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Human Space Flight Requirements for Crew and Space Flight Participants

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Federal Aviation Administration (FAA), DOT.


Final rule; correction.


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.


This correction is effective February 20, 2007.

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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 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

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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​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 Start Printed Page 7741individual 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.


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.”

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Issued in Washington, DC, on February 14, 2007.

Rebecca MacPherson,

Assistant Chief Counsel for Regulations.

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[FR Doc. E7-2851 Filed 2-16-07; 8:45 am]