Some supervillains (e.g., Gorilla Grodd, The Puppeteer) have the ability to control others through mental powers, hypno-rays, or the like. But if they forced you to commit a crime, would you still be liable? And would you have any claim against them? The short answers are no and yes, respectively.
[Note: ‘No and yes’ were reversed when this first went up. Law and the Multiverse regrets the error.]
Posted in criminal law, torts
In a prior post we discussed the first of the four privacy torts, intrusion. In this post we will move on to the public disclosure of private facts. In particular, we’re interested in whether the public disclosure of the private fact of a superhero’s secret identity would give rise to a tort claim. Unfortunately, in most cases it probably would not.
Posted in torts
This is the first in what we hope is a series of posts in which we answer questions from our readers. We always welcome questions and post suggestions, which you can email to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com. But before we get to today’s questions, I wanted to give a quick thank you to François Guy, who has provided this French translation and adaptation of our post on Batman and Patents. Now on to the mail.
Posted in mailbag
You might not know it, but Santa Claus has been a character in both the DC and Marvel universes, which makes him fair game for our blog. In this post we take a look at Santa and the law.
Posted in criminal law, property law, torts
Some superheroes like Batman and Iron Man are independently wealthy. Some, like Wolverine, seem content with a fairly rough and tumble lifestyle. But what about your everyday, working superheroes, the ones that have to take jobs on the side to make ends meet? Some, like Spiderman, may work a normal job held by their alter egos. Sometimes, though, superheroes take jobs that explicitly require the use of their powers. For example, in one alternate continuity, Colossus worked as a construction worker, a job for which his super strength was no doubt very useful.
But these are comic book superheroes, which we know are prone to losing their powers for a variety of reasons. What happens if a superpowered individual contracts around his or her powers and then loses them? Or what if Metropolis is attacked by a supervillain and our hero is called away to deal with it? The answer depends on whether the promised work is now impossible to perform.
In the real world comic book characters and their likenesses have been made into toys, video games, movies, television shows, lunchboxes, bed sheets, and innumerable other things. All of these secondary uses are mediated through intellectual property rights, particularly copyright and trademark rights. But if Superman were a real person, how might the situation be different? Could just anyone slap his image or iconic S shield on a lunchbox? What about uses that suggest that Superman endorses a product or service? (“Try Metropolis Brewery Beer, the choice of the Man of Steel!”) Or worse, what about revealing a superhero’s secret identity?
I. The Rights of Publicity and Privacy
Future posts will address copyright and trademark, but first we must address something that real people have that fictional characters do not: the rights of publicity and privacy. Unlike copyright and trademark, these rights are not intellectual property rights per se but rather rights derived from common law torts. In the United States the rights of publicity and privacy are primarily matters of state law. As you might imagine, much of the law is driven by the interplay between celebrities and the media, and the two states with the most well-developed case law are California and New York, although those are not the only states with right of publicity statutes. Nineteen states have general right of publicity or privacy statutes (CA, FL, IL, IN, KY, MA, NB, NV, NY, OH, OK, PA, RI, TN, TX, UT, VA, WA, WI). J. Thomas McCarthy, 1 Rights of Publicity & Privacy § 6:8 (2d ed.). Arizona has a specialized statute that applies to active and former members of the US armed forces, which may be useful for the many superheroes that are or were part of the military. Ariz. Rev. Stat. § 12-761.
The states that lack privacy or publicity statutes at least recognize the common law torts related to the right of privacy. McCarthy § 6:2. Usually this takes the form of Prosser’s four privacy torts of intrusion, disclosure, false light, and appropriation. See William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960). This post will consider intrusion, and the others will be addressed in future posts.
For this series we will primarily consider the common law of privacy. Only a minority of states have statutes, and they vary widely in their nature and scope. Even the six states that modeled their statute after New York’s refer to it only loosely. See, e.g., Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 747 (1980) (noting that “The statutory scheme of Massachusetts differs from that of New York.”). Since fully addressing the patchwork of privacy laws around the country could fill a book (and has), the common law approach lets us speak in general terms.
II. Intrusion
Prosser described intrusion as “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.” Prosser at 389. This has been described as “the right to be left alone.” Humphers v. First Interstate Bank, 298 Or. 706, 714 (1985) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 851 (5th ed 1984)). For a more precise definition we can turn to the Restatement (Second) of Torts, which gives three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person. See Mauri v. Smith, 324 Or. 476, 483 (1996) (applying the Restatement definition). Note that “intrusion into solitude appears to be based on the manner in which a defendant obtains information, and not what a defendant later does with the information, which is covered by the public-disclosure-of-private-facts branch.” Fernandez-Wells v. Beauvais, 127 N.M. 487, 491 (Ct. App. N.M. 1999).
From a superhero’s point of view, the main issues here are intrusion into his or her secret identity and secret headquarters, if applicable. The latter case is squarely within the scope of the tort (physical intrusion into a home or office is a classic example of the tort), so let’s focus on the issue of secret identity. In particular, does a superhero’s secret identity fall under the scope of the second element? And when we say “reasonable person” do we mean a reasonable regular person or a reasonable superhero, or does it matter?
The answer to the first question is probably yes. Courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place. See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”). As the definition states, the intrusion need not be directly physical and can include demands and threats. Phillips, 435 So.2d at 711.
The answer to the second question is that the offensiveness of the intrusion is judged by the standard of an ordinary, reasonable person, not a superhero. Prosser at 397. Further, “the intrusion must be of such a character as would shock the ordinary person to the point of emotional distress.” Roe ex rel. Roe v. Heap, 2004-Ohio-2504, 2004 WL 1109849 (Ohio Ct. App. 10th Dist. Franklin County 2004).
Taking all of that together, I think we can see that the intrusion would have to be pretty severe. Merely asking about or even forcifully demanding to know a superhero’s identity would probably not “shock the ordinary person to the point of emotional distress.” However, things like ripping off a superhero’s mask or demanding the answer at gunpoint likely would qualify, even if the superhero was impervious to bullets (remember the ordinary person standard). One way to consider it is: would an ordinary, reasonable person feel coerced into giving up his or her secret identity? Given the danger posed to a superhero and his or her family by exposure, such coercion would cause severe emotional distress.
Or consider the situation in The Dark Knight, where the Joker puts pressure on Batman to reveal his true identity by threatening not only Rachel Dawes, but random civilians. It is not hard to argue that a public figure of the sort that Batman had become in the film would reasonably feel coerced–Wayne would have revealed himself if Dent had not stepped in–by a threat like that one. So if anything, the unusual situation most superheros find themselves in, particularly those who are more-or-less explicitly dedicated to public service, the range of potential coercion adequate to ground such a tort would appear to be quite broad.
Even more, the scope of this tort is not limited to supervillains. A sub-plot of the movie involved a consultant threatening to go public with Batman’s real identity. While the Joker probably wouldn’t care all that much about being served with a civil lawsuit (Any volunteers for that job? No?), trying to blackmail someone like Bruce Wayne by threatening to go public is a spectacularly bad idea even aside from the “do-you-really-want-to-blackmail-Batman?” bit.
However, even if the assailant did not learn the secret identity or, if it were learned, did not disclose it, the elements of the tort would still be met because intrusion is distinct from disclosure. And even if the acts occurred in public, they would still be tortious because intrusion is not limited to particular physical places.
III. Conclusion
The intrusion form of invasion of privacy likely protects superheroes from highly offensive intrusion into their secret identities and headquarters, but not from more casual inquiries. Villains should think twice before demanding that Batman take off that mask.
Posted in intellectual property, torts
We have been featured in an article in The New York Times! Look for it in tomorrow’s print edition. A big thank you to all of our readers and the Times!
We’d also like to thank a few of the many sites that have featured us, including MetaFilter, Slashdot, Boing Boing, The Volokh Conspiracy, and Fark. Another thank you to our readers for sharing this site around the web! We look forward to bringing you more analysis and discussion of these critical legal issues, and we hope you have as much fun reading the posts as we do writing them.
Posted in interviews and podcasts
On this blog we have considered several ways in which superpowers, particularly innate superpowers, could be legally protected under the Constitution. But there’s more to civil rights than the Constitution. Congress and the state legislatures have also passed laws that go beyond the constitutional minimums. One of the most important of these is the Americans with Disabilities Act. Could the ADA be applied to superpowers? As is so often the case, the answer is mixed.
I. The Scope of the ADA
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 USC 12102(1)(A). Perhaps equally importantly, a disability can also simply consist of “being regarded as having such an impairment.” 42 USC 12102(1)(C). In other words, even if you aren’t actually impaired, it’s sufficient that you are discriminated against in violation of the ADA because you are regarded as being so impaired. (More on this later). Both of these definitions depend heavily on the meaning of phrases like ‘major life activity.’ Luckily, the statute goes on to define those terms as well in 42 USC 12102(2)(A-B):
“[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working….[A] major life activity also includes the operation of a major bodily function….”
Furthermore, all of these terms are intended to be construed broadly:
“The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter….An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability….An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active…The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures…” 42 USC 12102(4)(A,C-D) and (E)(i).
Armed with a sense of the scope of the ADA, let’s analyze whether it might apply to innate superpowers.
II. What Superpowers Qualify?
Right off the bat we can see that, in general, voluntarily controlled superpowers generally will not qualify as disabilities. It’s pretty hard for, say, the ability to fly to substantially limit a major life activity if you can simply choose not to use it. But not all superpowers are voluntary, and whether the power is continuous (like Rogue’s pre-Messiah Complex, involuntary power) or only poorly controlled (like Bruce Banner’s transformation into the Hulk) doesn’t matter because an episodic impairment still counts.
Rogue’s original, involuntary, lethal power probably qualifies because touching others seems like a major life activity. Certainly it is a common part of communication and many jobs (e.g., handshakes, receiving money from customers and returning change). Bruce Banner’s power definitely qualifies as it also frequently interferes with work and communication (“Hulk smash!”). Scott Summers’s power may also qualify. A slightly less serious example along the same lines is Moist from Dr. Horrible’s Sing-Along Blog.
Although Hank McCoy’s and Kurt Wagner’s physical appearances might not be considered outright disabilities, they may be discriminated against because they are perceived as being impaired, which fits 12102(C).
III. The Protections of the ADA
The ADA offers many legal protections to disabled individuals. In general, discrimination on the basis of disability is prohibited in employment, provision of public services, and in public accommodations and services provided by private entities. For the purposes of this blog post we will focus on employment discrimination.
The general rule is given by 42 USC 12112(a):
No [employer] shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
Straightforward and complete. However, there are important defenses to charges of discrimination. Most important are when discrimination is “job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation” and when a qualification standard includes “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” 42 USC 12113(a,b). Reasonable accommodation is a broad term, but it’s basically anything that isn’t an undue hardship (“an action requiring significant difficulty or expense”).
Since there are defenses, the natural question is “what can employers get away with?”
IV. Reasonable Accommodation and Undue Hardship
Two examples of powers that can almost certainly be reasonably accommodated are Rogue’s power and Cyclops’s power. For most jobs, Rogue could simply be allowed to wear gloves and other appropriate clothing. There are very few jobs for which Rogue could not be reasonably accommodated. Similarly, Cyclops could be allowed to wear his glasses or other appropriate headgear. He probably couldn’t be reasonably accommodated as an actor in a commercial for eyedrops or the like, but that’s about it.
Other cases are less clear. Bruce Banner would probably not be so well protected. His power would definitely raise the issue of “a direct threat to the health or safety of other individuals in the workplace.” Any work environment that involved close interaction with other employees, customers, or other sources of stress would pose a significant challenge if it could not be made into a telecommute position. In many cases there simply may be no reasonable accommodation for someone who turns into a rampaging giant at the drop of a hat.
V. Conclusion
Although most superpowers are not impairments, many superpowered individuals (particularly mutants in the Marvel universe) face discrimination despite the fact that they are not actually impaired. In addition, there are some superpowers that do impair their possessors. As a result, the ADA would protect many superpowered individuals from discrimination in several important areas of life.
Posted in civil rights
Comic book supervillains, like real world criminals, often form groups and work together to advance their nefarious schemes. The Legion of Doom, the Brotherhood of (Evil) Mutants, and the Evil League of Evil are examples of organized supervillain teams. With organization comes a price, however. Participating in these groups makes their members more vulnerable to criminal prosecution and civil claims under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO (there are also similar state laws). But before discussing RICO and its applicability to supervillain teams, let’s first consider why other theories of criminal liability may not be the best fit.
I. Aiding and Abetting
Aiding and abetting may be a route to prosecution of members of a supervillain organization that “aid, abet, counsel, command, induce or procure” the commission of a crime by another, presumably another member of the organization. 18 USC 2 (state laws are similar). The problem is one of proof. Unless someone (perhaps whichever villain was caught in the act) testifies as to the nature of the scheme or some physical evidence ties a given supervillain to the crime (e.g. a diabolical device with Lex Luthor’s fingerprints all over it) the prosecution may have difficulty proving that a particular member of the organization aided or abetted the commission of the crime.
II. Conspiracy
At first glance conspiracy seems a better fit, but like aiding and abetting it has problems in practice. Under US federal law, conspiracy generally requires an agreement between two or more people to commit an illegal act as well as for at least one member of the conspiracy to “do any act to effect the object of the conspiracy.” 18 USC 371. However, at common law conspiracy did not require an overt act, and some states and specific federal conspiracy statutes do not have that requirement; mere agreement is sufficient. See, e.g, United States v. Shabani, 513 U.S. 10 (1994). It may seem like conspiracy is a fairly easy charge to run afoul of, but that low bar is justified by a strong public policy against conspiracy, probably because agreement makes it more likely that the crime will actually be committed and because cooperation can make possible more heinous crimes than could be committed by a single person.
But although the bar is low, evidence of agreement is still necessary. Ordinarily this can be accomplished through informants, sting operations, surveillance, and plea deals that encourage conspirators to testify against each other. In the case of a supervillain organization, however, it may be difficult to arrange surveillance or a sting operation without a superhero’s assistance (e.g. The Invisible Woman’s invisibility or Superman’s X-ray vision), and that kind of close cooperation with the police raises other concerns. Informants are a possibility, but it may be difficult to offer a supervillain something valuable enough to warrant betraying his or her organization. And plea deals only work if a supervillain is willing to testify in exchange for something. A well-run supervillain organization may be able to enforce a ‘no snitching’ policy.
Conspiracy is most useful if the entire organization agrees to cooperate on a particular criminal scheme, but that agreement may be difficult to prove if not all of the members actually participate directly in the scheme (remember the problems with relying on other members’ testimony). If not all of the members participated in the conspiracy, or if their participation cannot be proven, then the organization can live on minus a few members, and in most comic books that means the roster will be filled out again within a couple of issues. What’s needed is a way to take down the entire organization at once, particularly the leadership, even if direct involvement in a given criminal act cannot be proven.
III. RICO
The problems with conspiracy and aiding & abetting are problems in the real world, too, especially when dealing with organized crime. For example, it can be very difficult to prove that a mob boss ordered a hit, especially if the members of the organization won’t testify. This was the inspiration behind the RICO Act.
In a nutshell, RICO allows prosecutors to charge members of an organization with racketeering if the organization has committed 2 crimes out of a list of 35 within 10 years (exhibited a ‘pattern of racketeering activity’). The individual members charged with racketeering must also have done at least one of the following (this is a broad paraphrase of 18 USC 1962):
As you can see, conspiracy has raised its head here as well, and in this context it is very useful as it stretches the already broad reach of the statute. Whichever way it is accomplished, racketeering is a serious charge carrying up to a 20 year prison term as well as the possibility of treble damages in an accompanying civil suit. For example, a member of the X-Men who was kidnapped by the Brotherhood of Evil Mutants could file a civil RICO claim.
Many of the crimes covered by RICO are inapplicable to a typical supervillain group (they don’t usually engage in bankruptcy fraud, for example), but several are likely to apply, including murder, kidnapping, arson, robbery, bribery, terrorism, and (federal) theft. For some of the underlying crimes (e.g. murder, kidnapping), it is sufficient for the crime to be threatened. Supervillain organizations frequently engage in many of those crimes.
It should be noted that in practice RICO is sometimes used against what you might think of as ‘proper’ organized crime groups or gangs, but it’s also sometimes used against more nebulous, loosely affiliated groups. In those cases it can sometimes be difficult for prosecutors to prove the existence of a criminal enterprise. That’s definitely not the case with groups like the Brotherhood of Evil Mutants or the Evil League of Evil. Not only are they a well-defined organization with a leadership structure and a headquarters, they’ve got ‘evil’ right in their names! It’s a prosecutor’s dream.
IV. Conclusion
RICO is clearly a danger to any traditionally-organized supervillain team. A few successful convictions for kidnapping or robbery by less capable members could lead to racketeering charges and civil suits against the entire membership. Forward-thinking supervillains might consider adopting a cell organizational structure that is more resistant to legal tools like RICO (and to infiltration by meddling superheroes)–or at least changing the group’s name to something a little less suspicious.
Posted in criminal law, supervillains
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.
Posted in constitutional law, superheroes, supervillains
