The Second Amendment Rights of Corporations

Karl Muth argues we must weigh the rights of corporations to arm themselves the same way we have weighed their other rights.

The recent Hobby Lobby case looks at corporate personhood from a new perspective – whether a corporation might have the right to religious beliefs that cause it to do things that may not be profit-maximising and that are wholly ideological.

We already know corporate persons have First Amendment rights to free speech (albeit somewhat different ones from natural-born persons) and Fifth Amendment rights against arbitrary takings of property. There has never been, however, a question put before the Court as to the Second Amendment rights of corporations. This is, I suggest, a timely matter. To what extent can corporations keep and bear arms?

Security company G4S has 620,000 employees – a corporate security force about a third the size of Switzerland’s military. Academi (formerly named Xe Services and Blackwater), an umbrella company for a variety of security services and mercenary units, has supervised over 50,000 people at a time, according to testimony from its founder – roughly the size of two modern army divisions or a dozen full brigades.

In the First Amendment context, natural persons enjoy more rights than corporations. The same is true elsewhere in the Constitution – even a corporation “born” in the United States cannot vote and corporations arguably have fewer rights in other contexts, as well (for instance, a corporation’s right to refuse to do or produce or explain things that might be self-incriminating is more limited than the same right for a natural person).

Blackwater (now renamed Academi) has weapons and equipment that I cannot obtain as a citizen; is the Second Amendment the only Constitutional scenario where corporations seemingly have more rights than natural people? If so, is this a good exception? Is it sensible? Does it have a historical context or justification?

Most of all, when compared to a natural-born person, is it sensible to think that a corporation is more trustworthy, more loyal to the interests of the United States, or more likely to use weapons responsibly? Is a corporation so likely to use these weapons responsibly that it should be entrusted with weapons like military helicopters and military-grade fixed-wing aircraft (Academi’s MD-530/A-6J helicopters are weapons-capable, able to carry military-style hardpoints for hellfire and chaingun weapons briefcases and able to fly without civilian FAA markings or lights)?

Should corporations be allowed to obtain rights and privileges from the US government in terms of armament that cannot be obtained by private citizens (for instance, Presidential Airways, a private military contractor owned by Blackwater’s former shareholders, holds a Secret Facility Clearance to use military facilities to land, launch, and store aircraft)? Should corporations be entrusted with weapons like the military-grade Bell 412SP helicopter (of which Academi owns more than a dozen) that could easily be used by drug cartels, street gangs, or others with enough money to "rent" these assets?

No doubt there need to be exceptions made for corporations that develop these tools of warfare. Boeing needs to be able to test military aircraft before it is sold to the government. Microsoft needs to be able to develop, possess, and test encryption technology before it is used by intelligence agencies. A security contractor like G4S may need heavy weapons to conduct an extended garrison operation at a warehouse or checkpoint; for some operations, this might even include anti-aircraft or crew-served weapons. Google or another company working with the US government might need to possess a virus or other cyberwarfare weapon that would normally be illegal for a person to possess.

However, it is almost certain that the Framers did not intend any corporate person to have substantially greater rights under any Amendment than a natural person. To extend this beyond the first ten Amendments illustrates the absurdity: Certainly no one intended corporate people to have more votes than natural people or for corporate people to be able to keep slaves while natural people could not. So what is the modern context of this armament of corporate people?

Nowhere is the question more poignant than in Chicago, a city where the eighty-two people shot over this past weekend was barely enough to make the news and where the names of people shot long ago stopped being reported – these people are, in most reports, simply numbers. People have written letters to the editors of major papers advocating everything from the deploying of the National Guard to the streets of Chicago to discourage violence to the use of mercenaries (a strategy that seems to have worked so well in Baghdad and Kabul?) to engage in combat in the streets and suppress the violence by force. If such private mercenaries were deployed, would they simply have heavy rifles? Or would they also be allowed to use drones, military aircraft, and other hardware?

If we allow mercenary companies – which are corporate people – to roam the streets of Chicago and to control the people by virtue of their heavier armaments, we have lost the larger battle. Though I am a tireless advocate for an armed citizenry and for corporate personhood, setting policy that disarms the population while arming its corporations is a recipe for disaster, the worst combination of these concepts, and the worst imaginable approach to a partial privatisation of the urban security situation. We must weigh the rights of corporations to arm themselves the same way we have weighed their speech and other rights – not simply by weighing them in a vacuum, but by tailoring them at the same time.