Legal analysis of the problems of superherodom

Ryan Davidson and James Daily are lawyers and comic-book geeks, and they write the absolutely charming Law and the Multiverse blog, which involves intricate, hilarious analysis of the legalities of superheroes and supervillains, and considers appropriate policy responses to the social problems created by supers.

A delightful example: Superpowers and the Second Amendment:

First, many superpowers could be considered 'concealed weapons.' Before the Human Torch shouts 'flame on!' and activates his power, he appears to be an ordinary person. Could the government require a kind of Scarlet Letter to identify those with concealed superpowers? I think the answer is a qualified yes. I do not think the Constitution would tolerate requiring innately superpowered individuals to identify themselves continuously. That would seem to violate the constitutional right to privacy and the limited right to anonymity. Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gunsafe in a home). The real objection is to concealed weapons borne on the person in public.

Thus I believe the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g. goes out to fight crime). Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g. Superman, the Human Torch). Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training. It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

(Thanks, Bruce!)


  1. The post about the Wikileaks mirror allegedly tracked back to the CIA is gone from the front page without explanation…as well as the Google cached page.

  2. There was a great sequence in some JLA comic about the problems of superheros with secret identities testifying against the super villains in court. Basically it was a version of the protocol used by SAS commandoes (who actually do have secret identities) testifying at inquiries and trials. It involved a federal database of unique identifying characteristics of superheros, such as their voiceprint or MRI scan, which would not normally be recorded in the civilian world. So you can say this guy is The Flash: the same one who is registered as superhero #2859 because the voiceprint matches. Barry Allen’s voiceprint, on the other hand, is unlikely to be in some database so this identification doesn’t link back to the secret identity.

    There was a great run of “She Hulk” too when she worked at the Marvel Universe’s premier super-law firm: the one with the shape-shifter summons server.

  3. I don’t buy this. I don’t believe that this has been thought out well.

    First, the Torch. Yes, he doesn’t a secret identity. Anybody can know that he’s Johnny Storm and how he looks like. But he doesn’t have his power only when in uniforum, he can “flame one” anytime – both when nude in the Sauna or fully zipped upped when skiing.

    Next, Superman, Wonder Woman, all those Marvel mutants – they were born with traits which are termed super-powers, buch which are a natural part of their physiology, like the amazing “color vision” , “depth perception” or “high pitched hearing” many natural born humans just know about, but never experience themselves.

    1. Watch the latest episode of Smallville, the Vigilante Registration Act sounds like a parody of how the TSA and other real life agencies are doing things.

  4. Well this is related to the “My hands are registered with the police as deadly weapon,” meme. ISTR vaguely that there were some early court cases that treated martial artists as if they had concealed, deadly weapons. Certainly it IS harder for somebody with martial arts training to plead manslaugher or second degree homicide if they kill somebody in a barfight, but for most people fisticufs are not usualy considered “deadly force.”

  5. It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

    This is a more liberal interpretation of the 2nd Amendment than actual courts have taken. Consider: the state of Georgia offers a Firearms Permit that allows concealed carry in public, but there is no statute that allows the carry of a “weapon-length” knife (actual length depends on local ordinance, but generally, greater than 3″). Furthermore, federal law restricts the ability to possess and transport automatic weapons (machine guns) and “destructive devices” (explosives, among others). Basically, courts have consistently found that the government is able to restrict the 2nd Amendment in determining which types of weapon may be possessed and carried, and which may not. There’s no reason to conclude that the 2nd would compel the government to license super powers, which can be more dangerous than firearms.

    Then again, the fact that the super power is innate to the person seems like it would raise all sorts of other Constitutional questions such as prior restraint, but IANAL.

  6. Once again this is nothing new. Do your research. This was one of the major themes in The Incredibles.

  7. Super powers might be as dangerous as powerful weapons, but they are not weapons. Existing gun control laws would not apply to them any more than they apply to an especially strong normal person.

  8. The big problem is the real-world damage incurred during a fight.
    If throwing a bus is the appropriate weapon against a villain, who pays for the bus?

  9. So wearing a cape in this day and age isn’t enough??

    Personally, I thought the whole ‘marking people’ thing went down after certain peoples were forced to wear yellow stars in Germany. I guess there are still people with that mentality….

  10. I think you misread the text. “Marking” was not a requirement, it’s just that obvious superheroes with capes and powers aren’t concealed. The other option was a mandatory registration of ones superpowers, to allow meta to go out in public w/out breaking laws forbidding concealed weapons.

  11. Start reading Brian Michael Bendis’s ‘Powers’; the whole- ongoing- series is based on the interaction of superpowers and the law.

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