Skeet Shooting Misses The Target

White House photo [[link], taken on August 4, 2012, shows President Obama shooting clay targets at Camp David, the presidential retreat in Maryland. The President asserts that he does this "all the time." So, why is this the first time it has ever been mentioned, anywhere? The President's stance, and the type of shotgun (looks to me like it is a long-barreled [30 or 32 inches] shotgun of the type favored by trap shooters, actually) makes it appear that he was shooting "trap," a much different game than skeet, by the way.

Anti-gun politicians love such shotguns, because they are widely used in sport, and that seems, to them, to be a "reasonable compromise" -- i.e., "see, I support 'good guns' and I use them myself.'" As Bill Clinton -- who signed the 1994 - 2004 assault weapons ban -- said to a New York Times reporter in 1993 during a duck hunting trip, "It makes the point I've been making all along -- that it doesn't have anything to do with hunting," he said. "My policies don't have anything to do with hunting" [[link]. Indeed, they did not and do not: these policies have to do with banning the military-capable semi-automatic rifles that are virtually never used in crimes, but do provide the individual American with a credible means of resisting some possible future tyranny, and represent a credible threat to those with such tyrannical aspirations, whether foreign or domestic.

In any event, the Second Amendment is NOT about skeet shooting.


The Inconvenient Second Amendment: Why Semi-Automatic Firearms and High-Capacity Magazines Are Constitutionally Protected

by Poasterchild

Introduction

In 1989, nearly 20 years before the Supreme Court handed down its decision in District of Columbia v. Heller [1] affirming that the Constitution does indeed embrace an individual right to keep and bear arms, the distinguished liberal Constitutional scholar Sanford Levinson published a prescient article in the Yale Law Journal titled “The Embarrassing Second Amendment.” [2]

In speculating as to why the Second Amendment has historically received such scant attention from Constitutional scholars (compared, for example, to the First, Fourth, or Fifth Amendments), Professor Levinson, whose article was actually a plea for reasoned discussion among legal scholars on the meaning and implications of the so-called “forgotten Amendment” rather than an endorsement of the “individual right” interpretation, said this:

“I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from . . . the perhaps subconscious fear that altogether plausible, perhaps even ‘winning,’ interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.”

In the immediate aftermath of the tragedies in Newtown, Connecticut, and Webster, New York, there has been a renewed push from Senator Diane Feinstein for a federal ban on the future manufacture and importation of firearms such as the AR-15 and the high-capacity 20- and 30-round magazines with which they are typically supplied. Indeed, President Obama specifically included such a plan in the package of “gun safety” proposals he announced to the Nation on December 14, 2012. [3]

Typical of the rationale offered for such action by Congress, the President said, “If there is even one step we can take to save another child, or another parent, or another town, from the grief that has visited . . . Newtown, and communities from Columbine to Blacksburg before that – then surely we have an obligation to try.” [4] The clear implication of this argument is that the need to supposedly protect the public trumps the Second Amendment and that semi-automatic firearms, such as the AR-15, are no more deserving of special protection than are any others. Leaving aside for the moment the incorrect presumption that restricting a certain class of firearms will do anything to protect anyone, this brief analysis will focus on why semi-automatic firearms such as the AR-15 deserve – and already possess – protected status under the Constitution.

The Special Constitutionally Protected Status of Semi-Automatic Firearms

It is my contention that the President’s argument, while perhaps emotionally appealing, is fraught with legal problems, and that semi-automatic firearms such as the AR-15 do enjoy special protection under our Constitution. Again, Professor Levinson’s observation that there exist “plausible, perhaps even ‘winning,’ interpretations of the Second Amendment [that] would present real hurdles to those of us supporting prohibitory regulation” was prescient, perhaps in a way that he did not foresee.

In the only Supreme Court decision to touch upon the status of “military-style” firearms in civilian hands, United States v. Miller [5], the Court ruled unanimously that appellant Miller’s possession and interstate transportation of a sawed-off shotgun was not Constitutionally protected under the Second Amendment. In the words of Justice McReynolds, writing a unanimous opinion that reversed and remanded the District Court’s decision that Miller’s sawed-off shotgun was Constitutionally protected:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

Thus, by extension, despite the fact that none of the semi-automatic firearms which Senator Feinstein and the White House would like to regulate and/or tax out of existence are capable of full-automatic fire (which is what separates them from the military weapons they superficially resemble), the AR-15 and its cousins are Constitutionally protected precisely because they do have such a reasonable relationship to a well-regulated (meaning, in the language of the 18th century, “well-trained” and “well-armed”) [6] militia.

Who Then, Is Legally Guaranteed the Right to Possess Semi-Automatic Firearms?

Following the line of reasoning upon which the Court based its decision in Miller, which suggests that ownership of firearms such as the AR-15 is required of but not restricted to members of the militia, one must turn to the questions of (1.) precisely what is the militia referred to and (2.) who comprises it. Here, too, those who would move to legislatively prohibit the future manufacture of semi-automatic firearms such as the AR-15 and the high-capacity magazines associated with them have, from a Constitutional perspective, a very tough row to hoe.

Section 311 of title 32 of the United States Code [7] provides that “the militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.” Section 313 [8] defines the militia as having two classes: (1) the organized militia, which consists of the National Guard and the Naval Militia; and, (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. In sum then, the unorganized militia is all male citizens of the United States, aged 17 to 45, and male resident aliens aged 17 to 45 who have made a declaration to become citizens and are not members of the National Guard. Given Secretary of Defense Leon Panetta’s recent directive that women are no longer to be barred from direct combat roles in the Armed Forces, not to mention the Equal Protection Clause of the 14th Amendment, it would seem that the exclusion of women aged 17 to 45 from the definition of who comprises the unorganized militia is open to challenge, the language of 32 USC § 313 notwithstanding.

Conclusion

This analysis has demonstrated that: (1.) unlike other firearms – such as the long-barreled side-by-side shotguns used by duck hunters, or, the poorly-made, inaccurate, small-caliber handguns that are disproportionately used in crimes of violence – semi-automatic firearms with magazines having a capacity of greater than 10 rounds and chambered in .223, .308, .30-06 (as well as a few other calibers) possess Constitutionally-protected status precisely because of their “reasonable relationship to the preservation or efficiency of a well regulated militia;” and, (2.) that while, due to the present exclusion of women who are not members of the Armed Forces or National Guard, the jurisprudence pertaining to whom comprises the unorganized militia may be incomplete, it is a matter of black-letter law that all male citizens and male resident aliens who have made a declaration to become citizens of the United States and are not members of the National Guard, are in fact members of said militia, and as such are not only permitted, but indeed are required to possess and to become proficient in the use of such firearms.

While these facts may be inconvenient for those who would deprive American citizens of their natural and Constitutionally protected right to possess military-capable semi-automatic firearms, [9] they are indeed, the facts. Rather than attempting to accomplish their objective of disarming American civilians by waving the bloody shirt, let Senator Feinstein and President Obama, if they possess the moral courage to do so, address these matters head-on via a direct attempt to repeal the Second Amendment.

Notes

1. District of Columbia v. Heller. 554 US 570 (2008).
2. 99 Yale L.J. 637 (1989-1990). Embarrassing Second Amendment, The; Levinson, Sanford.
3. [link]
4. [link]
5. U.S. v. Miller, 307 US 174 (1939).
6. Uviller, H.R. and Merkel, W.G. The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, p. 361. Duke University Press: Durham, NC. 2003. See also: The Federalist, No. 29.
7. 32 USC 311.
8. 32 USC 313.
9. Senator Unveils Bill to Limit Semiautomatic Arms. The New York Times, January 24, 2013. [link] “The goal of the bill, [Senator Feinstein] said, is “to dry up the supply of these weapons over time.”