Mr. Connery, You'll Have to Check That Shotgun

Jacob Sullum | December 29, 2006

Taking a lesson from the 1981 Sean Connery sci fi western Outland, which showed how dangerous it can be to mix guns with spaceflight, the Federal Aviation Administration wants to keep passengers from carrying firearms on rocket ships. Given the FAA's rules for air travel, that much is unsurprising. But while defending its space travel regulations in the December 15 Federal Register, the FAA casually and gratuitously endorsed the "collective right" interpretation of the Second Amendment, according to which the amendment poses no obstacle to gun control because it has nothing to do with an individual right to keep and bear arms, instead protecting states' prerogatives vis-à-vis their militias:

XCOR inquired whether the FAA had the authority to impose security requirements under its statute and the U.S. Constitution. The Second Amendment to the Constitution provides that "[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.'' This right is not unfettered. Nearly every statute restricting the right to bear arms has been upheld. For example, in 1958, Congress made it a criminal offense to knowingly carry a firearm onto an airplane engaged in air transportation. 49 U.S.C. 46505. Additionally, nearly all courts have also held that the Second Amendment is a collective right, rather than a personal right. Therefore, despite the Second Amendment collective right to bear arms, the FAA has the authority to prohibit firearms on launch and reentry vehicles for safety and security purposes.

For supporters of the right to armed self-defense, them's fightin' words. Pro-gun-rights blogger David Codrea asked the FAA how it could reconcile this language with then-Attorney General John Ashcroft's statement, in a May 2001 letter to the National Rifle Association, that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." That position, confirmed by the Justice Department in litigation later that year, dismayed anti-gun activists and heartened the Second Amendment's defenders. In response to Codrea's inquiry, an FAA attorney informed him that "this rule, including its security requirements, underwent coordination and review within the executive branch. It was reviewed and approved by the Executive Office of the President."

Codrea considers this significant, possibly indicating a change in the Bush administration's position. More likely it indicates that whoever wrote the rule is sympathetic to gun control and whoever reviewed it was careless. It's simply not necessary to declare the Second Amendment a nullity in order to defend security regulations like these. Ashcroft himself has said the amendment permits "reasonable restrictions" based on "compelling state interests," an exception that is potentially quite broad (probably too broad). My own view is that if a spaceline wants to let passengers carry ray guns, it should be free to do so. But if the FAA insists on overriding that judgment, it can do so without vaporizing the Second Amendment.

 [via No Silence Here] 

Comments

The Wine Commonsewer|12.29.06 @ 1:20PM|#

If you repeat something often enough......

|12.29.06 @ 1:30PM|#

There are no collective rights, only individual ones. Am I right?

|12.29.06 @ 1:33PM|#

No guns in space? What's space for, then?

|12.29.06 @ 1:36PM|#

"""Additionally, nearly all courts have also held that the Second Amendment is a collective right, rather than a personal right. """

I've never understood this. We have a collective right, but that excludes the individual? I don't have the right but we have the right just sounds odd. How many I's make up a collective? Must we carry firearms in a group? If I break away from the collective do must I return my gun?

I thought if something applies to everyone (collectively) the individual is still covered under the collective right.

|12.29.06 @ 1:36PM|#

While I believe that there is no such thing as a "collective right" (we'd have to have a "collective mind" for that) the FAA is right about one thing: Guns and spaceships theoretically don't mix. While I disagree with their legal reasoning, I can see why they would wish to do it. If a bullet breaches the hull of a spacecraft, hard vacuum doesn't care about what's in the Bill Of Rights.

I say, send the FAA lawyers back to the books to come up with a less constitutionally fugly reason to keep slugthrowers off future spaceflights.

On an unrelated note: "Outland," a sci-fi rewrite of the western classic "High Noon," has some rather nasty anti-libertarian messages: Anti-drug, anti-prostitution, etc. The only other anti-libertarian movie I can think of that where the anti-freedom message is as blatant is "Tombstone."

Wild Pegasus|12.29.06 @ 1:52PM|#

They'll get my guns when they pry them from my cold, dead, moon-bound hands.

- Josh

Guy Montag|12.29.06 @ 2:00PM|#

When I have my own spacecraft I must let the revenuers inspect it befor launch and reentry?

Just how am I supposed to protect myself from the possibility of hostile life, that is now much more than possibulity, it is a concensus?

Guy Montag|12.29.06 @ 2:02PM|#

Wild Pegasus,

Who are you trying to fool with that moon nonsense?

Akira MacKenzie,

What about the space pirates? I saw many instances of them in animated documentries when I was a kid.

|12.29.06 @ 2:14PM|#

While I believe that there is no such thing as a "collective right" (we'd have to have a "collective mind" for that) the FAA is right about one thing: Guns and spaceships theoretically don't mix. While I disagree with their legal reasoning, I can see why they would wish to do it. If a bullet breaches the hull of a spacecraft, hard vacuum doesn't care about what's in the Bill Of Rights.
Yeah, but I don't like the idea that they can take away my right to bear arms because a bullet would damage the hull. If a handgun that won't pierce the hull becomes available, they're not likely to tell me "oh, now *that* you can carry aboard, because it won't puncture the hull." Instead, they'll just point to the "no firearms" policy.

Capt. Malcom Reynolds|12.29.06 @ 2:15PM|#

That would explain why those F***ing Alliance A***oles are always chasing my ship!

|12.29.06 @ 2:23PM|#

"There are no collective rights, only individual ones. Am I right?"


..."the right of the people peaceably to assemble..." It takes a collective to assemble.

There is also a widely recognized right to self-determination.

Nobody Important|12.29.06 @ 2:26PM|#

jenl1625 | December 29, 2006, 2:14pm
If a handgun that won't pierce the hull becomes available, they're not likely to tell me "oh, now *that* you can carry aboard, because it won't puncture the hull."

In John Ross's novel Unintended Consequences, the protaganist carried a Smith & Wesson 29 with nylon bullets, which the character does use on a plane.

"Those bullets are turned out of nylon bar stock. They make a huge wound cavity at this range but they won't exit. No one behind you is in any danger at all." (April 7, 1990)half-inch nylon bar stock." (August 12, Present Day)

"Pushed ahead of the burning powder was a .429" diameter projectile which had been lathe-turned from half-inch nylon bar stock." (August 12, Present Day)

David Codrea|12.29.06 @ 2:34PM|#

Mr. Sullum, thanks for picking up on this. A point I emphasized in a later post conformed with your observation in re the Ashcroft letter's "compelling state interest" footnote--which is all the FAA needed to say and this would have escaped everyone's radar because it would have been consistent with the admin's public position.

How this should be interpreted is debatable--right now, all I can go on is the clear language of the rules and the statement from the Sr Attorney, Office of the Chief Counsel of the FAA, who is the designated legal contact, that "It was reviewed and approved by the Executive Office of the President."

I think it's incumbent on gun owners, who were largely responsible for both of Mr. Bush's electoral victories, to press the administration on this point, to ask them what their official policy is, and to push for a reissuance of the rules sans the "collective rights" justification.

One final note: There has been much confusion that the issue is about guns and spaceships. It is not, although that might make for an interesting debate. It is simply and solely about language being approved by the White House justifying an assumed authority based on the "collective rights" model of the Second Amendment. Since the Ashcroft position garnered world headlines as a "sea change", I would arguie that this apparent reversal is at least worth awareness, scrutiny and a pursuit of the truth.

|12.29.06 @ 2:37PM|#

It's good to know the desks are so clean at the FAA.
What might an inspector general have to say about devoting taxpayer funded FAA man hours to writing rules for COMMERCIAL SPACE TRAVEL?

[in case you haven't guessed, I am too lazy to learn HTML italic tags]

|12.29.06 @ 2:49PM|#

Allow me to quote one of Britain's finset modern thinkers and insert several words to suit this context.

"Throw transport[regulations]down the well
So my country can be free
(So my country can be free)
We must make [space] travel easy
Then we have a biiiig parteeeee!"

|12.29.06 @ 2:56PM|#

Correct me if I'm wrong, but I think the collective right notion goes back to the original intent of the bill of rights to put limits on the federal government (ie not the states). The second amendment was basically a guarantee to the states that they could keep their militias, which were organizations made up of the free men of the state who kept and provided their own arms for service- hence the collective nature of the right. Maybe it would be more accurate to say it was a state right than a collective one.

|12.29.06 @ 3:49PM|#

Additionally, nearly all courts have also held that the Second Amendment is a collective right, rather than a personal right

Bullshit. For starters, very few courts have "held" one way or the other on this question, so claiming that "nearly all courts" have upheld the collective rights amendment is highly misleading.

Second, the major decision to directly address this question came down from the 5th Circuit a few years ago and upheld the individual rights interpretation.

If one of my flunky lawyers tried to pawn off bullshit that weak on me, I'd have him flogged.

|12.29.06 @ 3:51PM|#

The second amendment was basically a guarantee to the states that they could keep their militias, which were organizations made up of the free men of the state who kept and provided their own arms for service- hence the collective nature of the right. Maybe it would be more accurate to say it was a state right than a collective one.

That would be great, except that's not what it says. Its a "right of the people", not a right of the states.

|12.29.06 @ 3:53PM|#

There is no such thing as a collective right, period, only individuals have rights. Stop buying into the government's nonsense regarding this issue and they will not be able to fool you so easily.

Larry A|12.29.06 @ 4:09PM|#

In Outland Sean played a LEO, as I recall a U.S. Marshal. I bet under FAA rules they're exempt.

..."the right of the people peaceably to assemble..." It takes a collective to assemble.

Not. I can take a football down the street to my local park and if enough individuals want to participate enjoy a pickup game. There's no "collective" because any individual can join, any individual can leave, and the group doesn't exist before or after the game. A flashmob is another example, as are the posters currently on this blog.

The second amendment was basically a guarantee to the states that they could keep their militias, which were organizations made up of the free men of the state who kept and provided their own arms for service- hence the collective nature of the right.

Second Amendment: 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.

A well-organized militia is necessary to the security of a free state. Since the right of the people to keep and bear Arms is necessary for a militia, it shall not be infringed.

The terms "the people" and "person" are used elsewhere in the Constitution and its amendments, and invariably pertain to individuals. Where the Founding Fathers referred to states, they used the term "states."

|12.29.06 @ 4:17PM|#

RC Dean and Larry A,
You seem to be ignoring the introductory phrases, which clearly references States and militias. This would seem to provide some context to the rest of the sentence. No?

uncle sam|12.29.06 @ 6:21PM|#

The context is that the militia that fought off the British, were often farmers and such carrying their own weapons and not part of any state militia.

And if the British had won, many a patriot would have been hung as a traitor.

uncle sam|12.29.06 @ 6:31PM|#

For the real context, you should read the discussions leading up to the second amendment.

At the time, there were only two groups able to engage the British. The regular army, and the militia; composed of volunteers bearing arms.

|12.29.06 @ 6:42PM|#

"""RC Dean and Larry A,
You seem to be ignoring the introductory phrases, which clearly references States and militias. This would seem to provide some context to the rest of the sentence. No?"""

By the same standard your ingoring where it says the peoples right will not be infringed. Your making your argument based in the reasoning clause. But it clearly says the peoples right. Who are the "people"? Read the first three words of the preamble.

|12.29.06 @ 7:41PM|#

"It was reviewed and approved by the Executive Office of the President."

"More likely it indicates that whoever wrote the rule is sympathetic to gun control and whoever reviewed it was careless."

Careless or, shall we say, not too bright? Too many big words to understand?

R C Dean|12.29.06 @ 11:34PM|#

You seem to be ignoring the introductory phrases, which clearly references States and militias. This would seem to provide some context to the rest of the sentence. No?

Sure. It gives a reason why the individual right to arms is so important. Doesn't limit that right, or convert it into a collective right.

Paraphrase it a tad: Because a well-regulated militia is necessary to the security of a free state, the right of the people etc.

Geez, this ain't rocket science.

|12.30.06 @ 8:05AM|#

"Foolish liberals who want to read the 2nd Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like." -- Alan Dershowitz (certainly no right-wing gun nut)

|12.30.06 @ 10:49AM|#

Question? What if your ship was a gun in itself?

|12.30.06 @ 12:15PM|#

IIRC, Russian spacecraft carry shotguns on board for survival purposes in case of an anomalous re-entry, in which the vehicle sets down in the boonies somewhere and the crew can't be reached for some time. This has occurred at least once.

So you see, there IS a good reason for carrying weapons in space; same reason you carry any survival gear in an aircraft or boat.

And who gave the FAA the "authority" to infringe on my right, anyway?

GunShowOnTheNet|12.30.06 @ 5:44PM|#

ALL of Rights enumerated in the Bill of Rights are INDIVIDUAL Rights. As well as ALL that were NOT enumerated. To Wit:

The Bill of Rights, of We The People, "to be valid to all intents and purposes as part of the said Constitution" of the United States of America, From a different perspective

The Right of the People to Keep and Bear Arms was a preexistent Natural Right. Wit:

"Agreed to found our Rights upon the Laws of Nature...."

And, not only were our Rights to be secured from being encroached upon by our governments. But, from encroachment by the private sector as well;

The Debates, "Personal Rights Vs. Property Rights", August 7, 1787

Here's all the proof you'll ever need, (and more), -

"Rights of the citizen declared to be --"

The Right

|12.31.06 @ 8:03AM|#

I wonder what people would think if the government tried to pass a law disarming black people. (Or women or gays or Jews. Pick one) I'm betting most people would figure out real quick that the government had bad intentions for these people. Some how people can't see the intentions when the government says it wants to disarm everybody.

|12.31.06 @ 8:30PM|#

I think this is the funniest thing I've ever heard. The FAA has claimed jurisdiction in space, how quaint. Let them just try and pull me over. Seriously we should all be thankful this doesn't apply to directed energy weapons.

|1.2.07 @ 12:59AM|#

Agree that this is something that needs to be clarified wrt both the Ashcroft statement and the 5th Circuit decision.

As to the carrying of arms on spacecraft, I believe it ought to be left up to company providing the service as to whether they ban all firearms at all, loaded ones carried by those on the flight, or only allow them in the cargo hold.

(I can't be the only person who's ever thought it would be cool as all get out to have a rifle competition on the surface of the moon or Mars.)