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Speculation and Policy Decisions:

I much appreciate the comments in the Electromagnetic Pulse and Smart Guns thread, and I wanted to follow up on one question.

Some commenters -- and others I've talked about this subject -- suggested that it's not sound to make policy decisions based on this sort of speculation about the possibility of an EMP attack. (I set aside for purposes of this post whether one ought to speculate about the availability of smart guns; let's assume that smart guns become available and reliable, as the New Jersey conditional smart gun mandate law presupposes they will be. I also set aside whether smart gun mandates are prohibited by the Constitution even if it turns out they don't materially interfere with people's ability to keep and bear arms for self-defense; that will be the focus of more posts in a few weeks.)

Let me probe this speculation issue a little. The existence of EMP is not speculation: EMP, unlike sex-starved velociraptors, is quite real, as are nuclear bombs, as is EMP that goes much further than the bomb's kill radius. The speculation comes in guessing about the per-year probability that America would be subject to an EMP-generating (but not otherwise immediately lethal) nuclear attack.

But is such speculation really improper -- or even reasonably unavoidable -- when it comes to policy analysis? Imagine that there's a proposal to spend tax money to shield American infrastructure installations against EMP. I assume we wouldn't condemn it as inherently unsound because it's built on speculation about the likelihood of an EMP attack. Of course we could always debate whether it's worth spending the particular amount of money that's proposed, given other possible uses for the money (including lowering taxes as a possible use). But to resolve that debate, either in favor of spending on EMP shielding or against it, we'd have to speculate about the risk of an EMP attack.

Is there some inherent reason that such speculation is (1) proper for evaluating the merits of spending programs, but (2) not proper when evaluating the constitutionality of regulatory programs (in the course of determining whether the programs excessively burden the exercise of constitutional rights)?

Fury:
EMP is real 'stuff. A couple of aircraft systems we supported had cables and components shielded to minimize the effects of EMP - it was a pain to work with, as the cables were pretty rigid. But of course, the alternative to not protecting systems was planes possibly not being to roll off the alert pad due to an EMP burst...
2.4.2009 9:23am
bornyesterday (mail) (www):
So just store your gun in box that it hardened against EM. If we're presupposing the existence of smart guns, why not presuppose the existence of a technology that protects against the effects of EMP?
2.4.2009 9:25am
bornyesterday (mail) (www):
I guess I should note that EMP hardening has existed for years in the form of Faraday cages, metallic shielding and increased capability of circuits of handling electronic surges.
2.4.2009 9:30am
Anonymous Hoosier:
This is probably a good subject for a brief article in and of itself -- the appropriate use of speculative scenarios in policy analysis. Personally, I don't think the EMP scenario is too speculative to consider. (Particularly considering the related problem of lightning strikes described by some of the commenters). I was astonished to read commenters who suggested that the breakdown of civil order is too speculative to consider.

In my view, this reflects a broader problem in policy planning, typical of many "mainstream" thinkers, whether liberal or conservative, to assume that changes will occur only linearly and gradually, and thus that things will always look more or less as they do now. Thus, we are told by some on the left that military spending is unnecessary because (right now) there are no "peer competitors." And we are told by some on the right that we must build expensive F-22 fighters instead of developing more capable UAVs at a fraction of the price because "pilots will always be required" for ACM.

In any case, just as your slippery slope article has become a touchstone for academic debates employing the metaphor, perhaps this is an opportunity for an article of similar importance. Plainly it makes sense to set a time horizon and consider scenarios that we might see within that time horizon, and it's best to discuss them as "high-consequences, low-likelihood." And ultimately, any article and argument can be caricatured -- so if you want to make this a central argument, it will take more work to defend it and argue that it's worth taking into account by showing it to be more plausible than velociraptors, and high-risk.
2.4.2009 9:33am
Tracy Johnson (www):
Yes, such speculation is improper. It is improper because it is a waste of time. Such analysis should be part and parcel of any infrastructure (a.k.a. engineering) project, like lifetime bridge stress analysis, or how much paint to use. No one debates the constitutionality of paint on infrastructure.

In other words, it shouldn't be larder for policy wonks, but part and parcel of any project that has already been budgeted. The military EMP shields its stuff, no one debates THAT, it is just built into their specs.
2.4.2009 9:35am
CDU (mail) (www):
People who advocate applying the precautionary principle in environmental regulation are generally the same ones who would recoil in horror from the idea of applying it to personal protection by buying a firearm.
2.4.2009 9:37am
Eugene Volokh (www):
Bornyesterday: Storing a gun in a hardened box is all very good if you like your guns in boxes. But people who have licenses to carry concealed guns would presumably often want their guns to be on their persons, and even people without such licenses may carry guns on their property (for instance, if they live in a high-crime part of town or if they're out on their rural land and want protection against animals as well as people).

Now perhaps the solution for those people is to have two guns, one in a box in case of EMP and one on their persons. But that does suggest that the smart gun mandate would materially increase the cost of having guns for self-defense, if one includes protection against EMP risk as part of the cost.
2.4.2009 9:38am
Old Fart:
Is a US Continental nuclear EMP attack too speculative to consider?

I think most of the US Military believes so these days, and considers it a relic of Cold War planning.

A little research into the few high-altitude nuclear tests conducted by both the US and USSR (back when atmospheric testing was still the norm) would show that any effective nuclear EMP attack would require a fairly high yield (+400 kiloton) burst at 400 km.

Other than "friendly countries," only Russia and China are capable of such an attack. It's just not the sort of thing that Pakistan, Iran or some other incipient nuclear power could accomplish. Or any non-state actors.
2.4.2009 9:47am
Lighten up Kansas:
You could build an EMP-proof concealed holster for sure. And likely could do something to protect the smart trigger lock as well. I'd worry more about forgetting to charge the batteries or whatever to power the smart lock...
2.4.2009 9:47am
Houston Lawyer:
Clearly the solution is to never give up your old guns. Barring corrosion, most existing guns should still be functional 100 years from now.

I would expect that any government authorized "smart" guns would also have a fail safe built in to them that the government could disable. Therefore if someone took a hostage, the police could remotely disable his gun. Then there would also be nothing to prevent the government from disabling all of the guns in the hands of the general public.
2.4.2009 9:48am
Eugene Volokh (www):
Lighten Up Kansas: Can you tell me a bit more about that? My understanding is that adequate EMP shielding wasn't trivial, but I'd love to hear more.

Tracy Johnson: I don't think I quite understand your argument. Why is it improper for "policy wonks" to consider EMP risk in evaluating how much a regulation might burden self-defense, but proper for government officials who are supervising construction programs to consider EMP risk in evaluating how to allocate funds between EMP-shielding and other possible uses?
2.4.2009 9:58am
Kevin P. (mail):
I want to repost something from the other thread.

Until ordinary police officers on patrol carry smart guns as their duty weapon, the general public should not be coerced by law into adopting them. The lives of ordinary citizen are no less and no more important than those of police officers. When the President's Secret Service detail starts carrying smart guns, that will be the sign that smart gun technology is ready for the general public.

In case of EMP or other electronic malfunction, accidental or induced, the smart gun should be convertible to a dumb gun by a manual key or other simple device. This will ensure that the usefulness of the firearm is preserved even in case of calamity, while preventing casual unauthorized access.
2.4.2009 10:00am
corneille1640 (mail):

Other than "friendly countries," only Russia and China are capable of such an attack. It's just not the sort of thing that Pakistan, Iran or some other incipient nuclear power could accomplish. Or any non-state actors.

Isn't part of the fear that a terrorist may purchase a nuclear weapon from one of those countries, or somehow have a weapon construct, and then detonate it in the US? I don't know how credible the fear is because I haven't the faintest idea on the logistics of sneaking a nuclear weapon into the US or of constructing some rogue weapon within the country. But it at least seems like a possibility.
2.4.2009 10:10am
Harry O (mail):
I have attended several seminars on building design since the Oklahoma City bombing. The purpose was to make buildings more bomb resistant and less lethal to its inhabitants if bombed. After 9-11 the suggestions became requirements. And they involve considerable cost.

The windows have to be upgraded considerably (multiple pane safety glass and shock absorbing frames), beams have to be quadrupled in strength (in order to double the span that it can support in case one column is knocked down), etc.

In spite of the very few buildings that have been bombed and severly damaged, there does not seem to be anyone questioning whether or not the cost is money well spent. Everyone should know that the requirements are only for new Federal government buildings right now, but State buildings are starting to require these specs. Local government will probably follow and eventually large companies. The cost will spread and it is considerable.

As far as the concept of "smart guns", from what I have read about them, they don't work and won't work for the forseeable future. In EVERY case where "smart gun" bills are brought into the legislature, the police lobby to be exempt from the requirement -- although they could use the protection more than any other person who carries a gun. They are most likely to be shot with their own gun. It seems that police have looked at what is being pushed as "smart guns" and have decided that they are unreliable and cannot be trusted. Why then should anyone else be forced to rely on the unreliable?
2.4.2009 10:12am
Jim Hu:
CDU wrote:
People who advocate applying the precautionary principle in environmental regulation are generally the same ones who would recoil in horror from the idea of applying it to personal protection by buying a firearm.

I kind of doubt this. The precautionary types already are selective in which scenarios they consider. The costs of not doing what they want to block are rarely considered.
2.4.2009 10:12am
Muskrat:
"The speculation comes in guessing about the per-year probability that America would be subject to an EMP-generating (but not otherwise immediately lethal) nuclear attack." No, the speculation is that number, times the probability that the attack would have X specified affect on various electrical systems, times the probability that such an effect would cause a breakdown of social order sufficient to make worrying about your smart gun a reasonable concern. Hearings on protecting infrastructure only posit the first two antecedents and are rightly concerned with levels of damage below the threshold for outright social collapse, making them inherently less speculative. It's more reasonable to worry abut rain than about Noah's flood.

In any case, there are strong arguments that the EMP threat is remote and that the commission's work is politicized scaremongering. See, e.g.,this (discussing an earlier report from the commission) and this. (discussing a related article by Bill Gertz)

The line isn't between taking action based on speculation and not; it's between taking action based on informed speculation about realistic risks and not.
2.4.2009 10:17am
bornyesterday (mail) (www):
Eugene - As Lighten Up Kansas suggests, there are other options to hardened storage boxes.

Aluminum-foil hats to protect from the aliens/our satellites from reading your mind, are pretty effective faraday cages. Applying the principle to a gun holster, say two sheets of leather surrounding a conductive material such as copper or aluminum would be pretty effective.

this site has a pretty good introductory explanation of various aspects of EMP hardening.
2.4.2009 10:26am
Taleb Screaming (mail):
And so the Black Swam swam into policy and the constitution. What were the chances of that!
2.4.2009 10:29am
Glen Alexander (mail):
I think the fascination with EMP has gotten a bit out of hand.

Sure it's OK to speculate about it (and other rare events) in policy analysis. But connecting the risk of an EMP attack with the constitutional and policy issues surrounding "smart gun" technology just obscures the plain facts about the latter.

I haven't heard of any realistic scenarios regarding a widespread (e.g., nuclear) EMP attack in this day and age. So why not set that issue aside as entertaining but unrealistic speculation?

On the other hand, "smart gun" prototypes have been built and demonstrated. Many of the previous posters have raised serious and valid concerns about their reliability and appropriateness, even for law enforcement.

I agree wholeheartedly with Don Kilmer: "I don't like any device that comes between the mind of the shooter and the gun that enables... the shooter to treat a gun in a manner... inconsistent with... a weapon that is loaded and deadly."
2.4.2009 10:34am
paul lukasiak (mail):
wow... talk about craziness...
_
The likelihood of an EMT only attack is vanishingly small -- the only powers capable of such an attack wouldn't be crazy enough to limit themselves to EMT nukes if they were going to nuke us, and EMT would be the least of our problems if all out nuclear war occurred.

But lets assume that some "rogue state" actually did manage to launch an EMT attack... what are the chances that the attack would result in a complete breakdown of social order?

The evidence (see the US response to literally every attack or even threat of attack by a foreign power in modern history) tells us that rather than a breakdown in social order, the result is period of more cohesive social order, because of the perceived external threat.

In other words, worrying about your "smart gun's" vulnerability to an EMT attack because of the potential for breakdown of social order is simply crazy talk.
2.4.2009 10:38am
Plastic:
The real risk is not a widespread EMP attack, but rather the risk of being able to disarm law enforcement (and kill their radio and phone) with a simple hand-held device. An electronics hobbyist can make a small EMP or microwave emitter that could knock out unprotected circuitry pretty easily, and with such great incentive they'd become very popular in the black market.
2.4.2009 10:58am
Peter B:
Plastic is exactly correct. Of course, it could get worse. Anybody want to bet how long it would take for DHS to seek to regulate the sale of electronic components? Any guesses what that would do to inventiveness and productivity?
2.4.2009 11:12am
Gabriel McCall (mail):
Is there some inherent reason that such speculation is (1) proper for evaluating the merits of spending programs, but (2) not proper when evaluating the constitutionality of regulatory programs (in the course of determining whether the programs excessively burden the exercise of constitutional rights)?


Yes.

All spending must by definition be based on some sort of cost/benefit analysis. The purchaser must evaluate the potential benefits of the spending and weigh that against the opportunity cost of not using that money elsewhere. To suggest that government spending programs must not be speculative is to condemn the idea of government spending altogether.

In contrast, the constitutional question is a very different matter: the government would be depriving the people of the right to make their own cost/benefit analyses. The fact that the government must engage in speculative activity in order to properly buy the goods necessary to do its job, does not mean that it has the right to impose its policy choices on everyone. The government must decide what sort of arms it will buy, and must speculate in order to do so, but it must not decide what sort of arms I will buy nor speculate on my behalf.
2.4.2009 11:21am
Evan Mayerle (mail):
And let us not forget natural EMP due to intense solar storms. While they aren't common, they have been known to occur with significant impact to terrestrial systems, such as the power outage that hit Quebec in 1989 (and that wasn't even the most powerful one recorded). I don't know that I'd want to trust a weapon that didn't "fail soft" (allowing continued functioning) after EMP exposure.
2.4.2009 11:50am
Roger Schlafly (www):
If you take the position that the citizens have the 2A right to have the same guns that soldiers and cops have, then I am not sure that EMP is an issue. When and if smart guns are developed which are good enough for soldiers and cops, they'll probably be good enough for ordinary citizens as well.
2.4.2009 12:22pm
Clayton E. Cramer (mail) (www):
EMP is a pretty rare problem. But the federal government passed an assault weapons ban to deal with a problem that was so rare that the Clinton Administration's criminologists hired to study how much the ban reduced murder couldn't identify any statistically significant improvement caused by it.

Gun accidents kill a very small number of children each year--so few that anyone who worries about children 0-14 years of age being killed by a gun accident should be devoting their energy to the much bigger risks, such as car accidents, and drowning.

Pretty clearly, gun control advocates don't let rarity of a problem prevent them from passing laws.
2.4.2009 12:46pm
Gabriel McCall (mail):
If you take the position that the citizens have the 2A right to have the same guns that soldiers and cops have, then I am not sure that EMP is an issue. When and if smart guns are developed which are good enough for soldiers and cops, they'll probably be good enough for ordinary citizens as well.


"The cops are allowed to use smart guns, therefore I should be allowed to use smart guns too."

vs.

"The cops have decided that they prefer not to use mechanical guns, therefore I have no right to use mechanical guns."

These two propositions are not identical. A right for the citizenry to choose from the same selection of guns that the government chooses from, is much more extensive than a right for the citizenry to use the same guns that the government has chosen to use.
2.4.2009 12:58pm
AndyinNC:

The likelihood of an EMT only attack is vanishingly small -- the only powers capable of such an attack wouldn't be crazy enough to limit themselves to EMT nukes if they were going to nuke us, and EMT would be the least of our problems if all out nuclear war occurred.

I too am not worried about the threat of attack from Emergency Medical Technicians, though they can be quite surly if they've been on shift for 20 hours straight.
2.4.2009 1:05pm
John Moore (www):
Several issues to be clarified:

1) The assertion that the likelihood that you will need a weapon even in the event of an EMP attack is low.

This assertion commits the same fallacy that got us into the current financial crisis: that the probabilities are independent, which they are not. In the event of a high altitude EMP attack (HEMP), there would very likely be substantial civil disorder and firearms are thus much more likely to be needed.

2) The assertion that the risk is too low to worry about.

An HEMP attack requires the following:
-The ability to build or acquire any kind of nuclear explosive (see below)
-The ability to put that weapon at high altitude over the US
-The will to do so given the inevitable nuclear retaliation

The first two conditions are probably already met by North Korea, and Iran's launch of a satellite plus it's rapid work on HEU uranium enrichment means that it may only be a year or two from having the capability. It is easier to deliver an EMP weapon because it does not require atmospheric re-entry. Obviously the major nuclear powers already have the first two.

The third condition is much less likely. It requires a nation to be suicidal (or, perhaps more probable, to lose control of a weapons system to a zealot).

Does anyone want to take bets on the US remaining free of #3 in the future?

3) It is not true that a large nuke is required for EMP. The HEMP effect is proportional to the square root of the yield, and (I believe) is also higher for fission nukes (because of their construction) than the higher yield thermonuclear weapons.

4) It is not true that HEMP only effects long wires. HEMP has very high frequency components in it such that it can use very small "antennas" to get into equipment. This is unlike lightning, which is otherwise a common natural source of more localized EMP.

5) While HEMP is dependent directly on the effects of the nuclear reaction, it can be simulated with small, portable EMP generators. These involve the temporary creation of a large magnetic field in a solenoid, which is abrubtly destroyed by a high explosive. The result is EMP that is effective up to some range, where the range is dependent more on the characteristics of the targets than the size of the device.

Note that Sandia Labs has a large facility where they accurately simulate HEMP on structures and large aircraft.
2.4.2009 1:36pm
Fub:
Plastic wrote at 2.4.2009 10:58am:
The real risk is not a widespread EMP attack, but rather the risk of being able to disarm law enforcement (and kill their radio and phone) with a simple hand-held device. An electronics hobbyist can make a small EMP or microwave emitter that could knock out unprotected circuitry pretty easily, and with such great incentive they'd become very popular in the black market.
I agree that a hobbyist conceivably could design and build a powerful EMP emitter. That just requires a spark gap in a resonant cavity, a waveguide, and a honking powerful ideal current or voltage source. I take issue with the "small" and "hand-held" parts though.

Directed EMP weapons from conventional (ie: non-nuclear explosion) sources were researched post-WWII. The point was to toast radar and radio receiver RF sections. They weren't small, or very practical either.

Sure, one can discharge beaucoups Farads worth of high voltage capacitors across a spark gap fast enough to generate the pulse. But you're talking many e-flat double clutching semi-trailer truck sized capacitors. And you definitely don't want to hold the spark gap cavity and waveguide in your hand when you fire it.

Making a 100KV rated 1-Farad capacitor that is small enough to be hand-held is unlikely to happen soon, if ever, but it would be a useful first step toward a "hand-held" EMP weapon.
2.4.2009 2:22pm
Bad (mail) (www):
I'm more worried about police officers not having transportation in such a situation than weapons. I would think that in such a situation, shotguns would be a lot more useful than handguns in any case, and actually getting from point A to point B and having some sort of effective alternative communications network would be the biggest problem. Most of the life-threatening situations officers are going to deal with in such a case are either going to be crowd control/riot/looting based (in which case handguns are less important than riot weapons, shotguns, rifles) or emergency and disaster response that doesn't involve weapons at all, but at which transport and communication become extremely important. If I were spending money on this stuff, that's what I'd look into rather than elaborate smartgun systems.
2.4.2009 2:25pm
Bloodstar (mail) (www):
How about Non-Nuclear EMPs?

You don't have to have a nuclear strike to take out electronics.
2.4.2009 2:33pm
Fub:
Bloodstar wrote at 2.4.2009 2:33pm:
How about Non-Nuclear EMPs?

You don't have to have a nuclear strike to take out electronics.
The methods outlined at the link are ingenious and feasible, for some values of feasible. None are likely (and the article didn't imply) to be feasible in the sense of anything remotely close to a "hand held" weapon.

Among the issues are energy density of real explosive materials, dielectric capabilities of real materials, current carrying capacities of real materials, strength of real materials, heat conduction of real materials, melting point of real materials, and the like. Think of the problem by a simple but imprecise analogy:

Pretend you could build a magical handgun and cartridge that imparted to a small arms bullet the same amount of kinetic energy that a 16-inch battleship gun imparts to its projectile. Would you want to hold it in your hand and fire it? Would you even want to stand near somebody firing it?

I don't think so.
2.4.2009 4:21pm
celticdragon (mail):
I haven't heard of any realistic scenarios regarding a widespread (e.g., nuclear) EMP attack in this day and age. So why not set that issue aside as entertaining but unrealistic speculation?


Check out the issue of Popular Mechanics from September 2001 (of all things...)

The article gave a rather detailed description of how a conventional EMP weapon works, as well as a cut-away drawing. Helpful, huh? Something to do with filling a tube with plastique, and wrapping the tube in copper coils connected to a capaciter and a bank of very highly charged batteries. When the copper tubes are energized, the bomb can then be exploded starting from one end, creating a rapidly compressed EM field. The weapon is directional in nature. Also, it is cheap.
2.4.2009 4:23pm
Bill McGonigle (www):
I think David Friedman made an excellent point in the other thread: if you're trying to stop something that occurs with a 1/500,000 chance, then is it inappropriate to consider an unintended consequence that may have a 1/500 chance of occurring?

One could argue that there's a 1/1 chance of a child being accidentally killed by a firearm each year, but if you're considering the affected population as a criteria you also have to factor in the number of handgun owners in the US. So, 1/500,000 * 100 = 1/5000 and 1/500 * (300M Americans * .37 households with guns / 2.2 people per household *.74 handgun owners ) - well, it's a much bigger number.

To those who would argue that we could spend all day dreaming up hypotheticals - if that's a problem the bill is probably ill-conceived in the first place.
2.4.2009 4:24pm
deenk:
Will police need firearms after a limited nuclear attack?
As central authority will be disrupted, police officers will largely be reduced to the level of average citizens.

I have a "Nuclear Preparedness" booklet put out by the Department of Defense that contains a useful table saying what items one should carry after a nuclear attack.

Items to bring include paper money, deeds, and birth certificates.

Items to leave behind include firearms, alcohol, and drugs.

The fact that these latter three items are the most important things to bring is irrelevant.
2.4.2009 4:48pm
Gabriel McCall (mail):
As central authority will be disrupted, police officers will largely be reduced to the level of average citizens.


I disagree. Power abhors a vacuum. Given a breakdown of central authority, the best-armed and best-organized power structure is likely to become the defacto government, and I suspect that there are quite a few places where that'd be the police.
2.4.2009 5:09pm
D.R.M.:
Iran just successfully tested an ICBM-equivalent platform, by launching a satellite.

Iran will, under relatively conservative estimates, have enough highly-enriched uranium for a number of fission bombs before the first practical/reliable/economical smart guns are available.

Low-yield fission weapons have relatively large E1 and E2 zones compared to high-yield theromnuclear devices, though E3 more strictly scales directly to total yield.

Of all the ways to use nuclear weapons, EMP attacks, while disruptive and damaging, are the least likely to be seen to justify a city-annihilating response, and thus pose the least risk to the attacking state. Accordingly, an EMP attack is actually one of the more plausible modalities for use of nuclear weapons by a minor nuclear power against a major one.
2.4.2009 6:52pm
Sergei Zhulik (mail) (www):
Eugene,

I think pure logic may prove the most useful way of answering your question.

Framework

1) X = Constitutional Right
2) X is presumpively violated by limiting freedom to do {adbc}, failing strict scrutiny
3) X is presumptively not violated by limiting freedom to do {efgh}, assuming a rational basis for the law

The question then often becomes whether specific limitation Y falls into subset {abcd} or {efgh}. In resolving this question, particular circumstances--no matter how peculiar--become relevant if their existence could change what would otherwise be an "e" limitation into a "d" limitation.

Where government regulation Y would result in a restraint on "d," despite normally operating as a restriction on "e," it is prima facie overbroad. But its Constitutionality isn't determined on this alone. Where such a Y exists, a level of scrutiny is triggered proportionate to the likelihood the default "e" would indeed shift into "d". This is because of the practical impossibility of ever writing law Y to perfectly track enabling {abcd} and excluding {efgh}, coupled with the government interest to carve out these two mutually exclusive subsets in a workable way.

Example

An analogy is useful.

1) X = Free speech
2) X is presumptively violated by restraining political speech (d).
3) X is presumptively not violated by restraining speech inciting imminent lawless action (e).
4) Y = Law = Upon Congressional declaration of war, any speech in support of the pertinent adverse force when a) directed toward a particularly receptive audience, and b) communicated in an incendiary manner, is hereby unlawful.

Here, Y operates in such a specific way, under such extraordinary circumstances, that it would more often serve as a restraint on "e" than "d." However, it is not inconceivable that those fire-and-brimstone fascist radio reverends during WWII would be prosecuted too. Clearly, then, Y isn't always a pure limitation on "e"--it could spill over into limiting "d."

In this case, though, we're not analyzing a law like prior restraint on the Times, or shouting "fire" in a crowded theatre. These are purer "d" and "e" laws respectively. Only strict scrutiny could save the former, and only something like a new understanding of the word fire (or a change in the public's response to its invocation in a theatre) could condemn the latter.

So, Y's constitutionality hinges on whether its facial overbreadth is justified. And the degree of justification necessary to save it relates to the degree of overbreadth, as ascertained by the likelihood otherwise protected speech would be implicated. We enter a sort of twilight zone, where the scrutiny triggered is spectral.

As Applied to Smart Guns

1) X = Right to bear arms
2) X presumptively guards against limitations on arms-related self-defense, failing strict scrutiny
3) X presumptively does not guard against limitations on arms use that purely enhance their safety as tools for said defense.
4) Y = Smart gun mandate (assuming smart guns are reliable save for EMP attack).

Under the framework above, the possibility of an EMP attack is relevant, but only to the (rather attenuated) extent it will come to bear. Let's face it: EMP attack, Y becomes a restriction on self-defense; No EMP attack, Y is a rather pure exercise of permissible arms safety. The scrutiny under which Y is examined is thus not entirely deferential to Y's enactors, but neither is Y so overbroad as to subject it to a heavy presumption thereagainst.

Thus, Y's Constitutionality is a close question. But as an EMP attack seems rather unlikely, and the lives saved/injuries prevented by such a mandate is, admittedly, rather compelling, I would have to come down on the side of its permissibility under the Second Amendment.

Any thoughts?
2.4.2009 8:12pm
pintler:

and the lives saved/injuries prevented by such a mandate is, admittedly, rather compelling


A couple of people have said this, which raises the question - how many lives saved makes something compelling? Is it the proverbial 'if it saves one life...'?

Does the cost (lives saved per dollar spent) matter? If not, how should we choose among different ways to spend dollars to save lives? Does it matter if we could save more lives by spending the same amount in other ways?

The economics matter - if you replace 1% of the extant guns (to simplify, let's say 200M total) per year, and a smart
gun costs only $20 more than a dumb one, that's $40M per year to save 100 lives, or $400K per life saved. You can use other estimates for lives saved and cost, but for at least some reasonable guesses, there may be more lives to be saved by investing the money in other ways.
2.4.2009 10:49pm
Eli Rabett (www):
Eli takes it this is an attempt to outlaw tasers so they cannot defeat the second amendment. Now THERE is an EMP you can believe in
2.4.2009 11:28pm
ll (mail):

Aluminum-foil hats to protect from the aliens/our satellites from reading your mind, are pretty effective faraday cages.


They have the opposite effect.

On the Effectiveness of Aluminium Foil Helmets: An Empirical Study

Ali Rahimi1, Ben Recht 2, Jason Taylor 2, Noah Vawter 2
17 Feb 2005

1: Electrical Engineering and Computer Science department, MIT.
2: Media Laboratory, MIT.

Among a fringe community of paranoids, aluminum helmets serve as the protective measure of choice against invasive radio signals. We investigate the efficacy of three aluminum helmet designs on a sample group of four individuals. Using a $250,000 network analyser, we find that although on average all helmets attenuate invasive radio frequencies in either directions (either emanating from an outside source, or emanating from the cranium of the subject), certain frequencies are in fact greatly amplified. These amplified frequencies coincide with radio bands reserved for government use according to the Federal Communication Commission (FCC). Statistical evidence suggests the use of helmets may in fact enhance the government's invasive abilities. We speculate that the government may in fact have started the helmet craze for this reason.
2.5.2009 12:23am
Uncle Pinky (mail):
On a lighter note, I'd bet that this is the first law blog to ever be the number one Google result for "sex-starved velociraptors."

Oddly enough, I'm hoping it won't be the last.
2.5.2009 1:26am
JHU BME:

Is there some inherent reason that such speculation is (1) proper for evaluating the merits of spending programs, but (2) not proper when evaluating the constitutionality of regulatory programs (in the course of determining whether the programs excessively burden the exercise of constitutional rights)?



No, because spending programs are a curtailment of constitutional rights (i.e., property rights). These property rights are the prime reason why we would choose not to spend money (as a policy), with the close-second reason being that we think the spending would curtail some other right. So, if it's ok to speculate when property rights (the right to keep your money) are at issue, then it should be proper to speculate when the right to bear arms (the right of self-defense) is at issue. If property rights are "weaker" rights (subject to less scrutiny), and the self-defense right is a "stronger" right, then that might suggest an even greater need to speculate about deprivations of the latter.

In fact, there is probably some calculus along the lines of determining a threshold for:
strength of right (cost of deprivation)
X
likelihood of speculative circumstance arising (roughly, benefit of spending/regulation)*

*another term might be added, namely, presumed effectiveness of spending/regulation in averting/mitigating the circumstance

Thus, for a strong right like the right to self-defense, more speculative considerations are reasonable to take seriously (but, each should be considered, if only just to heuristically determine if the likelihood is any greater than infinitesimal). And, for a weaker right, like the right to your hard-earned (or un-earned) money, the threshold for the likelihood of the speculative event is higher, in terms of what should be given serious thought.

However, it might be argued that the purpose of the spending is to avert the possibility of the speculative scenario that would lead to the greater deprivation. In the calculus for the EMP/smart gun case, the benefit of the anti-EMP spending would include some of the benefit of the smart gun mandate, since it would reduce the probability that, simultaneously, smart guns are disabled and self-defense is necessary (since, for example, the anti-EMP spending might protect infrastructure, thereby reducing the likelihood of civil disorder). As such, the smart gun mandate could be maintained as a result of the anti-EMP spending. This, though, brings up a counter-argument for using this line to say that spending policy can heed speculation, but rights protection cannot.

If one of the purposes of the spending is to prevent the deprivation of rights in the speculative scenario, then, in order to accept the spending (on this line of reasoning), the scenario must be posed in consideration of the constitutional rights in the first place. That is, justifying the spending as obviating the need to speculate about the scenario with respect to self-defense, necessarily grants that it can be considered in the first place. For example, suppose the possibility of an EMP attack followed by civil disorder, resulting in smart gun inactivation justifies spending as a defense of the smart gun mandate (obviously, this is only a small fraction of the benefit, but say it's considered nonetheless). This means that the exact same harm in the exact same scenario is used to justified spending as might be used to justify overturning (or blocking) the smart gun mandate. To say that the latter is improper is to say that the scenario is to be considered when depriving citizens of the right to have money, but is not to be considered when depriving them of the right to have mechanical guns. The only case for this would be that the right to have mechanical guns is so trivial a right that it doesn't even bear mentioning when discussing a scenario that is brought up in the context of anti-EMP spending (this is conclusory, I know, but I'm running out of energy…the point is that spending money to prevent a particular problem might be ok, then it stands to reason that protecting the right to own mechanical guns to prevent the same problem might be ok, too…it should at least be proper to ask the question).
2.5.2009 6:31pm

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