A viral video from last summer is currently the subject of what could turn out to be an important legal battle: Is it OK to strap a gun (or a flamethrower) to a drone?

And if it’s not, does the Federal Aviation Administration have the legal authority to do anything about it?

Drone pilots around the country—even those who don’t have any interest aerial weaponry—find themselves in the odd position of having to root for a Connecticut teenager and his homemade, weapon-mounted drones.

Shortly after posting the megaviral “Flying Gun” video last July and its followup, “Roasting the Holiday Turkey,” Austin Haughwout and his father, Bret Haughwout caught the attention of the Federal Aviation Administration, which opened an investigation on the family.

The Haughhwouts refused to comply with a Federal Aviation Administration subpoena demanding photographs and video, receipts for the flamethrower, YouTube audience, advertising, and monetization information, and other evidence that could be used against the family in court should the FAA decide that a crime was committed.

“Essentially, the Haughwouts are not going to give the FAA any evidence and they feel the FAA does not have sufficient evidence to proceed with what they have,” an FAA memorandum about the case stated. “Mr. Haughwout stated he is going to use the maximum extent of the law to protect his son.”

The FAA’s motion to compel the Haughwouts to comply with the subpoena is currently making its way through US District Court in Connecticut, and the defense the Haughwouts and their lawyer, Mario Cerame, have mounted could turn the issue into the most important drone law case ever litigated. To be clear, the Haughwouts have not been charged with a crime and are currently fighting the FAA’s motion to compel them to comply with the subpoena.

That’s because the bulk of Cerame’s legal argument is that the FAA is not authorized to perform a search and seizure of his clients’ belongings because drones are not technically “aircraft,” so it’s beyond the legal purview of the agency. The legal case was first reported by John Goglia writing for Forbes.

Is a drone an “aircraft” and why does it matter?

Whether or not drones are “aircraft” is a legal distinction that is undecided, hugely important, and needlessly complicated.

I go into detail about why this matters in my recently published drone law primer, but, basically, because the FAA does not have any legally enforceable drone regulations to speak of, the agency has been using a regulation intended for manned aircraft to levy and enforce fines against drone operators all over the country. That means this case and the legal distinction of whether a drone is an aircraft or not could set an early precedent as to the extent of the FAA’s legal authority to discipline drone pilots.

Cerame says he’s aware that the Haughwouts are unlikely heroes for a drone community that thoroughly disowned his clients when the original videos were posted.

Drone hobbyists “may not like what happened in the court of public opinion and how [the Haughwouts] presented the drone hobby,” Cerame told me, “but when it comes to the legal question, the drone community is very supportive of the idea that the FAA is overreaching.”

“The verb fly, as in ‘fly in the air,’ is not so plain, though. There is fly in the sense of airborne locomotion, like how birds fly from one place to another. But . . . flags also fly, when attached to a pole, don’t they?”

The regulatory definition the FAA is working with for aircraft is “a device that is used or intended to be used for flight through the air,” which Cerame and other drone attorneys in the US have said is far too broad of language.

It’s also inconsistent with the FAA’s regulations in other places. Notably, the FAA does not consider ultralight planes—which are often heavier than drones and actually carry humans—to be “aircraft,” and they do not fall under the same legal distinction as planes, blimps, and helicopters.

Is the FAA “obviously wrong” to investigate the case?

Cerame’s legal memorandum explaining his argument (embedded below) is absolutely worth reading if you’re one for entertaining legal briefs. He told me that because he is trying to stop the case before the FAA can enter its evidence-finding phase, he must prove that the FAA is relying on an “obviously wrong” legal precedent. In a section of the brief called “The Subpoena Rests on an Unreasonable, Patently Absurd, Obviously Wrong, Clearly Incorrect Construction of ‘Aircraft,’” he writes the following:

“The statutory definition of aircraft is ambiguous, and the FAA’s construction is patently absurd. Sure, [the regulations] look simple enough. A thing, any thing, that flies.

The verb fly, as in ‘fly in the air,’ is not so plain, though. There is fly in the sense of airborne locomotion, like how birds fly from one place to another. But . . . flags also fly, when attached to a pole, don’t they? We also say that plastic bags or bits of paper carried on the air fly about—isn’t that a motif in American Beauty? And don’t we say that bullets or knives or any airborn dangerous object—don’t they fly through the air too, especially when there are lots of them? Baseballs can go pretty high—we call it a ‘fly ball.’ Okay.”

In its own legal brief, the FAA tried to narrow the definition down to an object that is “self-propelled and capable of causing injury of person or property.”

“This Hail Mary pass is equally ineffective,” Cerame wrote in response to that argument. “How about a bullet? It’s self-propelled with gunpowder and capable of causing injury. The FAA regulates bullets?”

Are gun drones legal, and can the FAA do anything about it?

As you can see clearly in the videos above, Haughwout flew his drones on private property at roughly shoulder height. He’s not near people and his drones are clearly not a danger to planes. Based on his flying alone, this is a clearly legal use of a hobby drone.

“The FAA is not supposed to regulate guns. The FAA is not a fire marshall.”

If the FAA isn’t worried about how Haughwout is flying, it must be worried about the fact that there are weapons on the drones.

“The FAA believes that the respondents have built and/or operated at least two UAS carrying weapons with the capability of causing serious injury to a person or property,” the FAA wrote.

This brings us to the elephant in the room: Does the FAA have legal authority to prevent people from strapping guns to their drones?

The answer to this question is perhaps related to the “aircraft” question. If drones are aircraft, then the FAA could likely invoke a manned aircraft regulation that states that “no pilot in command of a civil aircraft may allow any object to be dropped from that aircraft in flight that creates a hazard to persons or property.”

That regulation goes on to have exceptions for people who drop objects “if reasonable precautions are taken to avoid injury or damage to persons or property.”

Cerame says this particular use of a gun drone should be none of the agency’s business and is outside its purview.

“People see a gun on a drone and think ‘Oh my god, that’s crazy, horrible,’” Cerame said. “But the FAA is not supposed to regulate guns. The FAA is not a fire marshall. These are local and state issues that can be dealt with by local law enforcement and local and state laws. I find what they’re doing here to be wrong.”

Former head of the FAA’s unmanned aerial systems office Jim Williams said in 2013 that the FAA “currently [has] rules in the books that deal with releasing anything from an aircraft, period … those rules are in place and that would prohibit weapons from being installed on a civil aircraft.”

But there are a lot of privately owned decommissioned war planes that have mounted guns on them—Williams’s quote seems to suggest that the FAA wouldn’t allow drones to be modified to have guns on them. The FAA certifies the airworthiness of manned planes, and major modifications such as mounting guns to planes require new inspections. But the FAA doesn’t have a process like that for drones that are flown by hobbyists—in fact, there’s a huge DIY drone culture that the FAA would kill if it had such a requirement.

Cerame says he’s not sure if gun drones would be protected by the Second Amendment and he said invoking the Second Amendment in this legal brief would be “too cute,” because the amendment has a basis in protecting the right to self defense (“The gun is not very accurate—it would have trouble hitting a barn, so I think there might be an interesting technical issue there,” he said).

I explored the issue of whether the Second Amendment could protect gun drones a few years ago. The FAA says it’s illegal, but it’s an untested legal question, albeit one with few people in the gun community willing to defend it.

Cerame says that ultimately, he expects the case to be appealed regardless of the outcome, which would eventually push the question of whether drones are “aircraft” to the appeals circuit. He says he sees no other option.

“I know that lots of people don’t like what my clients did, and I can see where they’re coming from,” he said. “But you defend the people who are most offensive so they can protect all of our rights.”

Gun Drone Defense

FAA Petition for subpoena

FAA Supplement