[Federal Register Volume 72, Number 33 (Tuesday, February 20, 2007)]
[Rules and Regulations]
[Pages 7740-7741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2851]


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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 [email protected]. 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 [email protected].

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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