The Discerning Texan

I have been following this discussion thanks to Glenn Reynolds, but I especially think that Eugene Volokh's response to critics of his "wild speculation about EMP attack" bears repitition:

I much appreciate the comments in the Electromagnetic Pulse and Smart Guns thread, and I wanted to follow up on one question.

Some commenters -- and others I've talked about this subject -- suggested that it's not sound to make policy decisions based on this sort of speculation about the possibility of an EMP attack. (I set aside for purposes of this post whether one ought to speculate about the availability of smart guns; let's assume that smart guns become available and reliable, as the New Jersey conditional smart gun mandate law presupposes they will be. I also set aside whether smart gun mandates are prohibited by the Constitution even if it turns out they don't materially interfere with people's ability to keep and bear arms for self-defense; that will be the focus of more posts in a few weeks.)

Let me probe this speculation issue a little. The existence of EMP is not speculation: EMP, unlike sex-starved velociraptors, is quite real, as are nuclear bombs, as is EMP that goes much further than the bomb's kill radius. The speculation comes in guessing about the per-year probability that America would be subject to an EMP-generating (but not otherwise immediately lethal) nuclear attack.

But is such speculation really improper -- or even reasonably unavoidable -- when it comes to policy analysis? Imagine that there's a proposal to spend tax money to shield American infrastructure installations against EMP. I assume we wouldn't condemn it as inherently unsound because it's built on speculation about the likelihood of an EMP attack. Of course we could always debate whether it's worth spending the particular amount of money that's proposed, given other possible uses for the money (including lowering taxes as a possible use). But to resolve that debate, either in favor of spending on EMP shielding or against it, we'd have to speculate about the risk of an EMP attack.

Is there some inherent reason that such speculation is (1) proper for evaluating the merits of spending programs, but (2) not proper when evaluating the constitutionality of regulatory programs (in the course of determining whether the programs excessively burden the exercise of constitutional rights)?

Related Posts (on one page):

1. One More Question About Speculation:
2. Speculation and Policy Decisions:
3. Electromagnetic Pulse and Smart Guns:

Excellent point. Essentially the antithesis of the argument that our new President is using to advocate against continuing investment and deployment of our (successful) missile defense program; his is essentially the argument: "have faith" in your fellow man that such a thing would never happen.... 'We're watching out for you, (wink, wink)...' etc.

Yeah, right. Tell that to those kids who found themselves in Virginia Tech's "gun free" zone.

In ANY situation where the power grid might be out for days/weeks/months, especially considering the civil unrest, looting and chaos which would undoubtedly ensue--if someone is threatening my family or invading my household, I would like for my weapon to work when I need it to work--without an electronic identity verification chip, thank you very much.

In any armed altercation a split second can be the difference between life and death. I want the benefit of the doubt of that split second. And any reasonable reading of the Second Amendment ought to guarantee that I retain that right--especially assuming that my adversary is a criminal and thus chooses not to follow any "smart gun" law. The Second Amendment is about leveling the playing field for citizens--not only to prevent personal harm, but also (within a "militia") as a guard against tyranny. If you are going to impose technology or laws which would give any advantage to the criminal or the tyrant, you are rendering the Second Amendment into a useless piece of paper.