Eugene Volokh has a summary of the ruling from the 11th circuit. Eugene Volokh speaks of the entertainment value also, but a pipe bomb is a destructive device. You can have plenty of fun with things that go boom without making a destructive device. Just ask Joe. Of course, this is ignoring the “defense from tyrannical government” argument, which I think is important, but I think the government should have power to regulate explosive ordnance, or other items that have little use for self-defense, and pose an inherent risk to the community, no matter how responsible a person is.
20 thoughts on “Pipe Bombs Not Protected by Second Amendment”
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I’m not sure that’s a good argument to present. Who decides which items have little use for self defense, and which items pose an inherent risk to the community? Pipe bombs are almost always intended to kill multiple people at once, but that’s the same argument which anti-gunners use against machine guns.
I’m partly playing devil’s advocate here, and partly writing because I’m not sure of my own stance. It’s tough to come up with a case where someone would have pipe bombs for a legitimate purpose, but I feel the government should need to use them as evidence in a “conspiracy to blow up ” case, rather than make possession itself a crime.
Well, Heller would argue the fact that they are not commonly possessed for self-defense that they must not have much or have marginal use for that purpose.
But I think you can arrive at that conclusion because of the nature of the device. A pipe bomb is an explosive device that sends shrapnel in all directions. It’s difficult to see how you could use this to defend your home from an intruder. It’s also no difficult to see how the risk of an explosion of your cache could cause problems in a residential area, or cause great hazards for first responders, even if the homeowner did not have them to further an illegal act or enterprise.
Wouldn’t the first argument (not commonly used for self-defense) apply equally to most automatic weapons? Pipe bombs being illegal fits perfectly with Heller and other current laws, but those laws seem less than ideal to me.
There are so many things that pose a potential hazard to the residential area and first responders – compressed gasses for SCUBA, explosives for rocketry and other projects, or gunpowder. Is a hazard to first responders a sufficient reason for regulation?
The government also occasionally applies laws more broadly than their originally stated intent. If police raid a house in which a suspect lives, some nails in a can and gunpowder nearby could easily be a “pipe bomb” for their purposes.
So, if I kept a supply of gunpowder, some pipes, caps, and the other components for pipe bombs, separately from each other, in a residential area, wouldn’t this be an essentially equal fire hazard?
It is untrue to say that pipe bombs are a hazard no matter how responsible you are, just as ammunition is not.
I would think the least intrusive way to regulate DD’s would be to criminalize misuse and regulate where they can lawfully be used but not criminalize mere possession.
Given they are not particularly useful or common for immediate home defense in any reasonable scenario, also require they be stored in an appropriate explosion-proof container, away from accelerants, perhaps with a fire suppression system, etc.
Then the ability of the law-abiding to keep and bear explosives is not unreasonably infringed while balanced with the safety of the community at large.
This would essentially treat private possessors/users exactly as commercial demolitions companies are treated.
Whoulda thunk it, equal treatment under the law…
“but I think the government should have power to regulate explosive ordnance, or other items that have little use for self-defense, and pose an inherent risk to the community, no matter how responsible a person is.”
I understand you argument about protecting the community and such as well as your point about a pipe bomb not good for defense. However, for the sake of argument, lets say no one disagrees with you on these points. My question would be how the federal government would have the power to regulate them? What article would grant them that power?
You could argue that the 2nd amendment does not protect destructive devices but just because the 2nd amendment does not protect the infringement of destructive devices does not mean that the fed could then restrict them.
Perhaps a state government would be permitted to do so under their constitution but I do not believe that the fed can do anything they wish simply because something is not enumerated in the Bill of Rights.
“So, if I kept a supply of gunpowder, some pipes, caps, and the other components for pipe bombs, separately from each other, in a residential area, wouldn’t this be an essentially equal fire hazard?”
Fire hazard, perhaps. Depends on the explosive. Equal danger to the health and safety of the community? No. An explosive lit on fire next to a pipe will have no where near the lethal effects of the same explosive set off within the pipe. Without containment and proper initiation, the blast and fragment patterns would both suck.
“Then the ability of the law-abiding to keep and bear explosives is not unreasonably infringed while balanced with the safety of the community at large.”
Yes, but for many types of explosives and ordnance, the major things you need is space. You can’t ever really get enough of this in a residential area. The houses are too close together for even the lethal radius of a small munition and you’re surrounded on all sides by neighbors so there is nowhere to safety direct the explosion and resulting fragment/spall spray. It might be workable if you owned a farm, but there isn’t a way to do that on a quarter acre plot in housing development.
Funny.
Your arguments sound quite oddly familiar to a certain group.
VERY familiar to a certain group.
In Texas a spud gun is legal for “pyrotechnic display” uses but not for shooting projectiles. Because projectiles can hit things, but noises and flashes are fun. Texas law is quite sane in some ways.
I don’t know the laws about blowing up 2 liter Coke bottles with dry ice, but it sure was loud the one time I did so (many, many, many years ago) as a test for a Chemistry demonstration. Too loud to use indoors, to say the least.
How about other loud but innocuous things? Hydrogen balloons set off with a fuse go bang real well. Even powdered sugar or flour can make a cool fireball.
I would argue that harmless noisy fun, performed in a safe manner by sane, non-intoxicated, intelligent persons, is just fun.
Not everyone gets a BATFE license to use Boomerite, but to BOOM legally is indeed fun.
Farmers use expolisives for many useful purposes. Look up the history of dynamite. There used to gov’t publications that instructed farmers how to use expolsives to get rid of stumps,do ditches, irrigation canals or blow up rock.
Safety of the community is the same arguement that gun banners use. Careful where your thinking is going, Sebastian.
Also If I was going to rebel I would need such destructive devices same as guns and ammo.
The pipe is not used to cause damge just to provide the compression of the gases. Now ball bearing and nails can be used in conjuction with the pipe bomb. However ball bearings and nails are useful so I would not ban them because they can cause grievous harm if used incorrectly.
Lets ban the act not the tools.
Note that I’m not speaking of what is smart public policy, but rather what’s constitutional, within the framework provided by Heller, and where we can go from there. The Second Amendment is to have limits, whether you agree with that or not. Even from a legal theory point of view, not even considering Heller, it’s tough to argue that the Second Amendment is unlimited, applying to devices that can wreak destruction on a wide scale.
Even if you believe that the Second Amendment protects ordinary soldiering equipment like grenades, RPGs, etc, it seems hard to argue that the government doesn’t have a compelling interest in preventing them from being stored in residential areas, or have the power to regulate possession in the interests of public safety.
The government interest in regulation becomes considerably diminished when it comes to small arms. Small arms powder is typically not explosive, except for gunpowder, and there are regulations on how much of that you can have in your home which I don’t think in theory are inappropriate. There’s never been much of a public safety argument with small arms because they aren’t inherently dangerous. They take a conscious act by a user to cause destruction of life and property. Some explosives, under some circumstances, will cause their destruction without a conscious act, such as fire or shock.
And you also get into the fact that, whether or not you think the 2nd should protect the right to own explosive/grenades/etc. that there is really no way in hell you’re going to be able to sell that to the vast majority of the voting public.
Even making that argument is (no pun intended) giving the people who try to demonize gun owners as lunatics far too much ammunition to use against us.
That said, I wonder how long it will be before some twisted lawyer tries making the case using that ruling to justify banning the purchase of powder for reloading and muzzleloading purposes since it could be used to make a bomb.
I’m a living history reenactor (F&I war through fur trade era). I usually have about 5 or 6 pounds of black powder in various grades stored in my home. Unlike modern smokeless powder, black powder is classified as an explosive, not a propellant.
Even though I agree with this ruling, I have a queasy feeling someone is going to try to make feeding my flintlocks a pain in the ass…
Mikee:
Not all things that go boom are explosives. Explosives can be given a fairly sensible legal definition, even if the current definition isn’t always sensible.
RAH:
I don’t believe it makes sense to outlaw all possession of explosives by civilians. Obviously that would be ridiculous. Just that the government can find a legitimate interest in regulating it. I’m not going to get into whether that should be the state or federal governments, or what the balance should be constitutionally, but cutting that argument away, I think the interest is there.
That’s also not to say that I think the current regulations are the correct ones, or that all regulations will be effective. But when it comes down to the matter before the courts, these things shouldn’t be considered.
When I was in high school, dynamite was $0.15 / stick, fuse-type blasting caps were $0.15 / ea, and fuse was $1.50 / 50 ft. For $5, three of us amused ourselves for about a year. Yes, dynamite, when placed against a rock, will detonate from a hit with a .22, and cutting a stick up into 10 pieces and repackaging it makes a better firecracker than an M-80 at about 1/4 the going price.
A few years later, the budding young leftist moonbats convinced themselves that doing this sort of thing in the Deans office was a clever political statement. Today, they sit in the Deans office, and somehow seem to have lost all their youthful enthusiasm for dissent.
One mans kid having fun, is another mans terrorist. I suppose some of my neighbors must have thought so anyway.
Over at my place, I took the position that, barring WMDs the phrase “keep and bear” should define anything that could be carried or drawn by a 1/2 ton pickup. You’ve got to draw the line somewhere after all.
Zoning is the proper venue to regulate exposives. Not the 2A.
Zoning is local. They could xone for cannon, tanks , airplanes in the driveway. If a person has the land and then there is no reason they can’t own artillery and practice.
WE only punish the improper use such as destructive use against someone or property not the tool or chenicals themselves.
Any decent chemist can brew up bioweapons, having the means does not prove intent. If we punish anyone that has the means we dumb down the population and regulate the individual who can have the learning or not.
So we can regulate with local zoning laws appropiate use of dangerous toys like explosives, cannon and tanks.
You either trust the popu;lace with dangerous itens or you don’t . That all it comes down to.
The restriction of nukes is money not laws.
You are arguing that a law outawing chemicals and pipes will stop people . Law do not stop, they only punish.
All those are public policy arguments, which I agree with you on, but they aren’t constitutional issues. Bans on certain types of weapons of mass destruction pass even strict scrutiny. The question of effectiveness of the law is generally something for a legislature to consider, not the courts.
I thought the litmus test was “Militarily useful” per the Miller Court.
It’s not clear that the Court is viewing Miller as a valid test. It’s not clear they meant to overturn it either, but the Heller ruling was pretty clearly molded around self-defense rather than the militia argument.