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Comment by jetpackjoe | Hacker News Reader

In theory, this would never get to trial.

In practice, I would be surprised if any court up to and including the Supreme Court would find this loophole an acceptable defense. It could certainly be a long complicated legal battle, but ultimately, I doubt the Supreme Court would find that the intent of the Sixth Amendment was to allow criminals to go free in this situation.

They don't have to find it an acceptable defense, all they would have to do is find that it is not possible to legally try the suspect. Which is in fact the case. But of course they would try him anyway because doing end-runs around the text of the Constitution is standard operating procedure and has been since the founding. Even the whole idea of the Supreme Court having the power to declare laws unconstitutional is found nowhere in the Constitution. That was a power invented by the Supreme Court in Marbury v Madison. There are many other examples. On a strict textual reading of the Constitution, if the second amendment applies to an individual right to bear arms (which is debatable, but that's what the Supreme Court has most recently held) there is no basis for denying individuals the right to have WMDs. There is no basis for making slander and libel crimes under the First Amendment, but we do, and no one argues with it. Likewise, if someone committed murder in the "death zone" they would be tried somewhere and convicted and the Supreme Court would simply refuse to hear the appeal. And that would be that.

Two things to augment your explanation of the first and second amendments. Firstly, the first amendment guarantees "the incorporation freedom of speech", and not "the freedom of any speach" which sounds arbitrary but isn't when you remember so much of the constitution is meant to carry forward existing British and colonial traditions. If we were free to say it in 1789 we're free to say it now. We aren't free to say anything we please, but the limits are very very wide.

Secondly, incorporation doctrine has made a giant mess of everything, especially the second amendment. It does need to be read in conjunction with the Militia clause in article 1 and you need to keep in mind the intent was to keep a small army but a powerful militia. Militia refers to every man capable of fighting. In federalist fashion, congress got to set standards but the states executed them. The second amendment was a minimum training standard that said congress couldn't abuse its power by enacting gun control because if they did, we'd have no militia to defend the nation which would be a perverse outcome. But basically the federal government has the (curiously unused) power to regulate the training of the militia. Part of that could plausibly include restrictions on how the militia is trained on certain weapons. Hence, to bear a WMD congress could require you to serve one weekend a month, two weeks a year if you get my drift.

> Hence, to bear a WMD congress could require you to serve one weekend a month, two weeks a year if you get my drift.

Yes. But Congress has levied no such requirement. And absent any such requirement I should be able to successfully argue that if my right to bear arms extends to a Glock then there can be no Constitutional basis for arguing that it should not extend to a nuke.

My point is no one even attempts to make that argument because everyone knows it would get shot down on some obscure legal pretext because when push comes to shove no one is really a textualist or an originalist. It's all subtlety and nuance and interpretation and, ultimately, politics, even among people who insist that it is not.

There is 18 U.S. Code § 831,832, but it doesn't outright forbid owning a nuclear weapon. There is also the interesting issue of nonproliferation treaties to consider. Could the US signing an arms agreement impact your second amendment rights - because those treaties would be enforceable against you? If you followed in the footsteps of David Hahn and ilk and avoid the environmental problems that got him in trouble, and built it yourself, you might be able to create and possess one legally. Theres probably some regulations in the CFR to look through too. Some law or regulation has to exist to regulate existing nuclear weapon production in the US.

The constitution is not a suicide pact; that is the whole reason for the judiciary: to interpret laws. I would be very surprised if any reasonable lawyer (never mind a judge) read the Sixth Amendment and concluded that it was the framers' intent that people could not legally be prosecuted if they committed a crime in such a region.

As for the court's power to overrule, and to a certain extent, create law, that goes back to English common law and predates the US Constitution significantly.

There was a prior case where a guy shot an elk in this area and he raised this "bug" with the judge. But he ultimately got a plea deal with the agreement that he wouldn't appeal. So it's not totally ridiculous but presumably the combination of I imagine the plea not being too onerous and at least some fear he could lose made it not worth pursuing.

I suspect that a lot of technical people look at this and say "Yup. It's a bug and nothing to be done about it unless it's patched." Whereas, as you say, the reality is probably that judges up and down the line say "Nope. You're not getting away with it" and/or prosecutors figure out ways to charge the person in a different jurisdiction.

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