Superpowers and the Second Amendment

Although some superheroes and villains have powers that are harmless or at least not directly harmful to others (e.g., invulnerability, superintelligence), many have abilities that have no or only limited uses apart from harm (e.g., Cyclops’ optic blasts, Superman’s heat vision).  Although the government may be limited in its ability to discriminate on the basis of mutant status or innate superpowers, could the federal government or the states regulate superpowers as weapons without running afoul of the Second Amendment?  I think the answer is a very qualified yes.

(Before we begin, note that I’m limiting this to innate powers; it seems obvious that superhero gadgets could be regulated just like mundane weapons.)

The Supreme Court has relatively recently addressed the Second Amendment in two cases: DC v. Heller, 554 U.S. ___, 128 S.Ct. 2783 (2008) and McDonald v. City of Chicago, 561 U.S. ___ (2010).  The first case dealt with the District of Columbia’s ability to regulate firearms, and broadly speaking the second case applied the same limits to the states via the Fourteenth Amendment.  In particular, Heller held that the District of Columbia’s ban on the possession of usable handguns in the home violated the Second Amendment.  From those decisions we can get a sense of how a comic book universe court might address the issue of superpowers-as-arms.

I. The Scope of the Second Amendment

First, let us begin with the text of the 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.”  Here is how the Court defined the individual terms.

“The people” refers to the people individually, not collectively, and not only to the subset of the people that could be a part of the militia.  128 S.Ct. at 2791.  “Arms” refers broadly to “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” and it is not limited to weapons in existence in the 18th Century.  Id. at 2791-92. Interestingly, this suggests that defensive powers may also be protected by the Second Amendment, but for the sake of brevity I will limit the rest of this post to a discussion of offensive abilities.

“To keep and bear arms” means “to have weapons” and to “`wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id. at 2793 (quoting Muscarello v. United States, 524 U.S. 125 (1998) (J. Ginsburg dissenting)).  Taken together, the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” but the right does not extend to any and all confrontations–there are limits. Id. at 2797-99.

The Court first addressed limitations established by past precedents: “the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id. at 2814 (quoting United States v. Miller, 307 U.S. 174, 178 (1939).  Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  Id. at 2815-16.

Beyond that, there are lawful limits on concealed weapons as well as “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Id. at 2816-17.  Perhaps most importantly for our purposes, there is a valid, historical limitation on “dangerous and unusual weapons.” Id. at 2817.

With the scope of the right established, let us now turn to whether the government could regulate superpowers under the Second Amendment.

II. Analysis

We may start with the presumption that a superpower may be possessed and  used for lawful purposes such as self-defense.  The question is whether a given power fits into any of the exceptions that limit the Second Amendment right.

A. Concealed Weapons

First, many superpowers could be considered ‘concealed weapons.’  Before the Human Torch shouts ‘flame on!’ and activates his power, he appears to be an ordinary person.  Could the government require a kind of Scarlet Letter to identify those with concealed superpowers?  I think the answer is a qualified yes.  I do not think the Constitution would tolerate requiring innately superpowered individuals to identify themselves continuously.  That would seem to violate the constitutional right to privacy and the limited right to anonymity.  Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gunsafe in a home).   The real objection is to concealed weapons borne on the person in public.

Thus I believe the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g. goes out to fight crime).  Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g. Superman, the Human Torch).  Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training.  It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

B. “Typically Possessed by Law-Abiding Citizens for Lawful Purposes”

Whether this limitation encompasses a given superpower may depend on the number of superpowered individuals in a given universe and the balance of lawful superheroes to unlawful supervillains.  If superpowered individuals are relatively common, which seems to be the case in the Marvel Universe, for example, and superpowered individuals are generally law-abiding and use their powers for lawful purposes then superpowers would seem to be protected by the Second Amendment. If, on the other hand, superpowers are very unusual or if they are typically used unlawfully, then the government may be able to regulate such powers.

It seems to me that in most comic book universes powers are both relatively common and normally used for good, suggesting that they do not fall under this exception.  However, if certain kinds of powers are more commonly associated with law-breaking, then perhaps those powers in particular may be regulated, though in my experience powers of all kinds seem evenly distributed between heroes and villains.

C. “Dangerous and Unusual Weapons”

Here we come to the catch-all.  Superpowers are certainly unusual in an historical sense (not counting the Marvel 1602 continuity), and they are unusual in the sense that in most comic book universes superpowered individuals are a minority.  But perhaps it is the nature of the power that counts.  If a superpowered individual is approximately as powerful as a normal individual with a handgun (though perhaps one with unlimited ammunition), is that really so unusual?

Wherever the line is drawn, it seems clear that at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’ optic blasts, Havok’s plasma blasts).  These are well beyond the power of weapons allowed even by permit, and their nature is unlike any weapon typically owned by individuals or even the police and military.

III. The Nature and Scope of Regulation

Given that some powers are likely to fall outside the protection of the Second Amendment, how could the government regulate them?  We’ve already discussed the issue of concealed powers, but what about powers that fall into the other two exceptions?

I believe the government would take a page from the way it regulates mundane firearms.  First, all possessors of potentially harmful powers could be subject to a background check if they did not have the powers from birth.  If they failed the background check, they could be forbidden to use the power (although use in self-defense might still be allowed by the Constitution).  A registration scheme would be likely (Note, this likely would not run afoul of the Constitution because it does not apply to all mutants or superpowered individuals, just those with potentially harmful powers).

Second, exceptional powers could be subject to a permitting system including more thorough background checks and training requirements.  Some powers could be expressly prohibited outside police or military use.

Third, superpowered individuals who committed crimes–with or without their powers–may be forbidden from using them or even required to have their powers deactivated, if possible.  Following the decision in United States v. Comstock it may even be permissible to indefinitely detain a superpowered criminal after their prison sentence was completed if it was not otherwise possible to prevent future criminal acts.

What about uncontrolled powers, for which merely forbidding the use isn’t enough?  I think this falls outside the scope of the Second Amendment and is closer to the law of involuntary commitment.  If a superpowered individual is a danger to himself or herself or others, then he or she could be required to undergo de-powering treatment or be incarcerated for their own protection and the protection of society.

IV. Conclusion

The Supreme Court’s current view of the Second Amendment, though politically contentious, would give superpowered individuals greater protection to keep and use their powers largely free from government regulation or interference, with some important limitations.

50 Responses to Superpowers and the Second Amendment

  1. If I take a martial arts class, and thus become better able to injure other people, can I be required to have a background check and be forbidden from using the skills if I fail the check?

    I don’t think that not carrying guns is a good analogy to not using abilities. We ban certain people from possessing guns–rather than banning them from using guns, or banning them only from using guns for violent purposes–because we think that possession will lead to use and that use will lead to violent use. Would we really conclude that, say, using your super-strength to lift trucks (using the gun for nonviolent purposes) would make it more likely you’d beat someone into a pulp (use the gun for violent purposes), to the extent that if you’re not licensed to use your super-strength violently you’re not allowed to use it at all?

    • That’s certainly a good argument, but I think that both James and I are operating under the assumption that there’s something a little different going on with superhero powers, specifically having to do with a post from a few days ago. In short, because super powers seem to be able to be transferred about to some extent in most superhero stories, i.e. stolen, borrowed, suppressed, generated, revoked, etc., they are are a little more like traditional weaponry than training in martial arts or strength gained from weight-lifting. Or, at the very least, their seeming portability is certainly an argument to be made for their classification as weapons. One can always reject that argument, but assuming it for the purposes of argument, you get an analysis much like the one above.

      Either way, the post sort of dances around the issue of whether or not the government could enforce such a regulation, even if it were constitutional to enact one. But that’s a big enough issue to be tackled elsewhere, and I have the feeling that’s only the beginning of that discussion.

      • Except many times, they’re *not* separable from the person, at least without essentially maiming said person. If you misused your wings to steal from penthouses, could the government mandate that those limbs be amputated?
        Absent an easy and non-harmful way of removing powers, requiring the equivalent of a concealed carry permit for those in possession of potentially harmful powers, would mean that anybody you denied such a permit would be prohibited from *ever* going out in public, at least without a big scarlet letter of a costume indicating the power. Denying certain people the right to have the powers at all, without a way of negating the powers, would make those persons’ very *existence* illegal.

      • I don’t think that’s true at all. Remember I made the distinction between concealed possession (akin to a gun safe in one’s home) and concealed carry (e.g. bearing a weapon / superpower in public with the intent to use it in case of confrontation, that is, going out to fight (or cause) crime). If someone’s power couldn’t be deactivated, then the government could simply prohibit the person from using the power, making its use a crime in itself. However, as I said, I don’t think that could extend as far as prohibiting its use in self-defense. If you are allowed to kill someone in self-defense then surely you’re allowed to commit what amounts to a firearms offense.

  2. I suggested that the law might allow outright prohibitions on use in three categories: dangerous uncontrolled powers, convicted criminals, and certain powers so inherently dangerous that they have no safe, legitimate use. I think you’re objecting to the second category. In that case I should be more clear that only certain convictions would result in a prohibition on the use of powers, specifically violent crimes. This is analogous to the circumstances under which violent felons can be prohibited from owning firearms.

    As to your martial arts example: no, but if you take marksmanship training classes you might be prohibited from buying a gun if you fail the background check. I don’t think inherent superpowers acquired later in life (e.g. mutant powers activating during adolescence) would be treated differently.

    • How could they not be? How do you *not* have powers that show up on their own? You choose to buy a gun; you don’t choose to get mutant or radiation accident powers. I can see laws against *using* such powers (although they’re hardly needed in addition to existing laws against assault and destruction of property), but not against possessing them if they’re inherent to your body. Would the law prohibit kids failing a background from hitting adolescence, so they don’t get their mutant powers?

      • There are a handful of superpowered individuals who intentionally took on powers. The Juggernaut, for example. As for the necessity of laws against the unlawful use of such powers: why do we have crimes like “unlawful use of a weapon” and all the other firearms offenses? Assuming the state and federal legislatures, in their wisdom, had a rational basis for enacting such laws, I think a similar basis could be found for similar laws regarding superpowers. Now, I’m not arguing for it as a policy position, but I believe it’s within constitutional limits.

        As for possession: I think the only time mere possession matters is a dangerous, uncontrolled power, at which point involuntary commitment comes into play. A superpowered adolescent with a criminal background might merely be prohibited from using a weapon-like power, not possessing it.

      • @James Daily:
        I took the original comment to be talking precisely about possession of powers. If your point is solely that there could be laws making the *use* of powers in a crime an aggravating factor or a crime in itself, I see your point. On the other hand, if it’s a power with multiple uses, like superstrength, I’m not sure I can see a law making it illegal for you to, say, change the tires on your car without a jack as being supportable, since the underlying act and use of the power aren’t objectionable to society in the slightest.

  3. “It seems to me that in most comic book universes powers are both relatively common and normally used for good, suggesting that they do not fall under this exception”

    I’m not sure I agree with this — doesn’t each hero generally have a rogue’s gallery worth of villains? Even with some degree of overlap, I feel like there are more villains than heroes, and that there are also a number of heroes who are branded as lawbreakers and, thus, considered “villains” by society at large (even though we the readers know better).

    • It depends. I’d say that the Marvel Universe is probably closer to my view and the DC Universe closer to yours. In the pre-M-Day Marvel Universe there were millions of mutants on Earth. I would be surprised if more than half were villains.

      • Wouldn’t most of the mutants have been neutrals? People with powers that are essentially useless and/or so minor as to be unnoticeable?

  4. I can’t agree with this analysis. Like the first commenter, I, too, thought about training as a martial artist as the more appropriate analogy. If you are limiting the analysis to inate abilities, which are NOW inate no matter how they were acquired, they would have to be considered part of their bodies. You could not regulate them or permit them any more than you could require a permit on making a fist. I’m a strong proponent of the Second Amendment, but I don’t think the right to bear arms comes into play unless you’re actually bearing (i.e. “carrying”) some kind of object which could be used as a weapon.

    Dealing with the offensive nature of inate powers should be dealt with using pre-existing criminal and tort law. A battery is a battery, no matter how big or strong (inate qualities which can vary greatly among individuals) you are.

    Interestingly, the true test of the government’s (at least the Federal government’s) ability to regulate inate superpowers may depend on the outcome of the lawsuit contending the individual mandate of ObamaCare is Unconstitutional.

  5. okay, I might be interested in picking your brains, because well, great nerds think alike.

    You see, I have been working on a novel for a while. yeah, probably never get published, but I will give it a shot.

    The idea was to create a super hero in a hyper-realistic world. It is literally an alternate universe where the only thing different is the fact he exists. And i try to cover his effect on everything. Foreign relations, our celebrity obsessed media, and even law.

    There were two major legal issues that i raised, as part of all kinds of action and adventure.

    First, he isn’t human. He’s an alien stranded on earth. That’s a big problem, because, well, the courts might interpret most of our criminal laws only to apply to humans. so if someone shoots him, its not murder. If someone steals from him… You get the idea.

    So that leads to a new question: can he be treated as human in the eyes of the law? Suppose congress passes a law declaring that he shall be treated as human. you might say “of course they can do that” but under roe v. wade, that is actually problematic. the court there reasoned that the fact the fetus was not a “person” made it unconstitutional to protect the fetus from being protected as a full human being. the government was allowed to protect the fetus as potential life, but the government was forbidden from treating the fetus as a person. and its hard to argue that an alien is a person, but not a fetus.

    Congressional leaders choose to solve this problem as an exercise of foreign relations. That is, in order to maintain good relations with his species, they were justified in extending the full protection of the law. But I recognize that might not actually work in the courts and portray it as iffy.

    Second, there is a point in the story when the NY Times learns of his secret identity and intends to publish it. At this point he is working with the government, so the government attempts to have the NY Times enjoined from publishing his secret identity.

    So you guys can see my email address attached to the comments (i think). Shoot me an email if you would like to geek out over the idea.

    • Most of our legal documents, including the Constitution, refer to persons, not humans as such. I don’t see a lot of problems with defining a walking, talking, reasoning, alien (especially if basically humanoid in appearance) as a person; the abortion debate doesn’t even really enter into it, since nobody’s ever said that fetuses don’t belong to the same biological species or possess anything other than human DNA, the debate has all been about whether they possess the characteristics of *persons*, not of *humans*, which of course they are.

      Now, citizenship and residency status may be quite other matters.

      • We considered people of African ancestry to be property and not ‘people’ in a legal sense for at least one hundred years. So I think you may want to alter your take on a ‘reasonable’ assumption that an alien is a person. If we can’t even decide those of our own race are ‘people’ then we likely will have a harder time with aliens.

  6. During 1989′s Acts of Vengeance crossover, the Marvel universe’s National Rifle Association opposed proposed legislation that would have introduced superpower/mutant registration (Fantastic Four #335). A representative who testified before Congress along with Susan Storm did so on the grounds that the Second Amendment’s protection extends to powers and that, like firearms, “if powers are outlawed, only outlaws will have powers.”

    (Despite this precedent, did the NRA show up anywhere during Civil War?)

  7. My co-workers and I have had many debates about this. Initially, I was against government regulation of superpowers on the principle that a significant portion of supers, acquired their powers without intent. However, after the issue of Typhoid Mary was raised (the historical one, NOT the fictional one), I had to concede that mandatory quarantines then were constitutional, and therefore the lack of intent in these situations is moot.

    I also took issue with the assumption that government intervention is needed because overall, society can’t trust their fellow (super)man to both control and use their super powers responsibly. While I still prickle at the ramifications of such an assumption, I’ve come around to the line of thinking that a group has a right to protect itself from individuals in ways relative to the reasonable dangers they pose. And when “reasonable dangers” includes the potential destruction of the Earth, I think society has the right to infringe on the rights of its members. No Earth = no society.

    • “I also took issue with the assumption that government intervention is needed because overall, society can’t trust their fellow (super)man to both control and use their super powers responsibly.”

      I apologize if I appeared to be making that assumption. My goal here was to work out the constitutional boundaries of government regulation of superpowers, not to advance a particular policy position that the government should (hypothetically) take.

    • Intent would only be moot in cases comparable to the original Typhoid Mary, i.e., uncontrollable powers with large destructive potential. As soon as somebody can actually decide whether to fire those eyebeams or not (whether innately or using assistive devices), intent matters again.

  8. I think the United States government would be more likely to keep track of people with powers by use of the draft registration law broadened to cover women as well as men. It’s non-discriminatory because everyone would be required to register and including a question and some tests designed to identify people who might be especially useful in time of war seems perfectly reasonable.

  9. Scott W. Somerville

    The question of WHETHER something is constitutional does not tell us whether it is wise. I think regulating superpowers is questionably constitutional and certainly unwise. Here are my reasons:

    EQUAL PROTECTION QUESTIONS

    There’s no equal protection problem when we forbid all people from owning nuclear weapons, machine guns, etc. But superheroes don’t “possess” their superpowers in the same way soldiers possess their weapons. Any law regulating superpowers might fall afoul of the “discrete and insular class” variant of equal protection law (Carolene Products, footnote 4).

    TORT ALTERNATIVE

    Let’s face it–supervillains are NOT the most compliant actors, while modern superheroes are always bending the rules for the best of reasons. Any government attempt to regulate superpowers will be ignored by the best and the worst of those who have them.

    Does this mean that superpowers are outside the law? No–just that they are poor candidates for prior restraint. Superpowers, like speech, are best punished AFTER they have been misused.

    The wisest way to regulate superpowers is AFTER THE FACT, under tort (or criminal) law. Assault, battery, malicious destruction of property, invasion of privacy and other torts should apply to the run-of-the-mill superpower. The tort model nicely avoids the problem of handicapping superheroes.

    If superpowers are outlawed, only supervillains will have superpowers!

    • I think this is precisely right. Power-as-weapon is the wrong paradigm. Power-as-immutable characteristic is the way superpowers would be viewed, particularly if people are born with them and/or they are passed down through genetics.

      The full quote from Carolene is that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Any superpower restriction or registration provision could violate the Constitution in all sorts of ways (confining to ghetto? You’re restricting freedom of travel and establish domicile! Required wearing of a “Scarlet S?” That’s a suspect class designation! etc. etc.) .

      So you have laws which violate the constitution that discriminate against “a discrete and insular minority” where the political process is unlikely to help. Forget the rational-basis inquiry that the author seems to be implying, I’d bet dollars to donuts this would fall at least under intermediate scrutiny, and more likely under strict scrutiny: infringement of a superpower users’ rights must serve a compelling government interest, must be narrowly tailored to achieve that interest, and must be the least restrictive means available to serve that interest. (SeeAdarand Constructors v. Pena, Loving v. Virginia, Washington v. Davis, etc.)

      • I have written a three part series on mutants and anti-discrimination laws on this very blog that you may be interested in. Indeed I came to the conclusion that mutants and other innately superpowered individuals likely do have a substantive due process right.

        But that’s a separate issue from the treatment of offensive powers. Inherent superpowers are unlike other suspect classifications. Being of a particular race or gender or the like does not give you the ability to leap tall buildings with a single bound or shoot lasers from your eyes. When it comes to offensive powers in particular, it is likely that government regulation could meet strict scrutiny (public safety is a compelling government interest, the regulation would be tailored only to mutants with dangerous powers, the regulation would be limited to a prohibition on use and thus be narrowly tailored and the least restrictive means possible (as opposed to, say, quarantine or forced surgery)). Not to mention that the Equal Protection Clause focuses on discriminatory intent, not disparate impact. Many laws could be rewritten to encompass superpowers without evincing discriminatory intent (e.g., redefining ‘firearm’ or ‘weapon’ to include offensive powers, reworking privacy laws to include telepathy and x-ray vision). The argument would be that the laws were aimed at particular powers, not mutant status per se.

        The Second Amendment gives an additional layer of protection for certain powers, especially if a conservative court refuses to recognize an equal protection or substantive due process claim.

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  11. In short, because super powers seem to be able to be transferred about to some extent in most superhero stories, i.e. stolen, borrowed, suppressed, generated, revoked, etc., they are are a little more like traditional weaponry than training in martial arts or strength gained from weight-lifting

    I’m not convinced of this, though. It’s true that there are several stories where powers can be suppressed, but it’s easy to suppress vision (blindfold), strength (tie you up), etc. That really doesn’t distinguish powers from natural abilities. The ability to transfer powers is not common, and one of the most prominent examples, Rogue, transfers memories and skills as well as superpowers–you really can’t use her as an example of how powers are different from skills. It’s also true that in superhero worlds there are quite a few examples of characters who can copy or transfer skills as well as powers, and there are even some who can only copy or transfer skills. Starfire learned English by kissing Robin and getting it from him; that doesn’t mean that the government can ban people with a felony conviction from speaking a particular language. Taskmaster can copy anyone’s martial arts style by watching them; that doesn’t mean that martial arts styles are now analogous to weapons and people can be banned from using them without a permit.

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  14. What is a weapon, legally?

    I would be surprised unless a weapon was defined, in part, as an object that can be possessed. This would rule out superpowers – they would not gain explicit protection under the second amendment without some sort of precedent that treated them as weapons.

    Treating superpowers of all kinds as weapons seems unlikely. There are some that cannot be reasonably used as weapons. Thus, this would require a determination (either individually or by class of power) that the superpower of an individual was considered a weapon.

    • The Supreme Court’s view of what counts as a weapon seems to be very broad. “Arms” refers broadly to “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” and it is not limited to weapons in existence in the 18th Century. Note “or useth” in addition to “wears” and “takes into his hands.” That suggests that it is sufficient to use something offensively even if it is not worn or held.

      Well, okay, that’s probably referring to something like a cannon, but I think the intent for broad coverage is there. You can’t fault the Framers for not including something about inherent superpowers. As I mentioned, defensive powers may also fall under the Second Amendment’s protection, so a power like Colossus’s armor may be constitutionally protected. I’m actually kind of surprised that many people are arguing that superpowers don’t count as weapons. If they don’t count as weapons at all then the Second Amendment affords no protection and the government’s regulatory power would be that much greater.

      No doubt not all powers fall under the Second Amendment. Passive telepathy (i.e. simple mind-reading, without the ability to cause injury or manipulate the minds of others), might be one example.

      • If they don’t count as weapons at all then the Second Amendment affords no protection and the government’s regulatory power would be that much greater.

        I’m not so sure of this either. To use a previous example, the government can ban people with a felony conviction from using guns. The government cannot ban people with a felony conviction from speaking Arabic, taking martial arts lessons or using martial arts, or jogging. (They can make those things conditions of parole, but cannot require them for people who have served out their sentence.) Although we supposedly have a constitutional right to keep and bear arms, it’s been nickled and dimed away to the point where guns have restrictions that would be considered violation of basic liberties if applied to lots of other things. (Imagine a law which put you in jail if you were accused of domestic violence–not even convicted–and practiced martial arts. Imagine a law which required that you get a license before running on the grounds that although running has innocent uses, you could rob someone and then run away from him. And if you want to compare this with driver licenses, note that it’s legal to drive a car without a license on private property.)

      • I’ll add this: since a power is an inherent part of someone, banning someone from using a power is like banning them from using a part of their body. I’m not aware of laws which ban someone from using part of their body for any purpose whatsoever, in the same way that a gun ban prevents someone using a gun even for target shooting. It’s always specific uses of the body part which are banned; you can have a law against punching someone, but a law which prevented you from throwing punches would violate the 4th Amendment right to be secure in your person. I’m not aware of laws which bar someone from using skills, either; it’s against the law to use your artistic skill to make counterfeit money, but it’s not against the law to use artistic skill, period.

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  16. “concealed carry (e.g. bearing a weapon / superpower in public with the intent to use it in case of confrontation, that is, going out to fight (or cause) crime).”

    Except it’s still concealed carry even if you have no intention of using the weapon, and that’s the position a superhuman denied a ‘concealed carry permit’ would be in – unless there was some way to disable the use of the power such that it couldn’t be used while out and about, or a way of indicating to the public that you possessed the power, a ban on concealed carry would be a ban on going out in public.

  17. I think that is a mistake to regard Heller and McDonald as static. Each represented a great leap forward after years of neglect. The next cases may show some continuation of that trend, or some retrenchment. Are the superheros being represented by alan guru, in a series of carefully chosen cases with sympathetic plaintiffs? Or are they cases where some prosecutor has chosen to go after an unpopular supervillian (a la al capone and tax evasion.)

  18. The thing which I find funny about this is that unless someone substantially changes the laws regarding concealed carry, most people with powers are going to start owning guns. Why’s that? Because most states require a marksmanship test to get a concealed carry weapon. It doesn’t matter if you want to be able to carry a gun, a knife, or a baton concealed, you still have to be able to hit that target 9 out of 10 times. My brother went through it to be able to carry a knife concealed.

    As regards martial arts, we went through all of the jokes back at the dojang about having to register our hands as deadly weapons and having to get concealed carry permits to wear mittens, but if you look at legal cases, there are some interesting aspects. A number of martial artists have gotten into legal trouble because the jury felt that either they should have been able to defend themselves with less force due to their training or because they should have warned their attacker that they were a trained martial artist. I’m personally in the “Better to be tried by 12 than carried by 6″ category, but it is something to consider.

    • But the scenario you describe only causes problems when martial artists use their skills to stop crime. Someone who is not allowed to have guns is not just forbidden from using them to stop crime. He’s not allowed to own them or to use them for any purpose whatsoever–even purposes that don’t harm people.

      If martial arts were treated like guns often are, not only would the martial artist have problems using martial arts for self-defense, he wouldn’t even be allowed to break a board in two or practice in the dojo without being arrested for illegal possession of weapons. Likewise for powers. Treating heat vision like guns means that if Superman fails to register it (or commits a felony) and then uses his heat vision to cook a hamburger, he goes to jail.

      Treating skills and powers like weapons, even weapons subject to the Second Amendment, means drastically reducing the individual rights of superheroes, compared to treating them as inherent abilities.

  19. I suppose it might be argued that when Superman used his heat vision, rather than using a concealed weapon, he was merely the victim of a physical disability which he had since birth (although it had only developed in his teens). As such, he should not be discriminated against in the modern day damsel-rescuing workplace, according to the Americans with Disabilities Act

    • For the purposes of the ADA, a disability is “a physical or mental impairment that substantially limits a major life activity.” Superman generally has complete control over his heat vision, so to the extent it is an impairment he could simply never use it. There may be some room in the ADA for some superpowered individuals, particularly some mutants, but that’s the subject of another article.

      • Would Cyclops’s laser vision then count as a disability? I would say that having to wear the most expensive sunglasses in the world counts as an “impairment that substantially limits a major life activity.”

  20. Pingback: Random Nuclear Strikes » Superheroes and the 2nd Amendment

  21. I would also toss my hat into the fact that the “inate” nature of super-powers makes a great deal of legal (and ethical) difference. There much evidence that we don’t live in the world described by Vonnegut in “Harrison Bergeron”. We don’t lobotomize the convicted leaders of complicated fraud schemes. When we find a young black-window guilty of de-fauding an elderly man or his family, we don’t require her to have a breast reduction. We don’t prohibit the violent from weight-lifting.

    Further, we have a real-world example of an inate skill that could be used for massive criminal or destructive ends: hacking. In fact, there is a very real chance that a dedicated hacker could cause super-villian level destruction (e.g. destruction of the power-grid, wall-street, etc.). Yet, we do not require particularly skilled computer professionals to reveal themselves, nor do we attempt to keep those whose criminal records were unrelated to their computer skills from exercising them. This is in sharp contrast to gun laws where a former criminal is often barred from possessing a firearm even if his crime was not gun related.

    Someone further up the page suggested that criminal use of super-powers would best dealt with after-the-fact and prosecutors in the real world would seem to agree. There has been limited evidence that skilled IT professionals are more closely monitored (say by the NSA) than other citizens but for the most part they are left alone unless they commit a crime. A few high profile hackers (such as Kevin Mitnick) have been barred from using computers as a parole condition, but again this was only after they were convicted.

    The Typhoid Mary case to me isn’t particularly compelling. You could probably already quarantine the person under existing laws where the pressing legal issue would be the reckless endangerment aspect (imagining some sort of lethal uncontrollable area effect). In some civilized countries it is illegal to knowingly expose someone to AIDS without telling them. In no civilized country are AIDS victims required to register themselves.

    The only reason I see for the treatment of super-powers to be different than hacking or AIDS would be the high-media profile colorful incidents would garner with the public. Keep in mind though, that both hacking and AIDs once captured the popular imagination enough in the 80′s that law enforcement agencies went wild and did things like ignoring the 4th ammendment. Eventually, culture got over it and cooler legal heads prevailed. The only reason I see to think differently might be that racism (in the case of mutants) might be stronger than hatred of homosexuals or suppression of nerds.

  22. Pingback: (Fictional) law of super-heroes

  23. This reminds me of the debate over serious child sex offenders. I believe the courts have had discussions about the legality of incarcerating them beyond the end of their sentence because they prevent a serious threat to society, and/or using chemical castration to remove the temptation to abuse children. In the case of supervillains, I think the chemical castration is an apt analogy. The courts would be well within their rights to order that Magneto undergo some sort of surgery to remove his magnetic abilities, if that were possible (and setting aside the issue of how do you operate on Magneto without using metallic surgical instruments).

    Regarding superheros – a better analogy than concealed carry might be open carry. Many states are Open Carry states, meaning you can carry a gun strapped to your waist without any legal restrictions. So, if Spiderman walks around in his costume which clearly identifies him as a superhero, then he’s using the equivalent of Open Carry. But when he’s in Clark Kent mode then he’s doing Concealed Carry. (And Clark Kent would have a lot of trouble getting a permit. The birth certificate would be tricky at best.)

    But – almost all states have restrictions on Concealed and Open Carry, so you cannot, for example, take guns into a school. Does this mean Spiderman can never set foot inside a school?

  24. I’m surprised Civil War hasn’t been more heavily referenced in this debate. The Superhuman Registration Act hands down treated both inane and acquired powers/skills as weapons, calling those capable of using such powers “living weapons of mass destruction.” The enforcement of the SRA is irrelevant to this particular debate, but the posited attitude of the government on the powers-as-weapons issue generally agrees with the original post.

  25. The Hulk takes this on about once every 2 years.

    If the government can subdue the Hulk, is it legal to keep Bruce Banner drugged or locked up to prevent the destruction that the Hulk is capable of delivering?

    When the Hulk is free–he saves the day and does lots of good for society. When some government group tries to control or limit him–things don’t go well for society. (WW Hulk).

    Babylon 5 had a similar discussion in regards to Psychics. The government, for the safety of the people, locked them away, drugged them into oblivion, or took away all their freedoms in order to be trained into an elite military type force.

  26. How about looking into the 8th Amendment about cruel and unusual punishment? The reason I bring it up is DC has the Phantom Zone and Marvel has the Negative Zone. These are/have been used as punishment for those guilty of crimes especially those with paranormal powers that conventional prisons couldn’t handel.

  27. Pingback: Would Superman Pass the Birther Test? | Mother Jones

  28. Pingback: Great read: Batman’s “Wayne Enterprises has massive anti-trust issues” | Saint Petersblog

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