully admitted for
permanent residence; or, a corporation that is incorporated in the U.S."
The question is whether any corporation can claim
Second Amendment rights to own military-grade cyber
weapons as a part of the recruitment pool for the state
militia and as free men with the right to bear arms.

Citizens Enter a Social Contract by Bearing Arms
The argument put forward here is that only a corporation that risks corporate death and demonstrates
unquestionable loyalty to the United States could claim
Second Amendment rights to own military-grade cyber
arms. The rationale is that for the corporation to conceptually resemble a militia member, even though not
every armed citizen is selected by the state for the militia, the corporation has to be unquestionable loyal, and
if needed to defend, willing to take a risk to protect the
state and the union.
American citizenship assumes a willingness to bear
arms to defend the union; such willingness is also a
requisite for naturalized citizenship. In the time of framing the Bill of Rights, bearing arms to defend had a tangible risk of becoming a fatality. If the corporation is so
large that the risk the corporation takes is neglectable

IEEE TECHNOLOGY AND SOCIETY MAGAZINE

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JUNE 2019

IEEE Technology and Society Magazine - June 2019

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