Superpowers and the Second Amendment

Once again, this week I’d like to look at some material from the book The Law of Superheroes by lawyers James Daily and Ryan Davidson. We have already examined some Fifth Amendment issues and some Eighth Amendment issues in the world(s) of comics. Next up, it only makes sense to address where the Second Amendment might have something to say about the use of superpowers….

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., Superman’s heat vision, Havok’s plasma blasts). 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?

The Supreme Court has relatively recently addressed the Second Amendment in two cases: DC v. Heller*1* and McDonald v. City of Chicago.*2* 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 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.

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.”*3* This is a notoriously difficult sentence to interpret, but here is how the Court defined the individual terms.

“[T]he people” refers to people individually, not collectively, and not only to the subset of the people that could be a part of the militia.*4* “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 eighteenth century.*5* Interestingly, this suggests that defensive powers may also be protected by the Second Amendment, but for the sake of brevity we will only consider offensive powers as those are the kind most likely to be regulated.

“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.”*6* 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.*7*

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 regulate militia’).”*8* Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”*9*

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.”*10* Perhaps most importantly for our purposes, there is a valid, historical limitation on “dangerous and unusual weapons.”*11*

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

Regulating Superpowers as Weapons

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.

The Human Torch

“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? The answer is a qualified yes. The Constitution would not 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 gun safe in a home). The real objection is to concealed weapons borne on the person in public.

Thus, 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.

“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 more extensively.

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 our experience powers of all kinds seem evenly distributed between heroes and villains.

“Dangerous and Unusual Weapons”
Here we come to the catchall. Superpowers are certainly unusual in an historical sense,*12* 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’s 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.

Havok vs. Cyclops

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?

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, subject to the limits discussed in reference to the Keene Act.

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 have committed crimes — with or without using their powers — may be forbidden from using them or even be required to have their powers deactivated, if possible, in keeping with the Eighth Amendment issues discussed earlier. Following the decision in United States v. Comstock*13* it may even be permissible to indefinitely detain a superpowered criminal after his or her 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? This probably 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 others, then he could be required to undergo de-powering treatment or be incarcerated for the individual’s protection and the protection of society.

There may be an alternative to incarceration or de-powering. In the real world, specialized drug courts offer treatment and rehabilitation rather than punishment for nonviolent offenders. “Super courts” could work with institutions like the Xavier Institute, which aims to teach mutants to control their powers and use them safely.

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


*1* 554 U.S. 570 (2008)

*2* 561 U.S. 3025, 130 S. Ct. 3020 (2010).

*3* U.S. Const., amend. II.

*4* Heller, 554 U.S. at 581.

*5* Id. at 582.

*6* Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125 (1998) (Ginsburg, J., dissenting)).

*7* Id. at 591-96.

*8* Id. at 595 (quoting United States v. Miller, 307 U.S. 174, 178 (1939).

*9* Id. at 625.

*10* Id. at 627.

*11* Id.

*12* Not counting the Marvel Earth-311 continuity, in which superpowers appeared in the Elizabethan era. Neal Gaiman, Marvel: 1602 (2006).

*13* 560 U.S. (2010), 130 S. Ct. 1949.

There ya go! I feel a little better about using my superpowers in public, now. 🙂

P.S. As much as I’d love to discuss Second Amendment rights in general, I strive to keep real-world, political controversy out of this blog for the most part. So, if you comment below, please keep this in mind. Thanks!

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DUST, Code 8, and Miami Vice

Are any of you familiar with DUST? I discovered it the other day, when I came across this short video, based on a Dark Horse comic.

“Number 13”

According to its YouTube channel (which I have now subscribed to),

“DUST is the first multi-platform destination for binge watchable sci-fi. We feature science fiction short films and other content from emerging filmmakers with stunning visual effects, captivating plots and complex character explorations. Robots, aliens, space exploration, technology, and human experience are all a part of DUST.”

Sounds pretty cool! In fact, I’ve watched four more and they were all quite interesting and well done. Some very creative and talented filmmakers out there! I just hope I have time to watch more in the future. There’s a website, and you can subscribe to the newsletter and watch the videos from there, if you don’t want to subscribe to the YouTube channel.

I came across another short film, this one by cousins Robbie and Stephen Amell, who I am sure you are familiar with from “Arrow”, “Flash”, and other genre productions. This is a project they put together with a couple friends and got crowdfunded. The setting is “a world where 4% of the population are born with some type of supernatural ability. Instead of being billionaire superheroes, most ‘specials’ live in poverty and resort to crime, forcing the police to become more militarized.”

Follow this link to the short…

Via an Indiegogo campaign, they were able to fund a full-length movie which began production on June 1st, 2017. The movie’s plot involves “Conner Reed (Robbie Amell) [as] a powerful young man who is struggling to pay for his ailing mother’s medical treatment. To earn money, he joins a lucrative criminal world [through] Garrett (Stephen Amell), who works for a drug lord (Greg Bryk).”

They promise “robots, superpowers, and a ton of badass action.” You can find out more about it at code8.com. Current estimated release date won’t be until 2018, possibly that December.

In other news,… it looks like “Miami Vice” may get another reboot, this time on TV. Vin Diesel’s One Race Television production company (working under a deal with Universal TV) has teamed with Chris Morgan Productions to develop the new series for NBC. (Morgan wrote six of the “Fast & Furious” films.) As per Variety,

“Peter Macmanus will write the script, based on the original series. While executive producers haven’t been set, it’s more than likely Macmanus, Morgan, and Diesel will all serve as EPs, along with more staffers from One Race TV and Chris Morgan Prods….”

There have been many reboots in recent years, some good (e.g., “Hawaii Five-O” and “MacGyver” series) and some disappointing (e.g., Miami Vice and The Dukes of Hazard films). And more are on the way (e.g., “S.W.A.T.”). I have mixed feelings about the studios mining so much old material, especially when they rarely retain the quality or charm of the originals. And then they cancel good, new stuff (e.g., “Almost Human”, “A.P.B.”)!

The original “Crockett & Tubbs”

As for this particular effort, I’m not sure we know enough to hazard a guess at what it might be like. On the one hand, having action veterans Diesel and Morgan at the helm is a good sign. On the other hand, the original “Miami Vice” was an iconic, groundbreaking show, with an amazing cast and tone that will be quite difficult to match. I mean, realistically, how can you ever find another Crockett & Tubbs with the chemistry and easy coolness of Don Johnson and Philip Michael Thomas, or equal the quiet steeliness of ‘Lt. Castillo’ as portrayed by Edward James Olmos? Plus, much of the original’s identity is wrapped up in the music, fashion, and zeitgeist of the ’80s, such that I wonder if they’ll need to set the new series in the ’80s, too, just to give it a fighting chance.

At this point, I guess I’ll just say that I am curious and hopeful that they can at least put forth a decent product, even if they can’t quite capture the feel of the original.

P.S.  Here’s a fun article — especially for those of us old enough to remember watching the show — re some “Miami Vice” guest stars: “20 Huge Stars You Didn’t Know Were On Miami Vice”.

P.P.S.  There is a connection between the latter two items, btw. Sung Kang, who you will remember from a few of Diesel’s F&F movies, appears in Code 8.

If I Could Have a Superpower…

Have you ever wished you had superpowers?

Silly question. If you are reading this blog, chances are that at some point — whether in childhood or earlier today or anytime in between — you thought it would be awesome to have some superhuman ability. Superspeed like the Flash, or telepathy like Professor X, or X-ray vision like Superman/girl could all come in handy in the course of your day, whether at school or work or home or… just about anywhere. Of course, if you’re like me, you’ve also imagined patrolling your city/town/neighborhood, maybe while wearing a cool costume/uniform, using your powers for good (hopefully).

little-superheroesSuperhero geek that I am, I was thinking about this again the other day and decided to come up with my personal “Top 5” wished-for superpowers. Not some god-like abilities of destructive power or matter-energy manipulation, but more “average” powers with some sensible limitations. I also avoided things like martial arts and detective skills, since those are abilities that normal humans can gain on their own. A couple of them were easy, but the rest required a bit more thought. Here’s what I came up with:

1) Superstrength: Ever since I started reading superhero comics and watching shows like “The Six Million Dollar Man”, I wanted to be superstrong. I just thought it would be so cool to have the sort of physical strength that could not just beat up bad guys but benchpress large vehicles, rip trees out of the ground, and dig/punch my way through a mountain to save the damsel in distress — or trapped miners. Whichever. Such dreams are not uncommon for skinny, nerdy, unpopular kids like myself. (Ever wanted to teach a bully a lesson?) I’d still like to have superstrength, of course, assuming I could control it and that I wasn’t built like too much of a freak. Twisting crowbars into pretzels and stopping a speeding truck in its tracks are always impressive demonstrations, not to mention intimidating to criminals of various sorts. Yep. This is my #1 wished-for superpower.

2) Invulnerability (aka Superhuman Durability): This particular “power” often accompanies superstrength, sometimes in a rationally connected way (e.g., unusually dense organic tissues) or just ‘cuz the creator thought it would be cool/helpful. But, the two abilities don’t necessarily go together. Obviously, my preference would be to have both. On the other hand, it might be interesting to have some sort of power that granted me a measure of invulnerability — say, from bullets, knives, explosives, etc. — but without any enhanced strength. This could come in the form of an energy field surrounding my body that kicked in within nanoseconds of any ballistic type of threat. (Of course, in this instance, I’d still be vulnerable to slow, up-close attacks.) This ability would come in quite useful for search-n-rescue work, and it would minimize my budget for band-aids and stitches. (An acceptable alternative would be superhuman regenerative abilities.)

3) Flight: Right up there with superstrength, I’ve always thought it would be very cool to be able to personally fly, especially unaided by technology. Used to have actual dreams where I did, though sometimes it was more like “leap(ing) over buildings in a single bound.” Along with the actual flight ability, I would prefer to have other anatomical alterations that allow me to breathe at high speeds and altitudes, and it would be nice if I didn’t need to wear goggles to protect my eyes. Yeah, zipping around through the skies would be pretty sweet! But, as a superhero/adventurer, I would need some other abilities and/or technology to be truly effective. Also, I wouldn’t want to be limited to just moving at a few miles per hour. The faster, the better! And, speaking of fast…

04_11_superheroes_1000x10554) Superspeed: Who wouldn’t want to be able to outrace a train… or a speeding bullet (ave. 1700 mph)… or even approach the speed of light itself? Of course, along with the ability to run (or fly) at such speeds comes associated enhancements like superfast reflexes and a brain that processes information many times faster than normal. Think how many people you could save, how many crimes you could stop, how productive you could be! That’s why it is sometimes frustrating to watch “The Flash” on TV; the writers don’t take creative advantage of the character’s full abilities. (But, I don’t want to get off on a tangent about the show.) As with superstrength, it might take a little while to learn to control the speed powers and adjust to living an otherwise “normal” life, especially if my body’s natural state was no longer in sync with the rest of the world. But, if Barry Allen and Wally West can figure it out….

I’m torn between the next two, so I’m calling it a tie for #5:

5) Shapeshifting: Some people might prefer to have super-stretchy powers like Mr. Fantastic or Plastic Man, since they can often “morph” into different, complex shapes. But, I would prefer something along the lines of what Martian Manhunter does. Namely, he can alter his body’s shape and features to mimic just about any person or creature, ranging in size from a fly to “enormous sizes comparable to skyscrapers”. MM is also quite adept at imitating the behavior and mannerisms of those he mimics. (I haven’t figured out how he alters his clothing, too.) This ability would prove quite useful, particularly in detective work and in going undercover, not to mention avoiding cops, press, bad guys trying to hunt me down, etc. I imagine shapeshifting could be a lot of fun at parties, too.

5) Telekinesis: A very literal example of “mind over matter”… the ability to lift, push, pull, and otherwise manipulate matter — solid, liquid, gas, maybe even plasma — via conscious, directed thought. Regardless of how one might explain such an ability, I’m sure you would agree that it would be very cool to have it. Someone once said, “Criminals are a superstitious, cowardly lot.” I think I could scare a few into thinking they were encountering a ghost or demon or something. On the other hand, it might be more satisfying to simply batter them with heavy objects while maintaining a safe distance. Either way, telekinetic abilities would be quite useful on many occasions, whether foiling the plans of a criminal overlord or pranking some jerk who used two parking spots for his sports car.

Any one of these would be amazing to have, but multiple powers would, of course, be fantastic! Not sure I’d want to risk an “origin story”, though. Unless you’re “born that way”, those can be rather painful. I’d also prefer to continue looking human, thankyouverymuch.

What about you? If you had a choice to gain one or more superhuman abilities, what would they be?