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


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