Since its inscription, the Second Amendment to the United States Constitution has proven problematic. Weapons are not what they were in the 18th century and neither are people — at least in the lifestyle sense. Thankfully, we have an entire branch of government dedicated to resolving intractable questions into incomprehensible answers. The court has routinely ruled that the Second Amendment does not grant an absolute right to weapon ownership, but that it does grant Americans the right to — within statutes determined by states — own guns. But what about laser guns?
If that sounds like a flippant question, it isn’t. Last month, engineers from Lockheed Martin shot a hole in a Ford F-150 from a mile away. They were working on hardware to compete in the nascent laser weapons market against other offerings from Northrop Grumman. These weapons are certainly traditional in their point-and-shoot forms, but things are never simple when it comes to what are arguably the 27 most controversial words in American law.
“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.”
That’s not exactly a well-crafted sentence by modern standards, and so not exactly a perspicuous principle. It’s not clear whether it’s intended to grant members of a militia the right to keep and bear arms, or, instead, to grant all U.S. citizens the right to keep and bear arms. There is no mention of lasers. Let’s see if the justices can clear it up.
In 2008, the Supreme Court decided a case that directly informs our current inquiry. District of Columbia v. Heller sought to settle whether a D.C. “prohibition on the possession of usable handguns in the home” was unconstitutional. The Supreme Court ruled, with five votes against four, that the prohibition was unconstitutional. The late Justice Antonin Scalia wrote the majority’s opinion to explain the decision, and now-retired Justice John Paul Stevens penned the dissent.
The majority opinion broke down the amendment into a prefatory (introductory) clause and an operative clause. The operative clause states that “the right of the people to keep and bear arms shall not be infringed,” while the prefatory clause introduces and accounts for that dictum. In short, then, the majority opinion argued that “the people” was intended to mean all U.S. citizens, just as elsewhere in the Constitution “the people” represented all U.S. citizens.
The dissent disagreed, arguing that this so-called prefatory clause limits who “the people” of the operative clause encompasses. In other words, “the people,” insofar as they are connected to the well regulated militia, may “keep and bear arms.”
So far, so simple. Now let’s talk about arms.
Scalia’s written opinion argued that our interpretation of what constitutes “arms” can be no different than what the Founding Fathers intended. “The 18th-century meaning is no different from the meaning today,” Scalia wrote. “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.” No matter that the weapons of today do not resemble the weapons of yore: Scalia argued that we cannot pick and choose which constitutional rights remain applicable in modern times and which do not.
“We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications… and the Fourth Amendment applies to modern forms of search… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
No less, Scalia agreed with the Supreme Court’s decision in United States v. Miller, a 1939 case that ruled sawed-off shotguns — being, as they are, inessential to the maintenance of a well regulated militia — were not protected by the Second Amendment.
“Miller said… that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
Sawed-off shotguns were designated as Title II weapons — along with machine guns and crazy explosives — under 1968’s Gun Control Act, which made them strictly regulated. People who wanted to own these highly destructive weapons still could own them, but had to register them with the federal government, pay a tax, and be approved.
Later, he goes on:
“It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
Not looking good for laser guns. Though laser guns are militarily effective, and would be extraordinarily “useful against modern-day bombers and tanks” — cf. Air Force fighter jets equipped with laser guns to burn through targets — they’d definitely fall into the “M-16 rifles and the like” category. They’re most certainly “dangerous and unusual weapons,” and, as such — unlike handguns — could still be prohibited.
In addition, laser guns would likely be classified as Title II weapons after some legal tinkering. The relevant U.S Code definition, 26 U.S.C §5845, states that a shot can be “discharged through the energy of an explosive” within “any other weapon” not subjected to additional restriction. Lasers are not discharged from explosions — not as such.
Title II weapons, even in originalists’ eyes and despite their military applications, can be broadly controlled and outright restricted. The Second Amendment may federally uphold your right to arm yourself, but you still can’t own a sawed-off shotgun and, unless things go south in a hurry, you’ll probably never own a laser gun.
Laser cats, however, will be fine.