Posted by Eugene Volokh:
Pipe Bombs Unprotected by the Second Amendment:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246401854
So holds the U.S. Court of Appeals for the Eleventh Circuit, in
[1]United States v. Tagg: "Unlike the handguns in Heller, pipe bombs
are not typically possessed by law-abiding citizens for lawful
purposes." (There's more, so if you're interested, check out pp. 10-14
of the opinion.)
The general analysis strikes me as right, for reasons I discussed in
[2]my article (at least as to the right to bear arms in self-defense,
which is all I focused on). But I do think the reasoning in this
sentence (from a case quoted in footnote 5) is not quite right:
[W]e cannot conceive of any non-violent or lawful uses for a pipe
bomb.
Of course there are non-violent uses for a pipe bomb, uses that would
be lawful except for the illegality of pipe bombs. One can have fun
blowing them up, quite possibly fun that is relatively safe, much like
people have fun with fireworks or with [3]potato guns, or much like
people have fun firing guns at pieces of paper, even without any
desire to train or to compete. ("[W]e cannot conceive of any ...
lawful uses for a pipe bomb" must refer to something more than just
the fact that pipe bombs are illegal, or else one could equally well
have said it about a total ban on all guns or on handguns, given that
possessing them would then no longer be lawful.)
Now it may well be that such entertainment uses of pipe bombs are not
socially valuable enough to justify allowing their private possession;
that's a plausible argument, and it might even be what the court was
driving at. But the court made its argument not by discounting
entertainment value, but by pretending that it doesn't exist.
For my criticism of a similar factual error in the First Amendment
context (as to the murder manual case, Rice v. Paladin Enterprises),
see PDF p. 26 & n.124 of [4]my Crime-Facilitating Speech article.
Again, this doesn't necessarily tell us how highly we should value
such entertainment. Perhaps it's proper to ban books, weapons, drugs,
or whatever else that pose sufficient risk of sufficiently serious
harm, if their value seems to consist almost entirely of
entertainment. As I said, I do think that pipe bombs are not protected
by the Second Amendment or state constitutional right to bear arms
provisions (at least by their right to bear arms in self-defense
components). But I don't think that we should find it so hard to
"conceive of" people enjoying things that go "Boom!"
References
1. http://www.ca11.uscourts.gov/opinions/ops/200816860.pdf
2. http://www.law.ucla.edu/volokh/2am.pdf
3. http://www.spudtech.com/
4. http://www.law.ucla.edu/volokh/facilitating.pdf
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