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As per the Second Amendment of the United States Constitution one has to wonder if there are any restrictions with regard to the type (or destructiveness) of arm you shall bear.

If someone could afford the bill and be in safety/inspection/regulation compliance and seek to bear the arm of nuclear weapons one has to wonder if this would be their constitutional right.

Do people have a legal right to own nuclear weapons? Why or why not and has anyone ever taken such concerns to a court for a legal judgement on the matter?

feetwet
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Who killed Biggie and Tupac
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3 Answers3

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Almost certainly, there is no such right.

It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i.

I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous).

The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller.

If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons.

Nate Eldredge
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Each and every time the Supreme Court has addressed the second amendment, it has upheld that it is constitutionally permissible to have prohibitions on dangerous and unusual weapons. Nuclear weapons meet this standard.

For a prohibition to be permissible, the weapon must be both dangerous and unusual.

Any weapon used for offense or defense has to be dangerous. It'd be pretty stupid to try and defend oneself with something totally incapable of inflicting pain or injury. The historical bans referred to by SCOTUS cases narrow the concept of "dangerous" to mean:

  1. the weapon has a high likelihood of injuring the person wielding the instrument AND/OR

  2. the weapon, by its entire nature, indiscriminately injures or kills, and there is no manner to properly target the weapon at a specific individual or small group

Since the impact of a nuclear weapon is characterized by its rather substantial blast radius and ranges of immediate death and radiation poisoning, it is clearly an indiscriminate weapon. As such, it meets the first half of the standard of a permissible prohibition.

Nuclear weapons are only possessed by approximately 10% of nations. Those nations which possess these arms place them in the control of very small, specialized units. Nuclear weapons have only been utilized twice in the history of warfare. This qualifies them as unusual.

Chameleon
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By no means is this meant to be a full answer, but it also cannot be a comment, so consider this a supplementary.

The United States Bureau of Alcohol Tobacco Firearms, and Explosives (ATF) is responsible for enforcing federal firearms regulations, including what's been defined in law as a "destructive device".

Back in the first days when e-filing was introduced, the ATF's electronic "Form 1" submission (the application to create a firearm, or excplosive), did indeed have the option to submit a form 1 for a "NUCLEAR WEAPONS". This option no longer exists today, at least not on any e-forms that are available to the public. enter image description here

While this does not speak to an individual right (Form 1 is exclusively for firearms manufacturers or importers, however this does not have to be a corporation, and take the form of an individual), it does mean that there exists private entities who are able to legally manufacture and own nuclear weapons.

After all, the government doesn't actually make their own nukes from the bottom up. This would require the millitary to own a large portion of the industry in the United States. Instead, they enlist the assistance of many private companies to aid in the manufacturing of these devices, so they do have to be made, and at least temporarily, owned by a private entity.

tuskiomi
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