Electromagnetic Pulse and Smart Guns:

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

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

In any case, here's the issue:

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

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

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

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

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

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

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

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

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

Related Posts (on one page):

  1. One More Question About Speculation:
  2. Speculation and Policy Decisions:
  3. Electromagnetic Pulse and Smart Guns: