Arms, technology, and the constitution

[Sanford Levinson]

Calvin writes;

The technology implies the right.

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I'm wondering what this argument does with regard to presidential use of
nuclear weapons (i.e., without prior congressional consent)?  Elaine Scarry
wrote a brilliant piece several years ago in which she interpreted the
Second Amendment as requiring, at the least, explicit congressional consent
to particular use.  Otherwise, the president would have the power in effect
to risk obliterating us all, not to mention other forms of mass murder,
without "the consent of the governed."  Or is the argument, by
presidentialists, that George W. Bush, like Bill Clinton, possesses this
power simply by virtue of being "commander in chief"?  I.e., does the
president possess all the powers of a straight-out tyrant, so that the only
thing we can rely on is his/her character and judgment, rather than on the
operation of specified constitutional procedures, with regard to the use of
nuclear weapons?

One might argue, of course, that the declaration of war by Congress gives
the president the power to do whatever is necessary and proper to win the
war, including the use of nuclear weapons.  I'm more interested in the
president's "emergency" powers to respond to attacks on the US or
presidentially-perceived threats to national security prior to declarations
of war.  E.g., what if Khruschchev had not had the courage to accept public
humiliation in 1962 and instead countenanced the sinking of an American
ship attempting to stop a Soviet ship on its way to Cuba?  Would Kennedy
constitutionally have been authorized to order an ICBM strike on the USSR?
Did the extreme claims made by Bush I as to presidential power in 1990
(when he first lied to the American people about the scope of the American
response to the takeover of Kuwait and then suggested that he was under no
duty even to consult with Congress, let alone receive explicit approval)
reach the use of nuclear weapons?

It is ironic that we spend tons of time debating the notion of an
individual right to bear arms and spend almost no time, as professional
constitutionalists, on the constitutional issues raised by contemporary
arms--including, of course, chemical and biological--possessed by the
modern state.  How many of us on this list teach about contemporary conduct
of war?  (I do not:  I teach war powers through Lincoln and the Steel
Seizure Case, but these have nothing to do, obviously, with the issues
raised above.)

sandy