Eugene Volokh:

I don’t support laws that mandate smart guns, chiefly because there’s no reason to think that such guns will be reliable enough any time soon. But I certainly see the advantage of such guns, as a means of preventing the 100 or so fatal gun accidents and the greater number of nonfatal gun accidents involving kids that happen each year in the U.S.

If I had a child, and smart guns were reliable enough, I might well be willing to spend some extra money to get a smart gun instead of my current gun. And if (as I asked you to assume) such smart guns became generally about as reliable and about as costly as ordinary guns, I think smart gun mandates might be constitutional under the theory that they do not materially interfere with the right to keep and bear arms in self-defense.

Only a lawyer could make a set of statements like this.  I take the view that all federal laws concerning firearms are unconstitutional because of the second amendment.  But even if you don’t take my view, the case of so-called “smart guns” should be easy to dispose.

First of all, Eugene has posed a false hypothetical.  “Reliable enough” is a matter of judgment, and it seems manifestly unconstitutional and even immoral for a government to make the decision to sacrifice any reliability at all in matters of self defense because of a felt social need (that the courts have not been asked and have no authority to address and the Congress has no business addressing).  Furthermore, electronic gadgetry as a means to prevent a firearm from functioning will never be as reliable as ordinary weapons today.

Don’t take my word for it.  Ask any engineer who has experience in the airline, space or commercial nuclear power industry and knows anything about fault trees and failure mode and effects analysis.  Use the NRC fault tree handbook for starters.  Construct a fault tree with all of the right logic gates, and if you end up assigning a failure probability of anything other than zero (0) to any electronic component and that component can prevent the proper function of the weapon, then you have just proven to yourself that smart guns won’t be as reliable as ordinary guns of today.  Case closed.

Second, smart guns will cost more.  Glenn Reynolds makes the point that “punitive controls on ammunition, designed to make gun ownership or shooting prohibitively expensive or difficult, would be unlikely to pass constitutional muster” (Second Amendment Penumbras).  It isn’t clear why Glenn restricted this to controls “designed” to make gun ownership prohibitively expensive.  Intentionality would appear to be immaterial.  With a result that certain classes of people could not afford to own firearms because of the cost, laws mandating smart guns are discriminatory.

Third, smart guns will be more complex, necessitating more in maintenance costs, inability to do basic gunsmithing yourself, and large down time with your weapon should it ever need maintenance (due to a smaller subset of technicians who are capable of working on the guns).  In part one can ascribe the popularity of AR-15s to the modularity, simplicity of operation and ease of maintenance and basic gunsmithing.

Finally, electronic gadgetry will be vulnerable to interference, including governmental interference.  This interference could take the form of violation of due process, and more to the point, Eugene truncates the intent and scope of the second amendment by limiting it to self defense (which is nowhere to be found in the constitution or contextual documents).

For these (and other) reasons, smart guns will never be a vital, meaningful, or trusted part of American life and heritage.  No man will pass down a “smart gun” to his children or grandchildren.  They will forever be good for nothing more than a gun controller’s wet dream.  But for obvious reasons, I’ve recommended that billions of dollars be invested in development of the “technology” by gun controllers, just don’t ever think you can force them on me or take away the ones I’ve got.

Prior: Smart Guns tag