[Federal Register: February 20, 2007 (Volume 72, Number 33)]
[Rules and Regulations]
[Page 7740-7741]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20fe07-3]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration.
14 CFR Parts 401, 415, 431, 435, 440, and 460
[Docket No. FAA-2005-23449]
RIN 2120-AI57
Human Space Flight Requirements for Crew and Space Flight
Participants
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; correction.
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SUMMARY: When the FAA issued a final rule on human space flight, it
described one rule as consistent with the Second Amendment of the
Constitution because, among other things, the right to bear arms under
the Second Amendment is a collective right. The FAA now withdraws that
characterization and amends its description.
DATES: This correction is effective February 20, 2007.
FOR FURTHER INFORMATION CONTACT: For technical information, contact
Kenneth Wong, Deputy Manager, Licensing and Safety Division, Commercial
Space Transportation, AST-200, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
8465; facsimile (202) 267-3686, e-mail ken.wong@faa.gov. For legal
information, contact Laura Montgomery, Senior Attorney, Office of the
Chief Counsel, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-3150; facsimile
(202) 267-7971, e-mail laura.montgomery@faa.gov.
SUPPLEMENTARY INFORMATION: As required by the Commercial Space Launch
Amendments Act of 2004, the FAA established Human Space Flight
Requirements for Crew and Space Flight Participants, 71 FR 75616 (Dec.
15, 2006). The FAA's new requirements for commercial human space flight
include a rule on security mandating that operators ``implement
security requirements to prevent any space flight participant from
jeopardizing the safety of the flight crew or the public'' and
prohibiting a space flight participant from carrying on board ``any
explosives, firearms, knives or other weapons.'' 14 CFR 460.53. In
explaining this rule in response to a comment, the FAA characterized
the right to bear arms under the Second Amendment of the Constitution
as ``a collective right.'' 71 FR at 75626. The FAA now withdraws that
characterization of the right to bear arms. The prohibition on the
carriage of firearms by participants in commercial space flights
remains unchanged.
The Executive Branch, through the Department of Justice, interprets
the Second Amendment as securing a right of individuals to keep and
bear arms. (See Memorandum for the Attorney General from Steven G.
Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, et al., Re: Whether The Second Amendment Secures An Individual
Right (Aug. 24, 2004), available at http://www.usdoj.gov/olcsecondoamendment2.pdf
). In light of this interpretation, the FAA is
withdrawing the statement made in the final rule.
Regardless of the nature of the right, however, it remains true, as
we noted, that the right is, like any other, not unfettered. The
Justice Department itself made this abundantly clear in its analysis
and through its historical review. (See generally id. at 1-5, 6 n.19, 8
n.29, 18 n.68, 61-68, 73, 81-82, 87-98, 102-04.) Similarly, the Fifth
Circuit, which treats the right to bear arms as an
[[Page 7741]]
individual right, has stated, ``Although, as we have held, the Second
Amendment does protect individual rights, that does not mean that those
rights may never be made subject to any limited, narrowly tailored
specific exceptions or restrictions for particular cases that are
reasonable and not inconsistent with the right of Americans generally
to individually keep and bear their private arms as historically
understood in this country.'' U.S. v. Emerson, 270 F.3d 203 (5th Cir.
2001).
The FAA continues to believe that the possession of weapons by
space flight participants on board a suborbital rocket poses an
unacceptably high risk to the integrity of the vehicle and the safety
of the public, and that the rule is consistent with the Second
Amendment. In proposing the rule, we pointed out that ``[s]ecurity
restrictions currently apply to passengers for airlines. Some of the
restrictions prohibit a person carrying explosives, firearms, knives,
or other weapons from boarding an airplane. Similar types of security
restrictions for launch or reentry vehicles would contribute to the
safety of the public by preventing a space flight participant from
potentially interfering with the flight crew's ability to protect the
public.'' 70 FR 77262-01, 77271. In response to the comment regarding
the Second Amendment, we added that ``in 1958, Congress made it a
criminal offense to knowingly carry a firearm onto an airplane engaged
in air transportation. 49 U.S.C. 46505.'' 71 FR at 75626. The FAA thus
has authority to issue this rule.
Correction
In final rule FR Doc. No FAA-2005-23449, published on December 15,
2006 (71 FR 75616), make the following correction:
On page 75626, in the third column, fourth full paragraph, lines 16
through 20, correct, ``Additionally, nearly all courts have also held
that the Second Amendment is a collective right, rather than a personal
right. Therefore, despite the Second Amendment collective right to bear
arms, the FAA has'' to read ``By analogy, and for the reasons given
when the FAA issued its human space flight requirements, the FAA has,
consistent with the right to bear arms secured by the Second
Amendment.''
* * * * *
Issued in Washington, DC, on February 14, 2007.
Rebecca MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. E7-2851 Filed 2-16-07; 8:45 am]
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