The Law of Superheroes

by James Daily

  The government performed an involuntary laryngectomy on Timothy Karnes in order to prevent him from summoning the power of the demon Sabbac. Judd Winick et al., Devil’s Work: Part One: Sacrifice, in OUTSIDERS (VOL. 3) 8 (DC Comics March 2004).

  But it should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible (or even permanent) chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute interferes with essential daily activities in a far more intrusive way. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be. We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (eight to one!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the United States after Buck, most recently in 1981. 98

  On the other hand, Karnes isn’t your run-of-the-mill offender. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is cruel and unusual is whether or not the punishment is grossly disproportionate to the severity of the crime. 99 This is, in part, why the Supreme Court has outlawed the death penalty for rape cases. If the crime as such doesn’t leave anyone dead, execution seems to be a disproportionate response. 100

  The Eighth Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.” 101 Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy, a routine medical procedure frequently used in those suffering from throat cancer, could be carried out in a humane manner without the infliction of unnecessary pain.

  There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or contrary to fundamental fairness. But in a case like this, necessity goes a long way, especially because the purpose of the operation is not retributive punishment but rather incapacitation. If the only way to prevent Karnes from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

  However, what if taking away someone’s powers could be done with no other side effects? In X-Men: The Last Stand and various stories in the comic books, someone develops a “cure” for mutation, which removes or mitigates a mutant’s powers without really affecting them in any other way. This is far more like the chemical castration situation, but unlike that, a “cure” wouldn’t even remove any functions a normal human has. It’s very unlikely that a court would recognize this as being unconstitutionally inhumane, provided their offense was serious enough to justify this rather harsh sentence.

  Superpowers and the Second Amendment

  Although some superheroes and villains have powers that are harmless or at least not directly harmful to others (e.g., invulnerability, superintelligence), many have abilities that have no or only limited uses apart from harm (e.g., Superman’s heat vision, Havok’s plasma blasts). Although the government may be limited in its ability to discriminate on the basis of mutant status or innate superpowers, could the federal government or the states regulate superpowers as weapons without running afoul of the Second Amendment?

  The Supreme Court has relatively recently addressed the Second Amendment in two cases: DC v. Heller 102 and McDonald v. City of Chicago. 103 The first case dealt with the District of Columbia’s ability to regulate firearms, and (broadly speaking) the second case applied the same limits to the states via the Fourteenth Amendment. In particular, Heller held that the District of Columbia’s ban on the possession of usable handguns in the home violated the Second Amendment. From those decisions we can get a sense of how a comic book universe court might address the issue of superpowers as arms.

  The Scope of the Second Amendment

  First, let us begin with the text of the 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.” 104 This is a notoriously difficult sentence to interpret, but here is how the Court defined the individual terms.

  “[T]he people” refers to people individually, not collectively, and not only to the subset of the people that could be a part of the militia. 105 “Arms” refers broadly to “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” and it is not limited to weapons in existence in the eighteenth century. 106 Interestingly, this suggests that defensive powers may also be protected by the Second Amendment, but for the sake of brevity we will only consider offensive powers as those are the kind most likely to be regulated.

  “To keep and bear arms” means “to have weapons” and to “wear, bear, or carry…upon the person or in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in a case of conflict with another person.” 107 Taken together, the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” but the right does not extend to any and all confrontations—there are limits. 108

  The Court first addressed limitations established by past precedents: “the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’).” 109 Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” 110

  Beyond that, there are lawful limits on concealed weapons as well as “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 111 Perhaps most importantly for our purposes, there is a valid, historical limitation on “dangerous and unusual weapons.” 112

  With the scope of the right established, let us now turn to whether the government could regulate superpowers under the Second Amendment.

  Regulating Superpowers as Weapons

  We may start with the presumption that a superpower may be possessed and used for lawful purposes such as self-defense. The question is whether a given power fits into any of the exceptions that limit the Second Amendment right.

  “Concealed Weapons”

  First, many superpowers could be considered “concealed weapons.” Before the Human Torch shouts “flame on!” and activates his power, he appears to be an ordinary person. Could the government require a kind of Scarlet Letter to identify those with concealed superpowers? The answer is a qualified yes. The Constitution would not tolerate requiring innately superpowered individuals to identify themselves continuously. That would seem to violate the constitutional right to privacy and the limited right to anonymity. Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gun safe in a home). The real objection is to concealed weapons borne on the person in public.

  Thus, the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g., goes out to fight crime). Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g., Superman, the Human Torch). Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training. It may well be that the Constitution r
equires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

  “Typically Possessed by Law-Abiding Citizens for Lawful Purposes”

  Whether this limitation encompasses a given superpower may depend on the number of superpowered individuals in a given universe and the balance of lawful superheroes to unlawful supervillains. If superpowered individuals are relatively common, which seems to be the case in the Marvel Universe, for example, and superpowered individuals are generally law-abiding and use their powers for lawful purposes, then superpowers would seem to be protected by the Second Amendment. If, on the other hand, superpowers are very unusual or if they are typically used unlawfully, then the government may be able to regulate such powers more extensively.

  In most comic book universes powers are both relatively common and normally used for good, suggesting that they do not fall under this exception. However, if certain kinds of powers are more commonly associated with law breaking, then perhaps those powers in particular may be regulated, though in our experience powers of all kinds seem evenly distributed between heroes and villains.

  “Dangerous and Unusual Weapons”

  Here we come to the catchall. Superpowers are certainly unusual in an historical sense, 113 and they are unusual in the sense that in most comic book universes superpowered individuals are a minority. But perhaps it is the nature of the power that counts. If a superpowered individual is approximately as powerful as a normal individual with a handgun (though perhaps one with unlimited ammunition), is that really so unusual?

  Wherever the line is drawn, it seems clear that at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’s optic blasts, Havok’s plasma blasts). These are well beyond the power of weapons allowed even by permit, and their nature is unlike any weapon typically owned by individuals or even the police and military.

  The Nature and Scope of Regulation

  Given that some powers are likely to fall outside the protection of the Second Amendment, how could the government regulate them? We’ve already discussed the issue of concealed powers, but what about powers that fall into the other two exceptions?

  The government would take a page from the way it regulates mundane firearms. First, all possessors of potentially harmful powers could be subject to a background check if they did not have the powers from birth. If they failed the background check, they could be forbidden to use the power (although use in self-defense might still be allowed by the Constitution). A registration scheme would be likely, subject to the limits discussed in reference to the Keene Act.

  Second, exceptional powers could be subject to a permitting system including more thorough background checks and training requirements. Some powers could be expressly prohibited outside police or military use.

  Third, superpowered individuals who have committed crimes—with or without using their powers—may be forbidden from using them or even be required to have their powers deactivated, if possible, in keeping with the Eighth Amendment issues discussed earlier. Following the decision in United States v. Comstock 114 it may even be permissible to indefinitely detain a superpowered criminal after his or her prison sentence was completed if it was not otherwise possible to prevent future criminal acts.

  What about uncontrolled powers, for which merely forbidding the use isn’t enough? This probably falls outside the scope of the Second Amendment and is closer to the law of involuntary commitment. If a superpowered individual is a danger to himself or others, then he could be required to undergo de-powering treatment or be incarcerated for the individual’s protection and the protection of society.

  There may be an alternative to incarceration or de-powering. In the real world, specialized drug courts offer treatment and rehabilitation rather than punishment for nonviolent offenders. “Super courts” could work with institutions like the Xavier Institute, which aims to teach mutants to control their powers and use them safely.

  Thus, the Supreme Court’s current view of the Second Amendment, though politically contentious, would give superpowered individuals significant protection to keep and use their powers largely free from government regulation or interference, with some important limitations.

  No Man’s Land and

  the Limits of Government Power

  The 1999 Batman story arc No Man’s Land centered around a massive earthquake and fire that left Gotham City devastated. Rather than pay to rebuild the city, the federal government decided to mandate an evacuation, thereafter declaring it no longer part of the United States. The bridges to the mainland were demolished and the waters surrounding the island were mined. The result was (in theory) a legal no man’s land where survivors, criminals, die-hard police officers, and a few superheroes were left to sort through the rubble. But could the government really toss off part of a state like that?

  The comic books do not clearly define the process by which Gotham was evacuated and quarantined, but we know three things for certain. First, Congress refused to grant Gotham additional federal aid (this much is certainly within congressional authority). Second, the President issued an executive order, invoking “some half-forgotten loophole about national security,” which is apparently what actually set the evacuation and quarantine in motion. Third, Congress then enacted a law that made Gotham no longer part of the United States. It’s these second and third issues that we’ll be taking a closer look at.

  Isn’t Gotham City sometimes part of New Jersey? Bob Gale et al., No Law and a New Order—Part One: Values, in BATMAN: NO MAN’S LAND 1 (DC Comics March 1999).

  The Limits of Executive Orders

  An executive order is a formal declaration by the President, which can be made pursuant to one of two sources of authority. First, the authority can be an inherent constitutional power, such as the power to pardon. Second, the authority can be derived from a statute (i.e., a grant of power to the executive branch by the legislature). If an executive order is unconstitutional or otherwise invalid, those adversely affected by it can challenge the order. 115

  So given that Congress acted after the executive order was given, what source of power could the President possibly use to justify the order to evacuate and quarantine Gotham? One possibility is the Insurrection Act, 116 which makes particular sense given that we know that the military was called in to keep order, and it was the military that eventually demolished the bridges connecting Gotham to the mainland and also mined the river and harbor.

  Typically, invoking the Insurrection Act requires a request from the governor or state legislature, but we can reasonably assume that the governor of whatever state Gotham is in did so. This could arguably give the President the power to “order the insurgents to disperse” to some place other than Gotham. Ordinarily the insurgents must be ordered to “retire peaceably to their abodes within a limited time,” but it’s conceivable that the whole of Gotham was seized by eminent domain, so the insurgents’ “abodes” would no longer be in Gotham.

  Invoking eminent domain would require compensating the property owners, but since the earthquake and fire drastically reduced the value of the property, the compensation would likely be significantly less than the cost of rebuilding. While it would make more sense for Congress to act first, it’s not inconceivable that the President’s actions could be more or less justified under existing law.

  Giving Up Territory

  Here’s where we come to the sticky part. There’s no explicit constitutional provision for acquiring new territory, much less giving it up. This fact has been something of an elephant in the room ever since the Louisiana Purchase. Thomas Jefferson wanted to amend the Constitution to spell out the process for acquiring new territory, but the Purchase was pushed through without it. Various ad hoc and ex post facto justifications for acquiring new territory have since been invented, typically resting on the treaty power. The treaty power is also the mechanism by which territory can be given up (or “alienated”), w
hich is something the United States has done several times in the twentieth century. 117

  However, not all United States territory is equal. There are five different kinds of US territory: unincorporated & unorganized, unincorporated & organized, incorporated & unorganized, incorporated & organized, and states. These kinds of territory differ in how they may be alienated, but we don’t have to go into all of the details because Gotham, of course, is part of a state (traditionally New Jersey). In fact, it’s not clear how the US would go about giving up part of a state, since that has never happened before.

  Making it possible to surrender part of a state would require a constitutional amendment. “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.…There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.” 118 If Gotham were part of an unincorporated territory (e.g., Puerto Rico), then it’s at least arguable that Congress would have the power to “deannex” it. 119 But once something becomes an incorporated part of the United States (organized or not), it’s essentially part of the United States forever. While it might be possible to evacuate and quarantine Gotham, it’s probably not possible to go so far as to declare it no longer part of the United States.

  Even if the United States could give up Gotham, the remaining people living there would not cease to be United States citizens. This has an interesting side effect: Federal courts would still have jurisdiction over federal crimes committed by or against US nationals in Gotham. The United States “special maritime and territorial jurisdiction” extends to “Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.” 120 Because Gotham was outside the jurisdiction of any nation, the United States would actually retain jurisdiction over many crimes committed there. So much for the idea of a legal no man’s land!