A higher caliber of regulation: is making smart-gun technology mandatory constitutionally permissible?

• Author: Kimberly, Tyler J.

CONTENTS INTRODUCTION I. SMART GUNS: CONCERNS, GOALS, AND FACTS A. An Overview of Smart-Gun Technology B. The Debate Surrounding Smart Guns 1. Are Smart Guns Reliable? 2. Will Smart Guns Really Keep Guns Out of the Wrong Hands? 3. Expect to Pay a Premium Price II. SECOND AMENDMENT JURISPRUDENCE AND AN ANALYTICAL Framework A. District of Columbia v. Heller 1. The Scope of the Second Amendment Under Heller 2. Lawful Regulations and Impermissible Violations of Second Amendment Rights B. Post-Heller Courts and Eugene Volokh's Framework 1. Restrictions on "How," "Who," and "Expenses" According to Volokh 2. Volokh's Categories in Circuit Courts a. Bans Resulting from Domestic Misdemeanors as a "Who" Restriction b. Jackson v. City and County of San Francisco, and the "How" Restriction c. Kwong v. Bloomberg and "Fee Jurisprudence" III. Applying the Analysis to Smart-Gun Technology A. A "HOW" RESTRICTION B. A "Who" Restriction C. An "Expenses" Restriction CONCLUSION INTRODUCTION

Andy Raymond owns a gun store in Rockville, Maryland, called Engage Armament. (1) In 2014, Raymond thought he could attract business by selling guns equipped with a new technology that prevented the gun from firing in the hands of anybody but the gun's owner--so-called "smart guns." (2) Raymond did not intend to draw attention to himself by selling these guns, but he was thrust into the national spotlight by the gun's manufacturer, Armatix. (3) Raymond's publicity triggered ardent reactions from those opposing the new technology, and Raymond began receiving degrading messages and death threats. (4) Immediately, Raymond stopped offering the Armatix smart gun, but he did not understand why some people would object to the product. (5) In response, another man in his community claimed that these guns were a mistake and that no "gun person" would ever want to own one. (6) However, both supporters and critics of these new smart guns agreed that the technology is untested, making it unclear what the benefits or dangers may be. (7)

This is an extreme example, but is meant to communicate the point that people disagree, quite passionately, on the extent to which the Second Amendment protects the right to bear arms. The text of the amendment itself reads as follows: "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." (8) A superficial reading of that text gives almost no indication on where the boundaries of its protections lie. (9) In 2002, New Jersey tested those boundaries by enacting a law mandating that "[o]n the first day of the 24th month following the date on which the Attorney General reports that [smart guns] are available for retail sales purposes," it will be illegal to sell guns in New Jersey that are not smart guns. (10)

Now suppose in the next few years, New Jersey starts implementing its smart-gun law. Alternatively, suppose that Congress or another state legislature passes a similar law requiring that all guns manufactured or sold be equipped with smart-gun technology. Is there, as of right now, a basis in the Second Amendment for objecting to those laws? This Comment suggests that the answer to that question is no. In Part I, this Comment discusses how smart-gun technology functions and the controversy surrounding its implementation. Part II develops a framework for analyzing the constitutionality of the new technology based on jurisprudence and the work of Eugene Volokh. Finally, Part III of this Comment applies the framework from Part II to the arguments discussed in Part I.

1. SMART GUNS: CONCERNS, GOALS, AND FACTS

   This Comment will first describe how smart-gun technology works and the various debates surrounding its implementation. (11) Understanding the implications, both positive and negative, of smart guns will shed light on their constitutionality, which is discussed in Part III. This Comment describes what smart guns are and how they work. Next, this Comment discusses arguments concerning the functionality of smart guns, whether they actually will result in less gun violence, and the cost of implementing a smart-gun regime.

   1. An Overview of Smart-Gun Technology

      A smart gun is a gun that "will only fire when grasped by an authorized user." (12) This takes place using a variety of technologies, including touch memory, remote control, radio frequency identification ("RFID"), and biometric technology. (13) The most well known of these technologies is RFID technology. This type of smart gun requires the user to wear a ring, watch, or bracelet, which transmits radio waves to the corresponding gun, allowing it to be fired. However, the distance these radio waves can travel requires the owner to be holding the gun or similarly situated in proximity for the gun to fire. (14) In order to power the receiver inside the gun, the RFID smart gun requires batteries. A passive transmitter (the ring, bracelet, or watch) does not require electricity to function properly. (15) It is not yet clear if RFID smart guns would be sold on a one-gun-one transmitter policy, but the technology certainly exists to allow multiple transmitters to access the weapon.

      Biometric technology is another popular form of smart-gun technology. Typically, biometric technology uses digitally recorded behavioral or physiological characteristics of the owner to verify an authorized user. (16) One common type of biometric technology identifies an authorized user through fingerprint recognition, but the technology also includes recognition through voice recognition or a personal identification number. (17) The lock and key function of biometric technology tends to be very accurate at recognizing an authorized user, but it consumes a concerning amount of power and requires a number of seconds in order to identify a user. (18) Like RFID, the legality of authorizing more than one user is not clear, but the possibility exists.

      Regardless of what sort of technology the smart gun uses, the goal and the essential function of those technologies are the same. If these smart guns are only sold to law-abiding citizens and only fire in the hand of the buyer, then chances of the smart gun being used for an unlawful purpose or in accidental shootings should be substantially lower than for regular guns.

      To some this "unlocking" technology is to firearms as air bags are to automobiles. (19) Guns that only fire in the hands of authorized users greatly mitigate the threat of a person's own gun being turned against her or of accidental shootings in the home. (20) To others, smart guns are an unnecessary hindrance on the ability to use a gun freely and will actually make gun owners less safe. (21)

   2. The Debate Surrounding Smart Guns

      1. Are Smart Guns Reliable?

         The first, and perhaps largest, concern regarding smart guns is whether the technology will inhibit the gun's functionality because the internal processing system of the gun will result in a delay in use. This is particularly worrisome to police officers, who use guns in split-second decisions and need their guns to be ready to fire immediately. (22) Such a delay not only threatens the usability of firearms in the hands of officers but also in the hands of anyone who is using the gun for self-defense, which also requires quick decision making. (23) In one study, the Office of Legislative Research to the Connecticut General Assembly gave great weight to the concern that "neither biometric or RFID systems are instantaneous as it takes time for the controller to disengage the safety on the gun." (24) At the same time, the report observes that there has yet to be any independent study on the reliability of smart guns. (25) Thus, it is difficult to gauge the appropriate weight to assign to studies about smart guns.

         Thankfully, the technology is not likely be commercially available while it presents the risk of the gun not firing when needed. (26) The United States Department of Justice placed three smart guns in the "upper tier" of "production-ready design": iGun's M-2000, Armatix's Smart System, which consists of the iPl pistol and iWl watch, and Kodiak's Intelligun. (27) According to a study by Sandia National Laboratories, the speed of RFID smart guns was satisfactory for police officers as of 1996. (28) Eugene Volokh has observed that "if police departments are ready to use personalized guns," then requiring such guns is less likely to be regarded as an actual change to the weapon's reliability. (29) This argument cuts both ways because while police may be ready for the adoption of smart guns, the fact remains that no police department in the United States has employed the technology. Perhaps this reflects the broader issue that smart guns are not currently commercially available in the United States. (30) Regardless, the reliability of smart guns will remain a major issue until independent studies confirm or deny such concerns.

      2. Will Smart Guns Really Keep Guns Out of the Wrong Hands?

         The next important debate about smart guns is whether they really will reduce unnecessary gun violence by preventing unauthorized use. It is important to note that "[sjmart guns would have no impact on firearms already in circulation," (31) which is about 270,000,000 to 310,000,000 guns in the U.S. (32) Thus, there is a strong argument that smart guns will have little to no impact on gun violence because there are already so many guns available that can be fired by anyone for any reason. Moreover, given the high number of lawful gun owners in the United States, and the small likelihood that a homicide would be "committed by a perpetrator using someone else's gun," there is no reason to expect a noticeable reduction in violence due to smart guns. (33) Some purport that suicides would not likely be affected by smart guns because most gun suicides take place by an "authorized" gun user. (34) Regarding deaths of children using guns, the NRA has asserted...