Electromagnetic Pulse and Smart Guns:

By Eugene Volokh on February 3, 2009 7:41 pm

I blogged about this nearly six years ago, but I thought I’d mention it again, especially since I have to decide whether to mention this in my forthcoming article on how courts should implement the right to bear arms. I’d love to hear what people thought about this subject more generally, but in particular it would be useful for me to know: Do you think that a law review article section on the right to bear arms and “smart guns” mandates should mention these risks? Or are they the sorts of risks that are too low or too uncertain to consider in such analyses?

Assume that smart gun technology does really develop to the point where, setting aside the risk of electromagnetic pulse, a smart gun is roughly as reliable and as costly as a comparable purely mechanical gun. Also, let’s focus solely on the right to keep and bear arms in self-defense, and set aside the right to keep and bear arms as a possible deterrence to government tyranny; to make my article manageable, I am focusing solely on the self-defense side (and even so I’m at over 80 pages).

In any case, here’s the issue:

1. A high-altitude nuclear detonation can generate an electromagnetic pulse that will basically destroy unshielded electronic circuitry in line of sight — potentially over hundreds of thousands of square miles. There has also been talk of e-bombs, which are nonnuclear devices that could create an EMP over a much smaller area.

This, it turns out, is one of the little-known twists in the debate about “smart guns.” Smart guns, in theory, would only be usable by their authorized owner. This would be done using some technology, likely chip-driven technology — possibly some radio transponder that reacts to a special ring that the owner wears, or possibly even fingerprint recognition (though that would have been mighty quick and reliable).

I don’t support laws that mandate smart guns, chiefly because there’s no reason to think that such guns will be reliable enough any time soon. But I certainly see the advantage of such guns, as a means of preventing the 100 or so fatal gun accidents and the greater number of nonfatal gun accidents involving kids that happen each year in the U.S.

If I had a child, and smart guns were reliable enough, I might well be willing to spend some extra money to get a smart gun instead of my current dumb guns. And if (as I asked you to assume) such smart guns became generally about as reliable and about as costly as ordinary guns, I think smart gun mandates might well be constitutional under the theory that they do not materially interfere with the right to keep and bear arms in self-defense. I’ll have more to say with this sort of “substantial burden” inquiry when I blog about my article, but right now I’m too busy writing it to blog more extensively about it.

But the concern about electromagnetic pulses puts a different cast on things. Naturally, I don’t expect an e-bomb being set off in L.A. any time soon; but I also don’t expect a fatal gun accident in my house any time soon, since those are rare events, too. But I do know that there’s a nontrivial chance that in my lifetime, there will be some terrorist or military attack on the place that I live. When that happens, there might well be serious social disruption caused by the attack, and extra need for me to be able to protect myself and my family. It would be just the wrong time to be armed with something that used to be a gun but that’s now just an expensive lump of metal.

Naturally, this is just one cost that one has to consider — both in one’s personal buying decisions and in deciding what the constitutional rule ought to be — and as I mentioned the benefits of smart guns, if they become highly reliable, are nontrivial. Moreover, the cost might be minimizable, for instance if the guns end up being properly shielded (though I understand that creating such shielding is not easy, which is one reason that e-bombs are potentially powerful weapons), or if the guns are set up so that when the “smart” technology fails, the result is a working dumb gun rather than an inoperable one.

But I don’t think that we can just ignore this cost. We’ve generally lived our lives in environments of peace and civil order, but there’s no guarantee that this will continue; in fact, judging by recent human history, there’s reason to think that there’s a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down. And when that happens, we’ll both be in special need of personal defense weapons, and in special need of personal defense weapons that haven’t had their innards fried to a crisp.

2. When I blogged about this, Matthew Yglesias responded:

(Show Matthew Yglesias’s response, and my response in turn.)

Come on…a civil war [referring to my statement that “Is it really so unthinkable that there might be a civil war — full-scale, or local — in the next 50 years in the U.S., as there has been in other democracies, including our own?”]? And having a personal sidearm wouldn’t help you under many civil war scenarios. In our historical civil war, for example, the country split into two fairly well-defined subunits which then fought each other in a more-or-less conventional manner. And the sort of gun you’d keep in your house is hardly going to help you if someone starts rolling tanks down the street or dropping bombs on your city. Also note that for Eugene’s case to make sense here we would have to be in a scenario where civil war breaks out, fighting is taking place near your house, and an electromagnetic pulse has recently occurred in your neighborhood. The odds of any of these things happening is extremely small and the odds of them all happening are downright miniscule. I would also make the classic gun control point that in case law and order really did suffer a temporary breakdown, having a well-armed populace would make that scenario more rather than less dangerous even if you personally would be better off with a weapon.

Here was my thinking in response:

A. It’s easy to think of civil war as being limited to battles, when a sidearm won’t be that helpful. But of course that’s not the whole picture, is it? Civil war is one of the many scenarios I gave for when civil order will break down. Civil war, terrorist attacks, riots, and a variety of other conditions (even natural disasters) leave a trail of devastation, including devastation of the c vil order infrastructure (police response and the like).

Outside the battlefield there may be looting, pillage, rape, and butchery, not just by organized units but also by lone fleeing soldiers, and by civilians who see an opportunity while the civil authorities are attending to more pressing business. Look, this stuff happens to a small extent when there are hurricanes and riots — why wouldn’t it happen to a much larger extent when the area is convulsed by more organized rebellion or warfare?

B. Nor does it make much sense just to multiply the probabilities of civil war / rebellion / terrorism and electromagnetic pulse, as if they were independent. My original post pointed out that electromagnetic pulse bombs seem likely to become a tool of warfare. Over the decades, they, like other weapons, are likely to become cheaper and more widely available; they’ll become part of the customary arsenals of rebels and terrorists, precisely because they can disrupt the existing infrastructure.

One of the nasty things about organized violence is that it involves a bunch of nastiness happing at once, with different things feeding off each other. A rebellion which uses electromagnetic pulse bombs and thereby causes damage to infrastructure, which causes still more collateral damage (such as civilian plunder) — quite possibly part of the rebels agenda — which causes further strain on infrastructure which causes still more risk to unarmed civilians.

C. The classic response to the classic gun control point about how we’d all be better off if everyone was unarmed also applies here. First, a woman armed with a gun may well be safer against a rapist armed with a gun — especially if the police aren’t going to come help — than an unarmed woman against an unarmed rapist (though it obviously depends on the people involved).

Second, there are over 200 million dumb guns in the country. They’re not going away. If an electromagnetic pulse destroys my smart gun (because I was so smart and cautious that I traded in my dumb gun for the smart gun), the result won’t be unarmed me vs. unarmed attackers. It’ll be unarmed me vs. armed attackers.

(Hide.)

So let me ask again: Should considerations of such extraordinary threats, of an uncertain magnitude, be part of the policy analysis when it comes to smart gun mandates? Of the constitutional analysis?

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