The Next Gun Debate? Armed Drones Could Be Protected By the Second Amendment

Legal scholars are considering whether armed drones could be protected under the Second Amendment.

Screenshot of a computer-generated prototype of a drone armed with a machine gun.

Screenshot of a computer-generated prototype of a drone armed with a machine gun.

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That decision held that the Second Amendment "protects an individual right to possess a firearm unconnected with service in the militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home," but limits the amendment's protections to weapons that are "in common use at the time."

By that definition, robotic weapons would almost certainly not be considered in "common use," much like rocket launchers, tanks and cannons. But Terzian says that as the technology improves, armed drones could one day become popular enough to become commonplace.

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"There are a lot of people in other countries who are basically making autonomous weapons at their home, but they're not necessarily using handguns, they're using Nerf guns or paintball guns," Terzian says. "There's no fundamental [Second Amendment] difference between using a squirt gun and a firearm."

According to Terzian, Congress could, with one law, make it illegal for Rand Paul's nightmare to come true - at least if perpetrated by a civilian. Because armed drones are currently not common, Congress could simply expressly ban them, making it impossible for them to ever become an everyday thing.

"If Congress chose, it could ban robotic weapons, meaning robots would never be in common use, and thus never armed," he writes. "But just because Congress can ban them, does not mean it should ... robotic weapons [could be] both more effective and safer than firearms, so banning them, as opposed to regulating them, would by myopic."

Lawmakers in Washington have proposed bills that would restrict when private companies, individuals and public agencies can use unarmed drones, but it has yet to strongly consider armed drone legislation.

[READ: Activists Organize Nationwide Drone Protests]

If Congress doesn't act, Terzian argues that one day, robotic weapons could defend factories, public places and, eventually, people's homes. As autonomous decision-making intelligence improves, Terzian says that automated weapons might have legitimate self-defense uses that could potentially be lawful.

It's also unclear, he says, whether someone would have the right to attach their handgun to a small drone and then use it for target practice on their private property. The FAA certainly wouldn't approve, but Terzian says it might not be inherently illegal.

"If they're using a pistol attached to a mechanical device - you have a right to that pistol, you can do whatever you want with it unless you are breaking the law with it," he says. "I think it's at least possible that some of those laws could be challenged. I'm not sure we're to the point where you'd win, but you could try."

But those who most often challenge anti-gun laws aren't ready to get behind citizens' armed drone rights – either real or perceived.

"It's nothing I've ever heard of anyone wanting to do," Dave Workman, a representative for the Citizens Committee for the Right to Keep and Bear Arms. "It certainly is an interesting idea, but if you're launching an armed, remote controlled aircraft, I'd imagine you'd run into some serious safety issues. What if it crashes and you have a loaded gun on it?"

[READ: Senate Weighs Benefits, Privacy Concerns of Domestic Drones]

Though the FAA expressly forbids people from arming their private planes, it doesn't forbid the shooting of guns out of the windows of planes or helicopters. While it is illegal in most states, in some places, it's specifically permitted. In 2011, Texas passed a law that allows licensed hunters to shoot feral hogs from helicopters.

"Coyotes and hogs are regularly hunted on ranches out of small aircraft with rifleman at the trigger. I don't know what the legal implications of using a drone to do that would be. I don't think most people see that it's within the purview of the Second Amendment," says Dudley Brown, a pro-gun lobbyist and executive director of Rocky Mountain Gun Owners. Brown says he's not ready to support someone who wants to arm a drone, but that some "wealthier gun owners" he knows have mounted guns to their aircraft, FAA regulation or not.