“Is a personal nuclear weapon protected by the Second Amendment?” – Rebecca Klemm
Hi Rebecca,
No.
Although the Supreme Court has increasingly recognized Second Amendment rights over the past two decades, that trend is unlikely to produce a right to possess personal nuclear weapons.
To understand why, let’s look at how the court evaluates Second Amendment claims these days.
Start with the amendment’s text, which says: “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.”
Despite the militia reference, the court said in 2008 that people have a personal right to possess firearms at home for self-defense, unrelated to militia service. Yet that 5-4 ruling in District of Columbia v. Heller also emphasized that the right is not unlimited. Rather, it applies to weapons in “common use” for lawful purposes and doesn’t apply to “dangerous and unusual” weapons. The type of firearm at issue in the Heller case was a handgun, which the court called “the most popular weapon chosen by Americans for self-defense in the home.”
In 2022, with the current six-justice majority in place, the court expanded on Heller in the Bruen case by approving a right to carry a handgun for self-defense outside the home. The court also announced a new, two-part test for deciding whether a gun law violates the Second Amendment. Step one of the Bruen test asks whether the amendment covers the conduct that the law seeks to regulate. If it does, then under step two, the law can’t stand unless it’s “consistent with this Nation’s historical tradition of firearm regulation.”
The test has caused confusion in the lower courts and even among the justices over how to apply it.
But as an example of how the test works in practice, the high court majority applied it last month to strike down a Hawaii law that barred concealed-carry permit holders from bringing handguns onto private property that’s open to the public without the property owner’s express permission. The court said that gun rights advocates won the first step of the test because the Second Amendment protects carrying handguns for self-defense, and that they won the second step because the state failed to show analogous historical restrictions that would justify the modern ban.
The next gun issue that the justices are set to decide is whether people have a right to possess AR-15s and similar semiautomatic rifles. Several justices have signaled that they think so. The right could therefore be recognized by this time next year.
But even if those rifles win constitutional protection, notwithstanding their use in mass shootings, the logic of such a ruling would not necessarily lead to nuclear weapons being added to the list of court-approved arms in the future.
In fact, nuclear weapons have been cited as an extreme example of what the Second Amendment does not protect. An appeals court analyzing the issue framed it like this: “Everyone can agree that a personal handgun, used for self-defense, is one of those Arms that law-abiding citizens must be free to ‘keep and bear.’ Everyone can also agree, we hope, that a nuclear weapon … can be reserved for the military. … Many weapons, however, lie between these extremes.”
The high court’s greatest proponent of gun rights, Justice Clarence Thomas, has indicated that he thinks nuclear weapons fall on the unprotected side of the line. Last year, he criticized a lower court’s concern that approving AR-15s could lead to legalizing nuclear weapons. He wrote: “Even if some nuclear warheads are small enough for an individual to carry, no reasonable person would think to use one to defend himself. Still less could nuclear warheads ever become a common means of self-defense.” He deemed “fantastical” the lower court’s worry of (as he put it) “Americans lobbing nuclear warheads at one another.”
So, as it stands today, there is little reason to think — and much reason to doubt — that nuclear weapons are on the verge of joining the growing list of “arms” that the court says are protected by the Second Amendment.
Relatedly, on a practical level it’s hard to see how the issue would even make it to the justices for them to reject. Unlike with AR-15s, there hasn’t been a wave of legal challenges pressing for the right to possess personal nuclear weapons for self-defense. Even if such challenges emerge, the court wouldn’t have to consider them; it takes four justices to agree to grant review.
Therefore, the answer to the nuclear question technically might remain unsettled only because it is so outlandish. But if the court wants to reaffirm the outer limits of its Second Amendment approach, then the forthcoming AR-15 ruling next year provides an opportunity to do so.
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