Everything Is Not Terminator Ai and Autonomous Weapons Under the Second Amendment

• Jurisdiction: United States,Federal
• Publication year: 2022
• Citation: Vol. 5 No. 2

John Frank Weaver ^*

In my last column, I discussed how courts should consider the essential principle underlying the freedom of speech protected by the First Amendment to the American Constitution—governments in the United States "shall make no law . . . abridging the freedom of speech"—when ruling on artificial intelligence ("AI"). In this column, I explain how courts should consider AI under the Second Amendment: "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."

The concept of AI-enabled firearms might seem like a concept from science fiction or top secret military weapons. Both are true, but the military applications are not that secret, and the history of military technology since World War II is that it very frequently becomes consumer technology.

From M&Ms and duct tape to digital photography and the internet, many consumer goods derive from military products and devices. That flow of technology occurs in the arms market too. Many weapons available on the consumer market—AR-15, FNAR, Beretta, etc.—are based in part on military designs. There is every reason to believe that this trend will continue with AI-enabled weapons systems. The question for courts, then, is what is the essential principle underlying the "right of the people to keep and bear Arms" and how should that be applied to AI.

AI Weapons Systems

Military Weapons

As mentioned above, although AI and autonomous weapons systems were once confined to science fiction—like this column's namesake, Terminator—they have been under development and in

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use for some time by national armed forces in the United States and abroad. On November 21, 2012, the U.S. Department of Defense issued Directive 3000.09 (the "Directive"), which established American policy on autonomy in weapons systems. ¹ The Directive does not require manual human "control" of the autonomous weapon system, only "broader human involvement in decisions about how, when, where, and why the weapon will be employed." ² Tests of autonomous attack drones have taken place at military bases for at least a decade. ³ The U.S. military has an ongoing program to build "swarms" of small, Al-enabled drones that operate as single group in the field. ⁴

Other nations have also developed lethal autonomous weapon systems. The Israeli Harpy drone is programmed to fly to a designated area, identify specific targets, and then destroy them using a high-explosive warhead. ⁵ During Libya's civil war, government forces used Al-enabled drones against enemy militia fighters, who "were hunted down and remotely engaged by the unmanned combat aerial vehicles or the lethal autonomous weapons systems." ⁶ Turkey and Azerbaijan have relied on autonomous drones in recent military actions well. ⁷

The United States and other nations are eager to develop and deploy these weapons for a great many reasons, but two of the most important are that they are inexpensive—both in terms of funding required and military people put at risk—and they are effective. Sometimes more so than human-operated weapons. As U.S. Army General John Murray said this year, "Is it within a human's ability to pick out which [targets] have to be engaged? . . . Is it even necessary to have a human in the loop?" ⁸

Consumer Weapons

How these military autonomous weapons trickle down to the consumer market will not be known for years, but we can make some educated guesses: home security systems that rely on AI-enabled detectors to identify threats before using force; personal drones that autonomously protect individuals outside the house or vehicles while they travel; etc. It is not hard to see many of the individuals and groups currently...