an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Do Corporations Enjoy a 2nd Amendment Right to Drones?
An emerging, "solutionist" narrative about drones goes something like this:
Yes, we should be very worried about government misuse of drones at home and abroad. But the answer is not to ban, or even blame, the technology itself. Rather, we need to spread the technology among more people. Worried that the government will spy on you? Get your own drones to watch the watchers. Fearful of malevolent drones? Develop your own protective force. The answer is more technology, not regulation of particular technologies.
I'd like to believe that's true, if only because technology develops so quickly, and government seems paralyzed by comparison. But I think it's a naive position. It manages to understate both the threats posed by drones, and the governance challenges they precipitate.
David Bromwich has called the rapid deployment of drones "terrifying," and I don't think that's hyperbolic. As Francis Fukuyama drily puts it, "A world in which people can be routinely and anonymously targeted by unseen enemies is not pleasant to contemplate." Drones will be one more weapon in the arsenal of an already Leviathan surveillance state. The smaller they get, the more vulnerable even the last refuges of physical privacy will become. The routine acceptance of "signature strikes" without due process abroad also foreshadows domestic law enforcement's likely use of robotic technologies for all manner of tasks.
For now, the most prominent drone critics are libertarians like Rand Paul. But we need to think more deeply about why the drones are objectionable. Is the problem only (or mainly) the increasing power of the state, and its penchant for extrajudicial killing outside of war? Or do we also need to think about the proliferation of lethal, anonymous, and increasingly autonomous modes of force and surveillance as intrinsically troubling, whether controlled by the state or private persons? And if that is the case, might the proper treatment of drones paradoxically require more state power, not less---more emphasis on its maintaining a monopoly on the legitimate use of force? That approach would be in sharp tension with another deep moral commitment of Pauline libertarians---the unfettered distribution of the weapons protected under the Heller interpretation of the 2nd Amendment as an individual right.
We've seen this tension before in First Amendment jurisprudence, particularly in the realm of political speech. The jurisprudence has shifted in a decisively individualistic direction. Back in the 1960s, it was possible to imagine a Supreme Court that would view political speech as best protected by orderly process. That Meiklejohnian vision is alien to the present. Since First National Bank of Boston v. Bellotti granted corporations the right to political speech in 1978, clever attorneys have used protean corporate forms to exploit loopholes in campaign finance law, among other speech regulations. The resulting Wild West of corporate expression undermines even disclosure regulations (which eight Supreme Court justices fully supported when they were litigated in 2007). We've also reached a point where a few large corporations could spend ten percent of annual profits in a given election year and overwhelm (at least in dollar terms) all other political spending.
A Few Hypotheticals
Having achieved so much with their 1st Amendment rights over the last four decades, why would corporations want 2nd Amendment rights? Just as the corporate form advanced the expressive power of, say, the Bank of Boston, so too might it be deemed part of a "self-defense" strategy for individuals in key managerial roles. A few hypotheticals sharpen the issue.
Imagine a liberal Democrat becomes mayor of New York City, and Occupy Wall Street protests break out again. But this time, the mayor directs the NYPD to let the protesters stay in various "private public spaces." JP Morgan Chase decides that it doesn't want to risk bloody confrontations between its own security guards and the occupiers. Instead, it releases a specially programmed fleet of quad-copters (Pinkertons 2.0?) to swarm in at individual occupiers and direct air or sound* at them until they leave the premises (or to simply snatch them away to distributed locations). New York's city council might then propose legislation to ban the drones. JPM would certainly find a sympathetic audience at Fox News if it decided to challenge the ordinance as an unconstitutional challenge to its corporate right to self-defense.
New forms of protest may also provoke technological responses. For example, Josh Eidelson reports that "striking guest workers will announce major March 26 mobilizations outside McDonald’s corporate headquarters in Chicago, and at the home of company CEO Don Thompson." After the financial crisis, the Connecticut Working Families Party organized a bus tour to the homes of AIG executives. If these types of actions become more popular, expect CEOs and their top lieutenants to demand the most advanced forms of self-protection available from their employers---and to challenge any local ordinances that interfere with those prerogatives.
Finally, we can expect multinational corporations to want to deploy drones abroad, particularly in regions of the world with weak (or non-cooperative) law enforcement and military apparatuses. Alien Tort Claims Act Litigation is already littered with tales of private armies, hired toughs, and other forms of rough justice in the developing world. Drones might do the job more reliably and efficiently, protecting, say, oil pipelines from "bunkering." And if the US government were to try to limit that type of "self-defense" by US companies overseas, might such an action provoke lawsuits from multinationals willing to pose grand constitutional challenges to even minimally invasive regulation?
Corporate Rights and Common Weapons
Darrell A.H. Miller has already considered whether corporations might assert 2nd Amendment rights. He observes that Bellotti is "the only case in which the Court attempts to articulate a uniform test for corporate constitutional rights." According to Miller, "artificial, real, and aggregate theories" of corporate personhood are used by courts to "to justify both the existence of and the limits on corporate constitutional liberties." Miller predicts that courts may conclude that corporations have 2nd Amendment "rights equivalent to those of natural persons:"
Under the logic of the Court, . . . First and Second Amendment purposes---self-actualization and government deterrence---are advanced as much by protection of corporate behavior as by protection of individual behavior. Given the Court's reference to First Amendment doctrine as a guide to the Second Amendment, and given that the Court ascribes similar functions to the two Amendments, it is logical that the First Amendment rights of corporations may influence the Court's approach to the Second Amendment rights of corporations in a future case.
Miller does not appear sympathetic to the idea of a corporate right to bear arms, but acknowledges how it would fit within current doctrine.
The question of what kinds of arms would be protected raises another interpretive quandary. The critical lines in Heller suggest that the weapons' regulability is directly related to their commonness and dangerousness:
We also recognize another important limitation on the right to keep and carry arms. . . . [T]he sorts of weapons protected [by the 2nd Amendment] were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” . . . .
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Keying regulation to a weapon's "danger" makes a good deal of sense---few would cite Heller to justify a right to build an atom bomb (or perhaps even a lethal spring gun). It would also militate in favor of a right to drones designed to use non-lethal force to move people away from a protest site. The "common use" prong of the inquiry probably would not be met now. But if drone manufacturers like Chris Anderson are right that the "sky will be dark" with their creations, even it might be met soon. And when we consider the drones' utility in gathering information, the combined First and Second Amendment arguments for rights to some use of them appear formidable.*
So would a SCOTUS decision favoring rights to drone use contribute to human freedom? Once again, we need to consider the dual uses of technologies, and how frequently new technologies are used to entrench, rather than disrupt, entrenched inequalities (if only because the rich can afford them more easily than the poor can). The extraordinary dangers drones are posing both to privacy and individual security require more regulation and monitoring of all sources of drone use, be they public or private. Simply counseling a free-for-all of distributed "watchers watching watchers watching watchers" is not enough. If the history of "money in politics" in the US teaches us anything, it is how quickly a discursive space can be dominated by those with the most resources. If purveyors of a misguided mixture of rights talk and tech solutionism have their way on drone law and policy, physical space may suffer a similar fate.
*I've described the weaponization of sound/speech via LRADs here.