McDonald, the 2nd, and the States

The Supremes handed down their decision in McDonald v. Chicago today. This case follows D.C. v. Heller, in which the Supreme Court held a city ordinance banning the possession of firearms violated the right to keep and bear arms expressed in the Second Amendment to the Constitution. The Heller decision was limited, though, in that it only dealt with a firearms ban that was in place under Federal government authority, since it dealt with the District of Columbia.

Once the Heller decision was filed, a number of challenges to various ordinances limiting or banning firearms were made. The Second Circuit Court of Appeals, in a decision signed by now-Justice Sotomayor, held that the Second Amendment did not apply to the states. The Ninth Circuit, in a decision which has been referred for en banc review (which is on hold pending the word from the Supremes in McDonald), held that the Second Amendment did apply to the states, as it dealt with a fundamental right (I talked about it here).

Right now, the decision only appears to be available as a 214 page pdf. So, most importantly, the Supreme Court has ruled that the Second Amendment does prohibit state and local governments from restricting the right to keep and bear arms (too much). The decision is 5-4, with the Opinion of the Court written by Justice Alito and Justice Thomas concurring in part and concurring in the judgment. Justice Stevens dissented (no surprise) and Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor (not really a surprise, either). Lots of meat there, lots to read. I'm sure scholars of Con law are working on analyses right now. In the meantime, the Sullivan Act's progeny are going to cost lots of cities and towns lots of money.

For further reading, but less than the 214 pages of the McDonald decision, Wikipedia has a pretty comprehensive article on the Second Amendment and Court decisions which I'm sure someone is updating right now.

Update
Well, having read the opinion of the Court, the concurrences, and one dissent, I'll add a couple of things.

First, there is a fair bit in here for attorneys who will argue as to the continuing validity of various restrictions on firearm ownership. On page 26 of the Slip Opinion, the Court cites to language from Heller describing handguns as being protected as they are the weapon of choice for self defense. On page 39, the Court describes the "central holding" of the Heller decision as "...the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." I predict this language will be cited in response to any argument that restrictions on automatic weapons, any long guns (including short barreled shotguns), nunchucks, switchblades, or suppressed firearms is unconstitutional. As the Supreme Court has held that the right preceding and underlying the Second Amendment is that of self-defense, only "undue" restrictions on weapons that are both "preferred" (which, likely, will mean in common use today) and "suitable" (which, likely, will mean whatever a given judge decides) for self defense will be overturned. Want a Remington 1100 chopped off right in front of the gas port and loaded with buckshot to protect the homestead? Don't hold your breath. This conclusion is reinforced by the plurality's admonition (p. 45) that it is important to keep in mind that Heller held a right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose".

Second, and very good news, is that the Opinion of the Court makes it pretty clear that Justice Breyer's repeated calls for an "interest balancing test" to decide whether given statutes infringe the right to keep and bear arms is, for now, not going to become law. The plurality twice notes, at page 45 of the Slip Op. and again on page 50, that it explicitly rejects such a test and that the majority in Heller did so as well. Combined, that's precedent. Also, the majority characterizes the Second Amendment right as "fundamental". The Seventh Circuit had held in this case that Chicago's handgun ban had a rational basis to a legitimate state interest. The "rational basis" test is less demanding than an "interest balancing" test rejected here. I believe this will only leave lower courts with "strict scrutiny" at the test for evaluating firearms restrictions. So, those restrictions will have to be narrowly tailored to accomplish a compelling governmental interest and must, in addition, be the least restrictive means of accomplishing that interest. While this is good news, you have to keep in mind that the limitations inherent in the right being protected as described just above. Great news for the folks in DC still trying to get handguns in the face of persistent foot dragging by the city government, though.

Justice Scalia's concurrance is a fairly vituperative calling out of Justice Stevens' dissent and political philosophy, I'd speculate that the tone would be a little different if Stevens was staying on the bench. Interesting read, depending upon your definition of interesting.

P. 67 of the Slip Op.- Justice Thomas' dissent- A great (from an originalist perspective) treatise on the doctrines of selective incorporation, the Privileges and Immunities Clause of the 14th Amendment, and the 14th Amendment in general. Most legal textbooks are less informative. Personally, I think his argument that the Second Amendment applies against the states due to the Privileges and Immunities clause is logically and legally unassailable, despite the hundred and thirty years of (bad) decisions stemming from the Slaughterhouse Cases (which are a fine example of authority justifying its conclusion by tautology) and Cruikshank.

a couple of links

First, and continuing with the book theme, from the Tor publishing website: author Jo Walton has a series of essays that are worthwhile on Lois McMaster Bujold's Vorkosigan series, which have won half a dozen Hugo and Nebula Awards and set the bar for space opera. Those essays are capped by an author interview. For a taste of Bujold's writing, check this out at the Baen Free Library.

Next, a new addition to the blog roll- hunting, fishing, thoughts on gear and more, with pictures, from way up north.

Last, in the "demons ordering snowcones" department, I read via SaysUncle the news that a federal circuit court of appeals has handed down a ruling on the subject of whether the Second Amendment right to keep and bear arms applies against state and local governments, a question of some significance after last year's Heller decision from the Supreme Court. The Court of Appeals for the Ninth Circuit concludes that the Second does in fact apply to the states.

Skimming the opinion, it is interesting for a few things. First, it illustrates how the law-review influenced practice of footnotes is getting out of hand in legal opinions. While frequent footnotes may cause an opinion to look more like a law review article, and thus scholarly, they make interrupt the flow of logic and make it harder to read. Any footnote more than a sentence long, or which is other than truly tangential, should be incorporated into the text. Then again, perhaps I'm just a fan of incorporation.

Next, the first section of the opinion is, footnotes aside, a fairly clearly written primer on just what a mess the doctrine of incorporation (of the Bill of Rights as to state governments) is in today's law. I agree with the view that the "privileges and immunities" clause of the Fourteenth Amendment should have prevented this debate. Maybe someday we'll have a Supreme Court that reads the whole of the Constitution into effect. Maybe we're even headed that way.

Which leads to the last point, and that is the slippery slope effect of legal arguments. Once the Supreme Court addressed the Second Amendment and its underpinnings in Heller, something which it had largely avoided, then it opened the door to the right to keep and bear arms being addressed just as other rights enshrined in the Constitution. For example, and from the opinion:
"Heller reveals evidence similar to that on which Duncan relied to conclude that the Due Process Clause incorporated the right to a jury in criminal cases. Heller began with the 1689 English Declaration of Right (which became the English Bill of Rights), just as Duncan did. Compare Heller, 128 S. Ct. at 2798 (noting that the Declaration of Right included the right to bear arms), with Duncan, 391 U.S. at 151 (noting that the Declaration of Right included the right to a jury trial). Thus the right to keep and bear arms shares ancestry with a right already deemed fundamental. Cf. Resweber, 329 U.S. at 463 (plurality opinion) (relying solely on the presence of a prohibition against cruel and unusual punishments in the English Bill of Rights for the conclusion that it is incorporated into the Due Process Clause)."

Last, I reprint footnote 18 of the decision whole, as I find it obvious, a nice turn of phrase, refreshing coming from a Federal Circuit Court of Appeals, and amazing coming from the Ninth Circuit:
"18
The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain."

In the end perhaps the denizens of hell aren't looking for a jacket after all. The court upheld an Alameda County ordinance forbidding possession of firearms or ammunition on county property and thus closing a popular gunshow held on the fairgrounds, concluding "The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for 'sensitive places' that Heller recognized." Prohibition=nonfacilitation and the exceptions will overwhelm the rule by the time Second Amendment jurisprudence settles out.

follow up

Head here for a nice, well written and lawyerly parsing of the Heller opinion. For detail, I don't think you can do better than that.

Another nice and relatively short (and accurate, in my view) digest at Volokh Conspiracy and authored by Dale Carpenter here.

Heller decision

This morning the Supreme Court released its opinion in the case of D.C. v. Heller, which I've discussed a bit before. At issue was whether the District of Columbia's ban on privately held pistols and strict limitation on long guns and the manner in which long guns are stored violated the Second Amendment of the Constitution. I'm sure the legal and gun blogs will be full of this for the rest of the day and a while. In any event, did the Court find an individual right protected by the Second Amendment?

Shortly, by a 5-4 vote of the Supreme Court, the answer is "yes". You can find the opinion (unfortunately, right now only in the form of a 157 page pdf) here.

Lots of good, chewy stuff in the majority opinion (authored by Justice Scalia)for those who have been following Second Amendment scholarship for a while. Much historical and grammatical review. For example, the majority first notes that the initial clause of the Amendment ("A well regulated militia, being necessary to the security of a free state,")is a prefatory clause and does not limit or expand the operative clause ("the right of the people to keep and bear arms, shall not be infringed."). Hurrah for logic and the hope that the pernicious-but-silly argument that the Second Amendment protects only the right of the states to arm militias has seen its end. Lower courts have been writing "the people" out of this section of the Constitution for too long.

No, wait. Based upon the dissent, the argument is not over and that idea still has legs. From Justice Scalia's footnote (footnote 3) on this section: "JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. But where the text of a clause itself indicates that it does not have operative effect, such as the "whereas" clauses in federal legislation or the Constitution's preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues."

Amazing how some arguments and sentiments come up again and again. From the majority opinion (slip op. at 18) referring to the early American edition of Blackstone's Commentaries (pretty much the most important early legal compendium and commentary) which came out in 1803 "...Americans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury'". Of course (and not in the opinion) today the same sentiment is common and popularly phrased as "when seconds count, the police are only minutes away."


Bad news:
with respect to U.S. v. Miller, the last case (circa 1937) when the Supreme Court considered a constitutional challenge to a firearms law. First, at page 49, the majority notes that "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." At page 52-53, the majority concludes that Miller's "ordinary military equipment" language (which was where that opinion concluded that short-barreled shotguns were not protected by the right to keep and bear arms, as they did not constitute ordinary military equipment such that the militia might use) must be read with the understanding that, when called to militia service, citizens brought with them arms in common use at the time for lawful purposes such as self defense. The majority concludes "[w]e therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes, such as short barreled shotguns."
This interpretation is repeated and expanded a bit on page 55 of the slip opinion. I'd look for the statement to be heavily relied upon in future court decisions regarding restrictions on the type of weapons which can be possessed. In this effort to preserve the Miller case, the majority's opinion is disappointingly circular and ahistorical. As to the first, the law bans short-barreled shotguns, then a court relies upon the fact that short barreled shotguns are not typically possessed by law abiding citizens to conclude that the law is ok. As to the second, Ithaca Auto & Burglar? H&R Handy-gun? (To clarify for those who don't follow or understand the links, I refer to two moderately popular short-barreled shotguns manufactured expressly for personal defense and rendered illegal by the National Firearms Act of 1935.)

Apart from the very important recognition (by the majority only) that the Second Amendment preserves a historical right, I find the meat of the policy portion of the decision and the guarantee of years of future litigation here- from the majority opinion, page 54: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose....Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

On the other hand, when examining the actual DC law at issue, the majority rejects the "rational basis" test. (Slip op. at 56). Further, there is some nice language that ought to lead to reconsideration of statutes in places like Morton Grove. From p. 57-58 "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." and "We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional."


In an earlier post (also linked above) I mentioned professor Lawrence Tribe's suggestion that the individual right to keep and bear arms would not prohibit banning arms in certain locales, such as urban areas. Interestingly, this comes up in the Heller decision and dissent. In his dissent (there are two) Justice Breyer proposes that an interest balancing test be used to determine whether laws unconstitutionally infringe the right to bear arms, suggesting that such a test would allow the D.C. statute. Here is a big quote from the majority opinion that I find generally appealing and that I also find the perfect answer to the proposition in Tribe's article and Justice Breyer's dissent:

The majority, slip op. at 62-63: "JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."


I've read a bit of commentary suggesting that the Court is less adversarial under Chief Justice Roberts, but that is not evident in this opinion. For example, in discussing a construction of "to bear arms" that limits the meaning of the phrase to military service Scalia writes- "The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter" (Slip op. p. 16).From footnote 14 "Faced with this clear historical usage, JUSTICE STEVENS resorts to the bizarre argument....". Justice Stevens in response, (Slip op., Stevens Dissent at 17) "Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment". Not terribly collegial, but rather strong debate.

More, perhaps, later.

The last on...

D.C. v. Heller, at least until the decision comes down and possibly not even then. A few links. First, the transcript of the oral argument is out, even though it just concluded a couple of hours ago. A rundown of the argument and some analysis is available at the Scotusblog. More analysis and lots of comments, as usual, at The Volokh Conspiracy.

All the above is interesting to people really into Conlaw analysis, the courts' take on the Second Amendment, and Supreme Court watchers. Still, court watching is a pretty slow ballgame. The decision most likely will be handed down some time this summer. In the meantime, I recommend everyone do something really helpful (and almost as exciting as waiting for the written opinion on Heller from the Supremes) and assist in this noble effort to prevent spontaneous gun violence.

dia-Tribe

Via the Volokh Conspiracy, a bit of news and a link to a Wall Street Journal op-ed by Laurence Tribe on the DC v. Heller case I mentioned last month.

Tribe urges that the Supreme Court should explicitly limit its decision in Heller to the terms of the Federal government's power to restrict the right to keep and bear arms on a Federal reservation, leaving aside the question of the extent to which states or the Federal government can restrict ("regulate") the right in other contexts. Tribe contends that such a decision would be consistent with the principle of judicial restraint (pause for all lawyers who graduated in the last twenty years to recover from their faint at the prospect of Larry Tribe urging judicial restraint) and appropriate because "scholarship on the reach of the Second Amendment and its implementation is still in its infancy". Hubris, thy name is law professor. The extent of legal scholarship on any given subject is hardly determinative of whether that subject presents a question of law. For any who've read about this sort of thing for a while, Tribe's statement is particularly exasperating and amusing because much of the recent scholarship on the Second Amendment can trace a fair part of its inspiration to an article by Professor Sanford Levinson which appeared in the Yale Law Journal nearly twenty years ago and titled "The Embarrassing Second Amendment". In that essay, Professor Levinson mentions Tribe's near exclusion of the Second from discussion in his widely distributed (as a required text in law schools) constitutional law treatise. Because Levinson is a respected legal scholar and also a self-avowed liberal, his article attracted a fair amount of attention. Somewhat famously, Tribe later examined the resulting new scholarship and changed his treatise to reflect his new found opinion that the Second Amendment protects an individual, rather than a collective right. Thank God John Locke and Edmund Burke engaged in a bit of new scholarship and and those other crazy guys who wrote our Constitution went ahead with those ideas, rather than waiting for them to be adopted by the academy.

Tribe also believes that the fact of an individual right presents no limitation to gun control measures. To whit (and from the WSJ op-ed): "The lower court's decision in this case [Heller] -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms." Tribe ignores the fact that the D.C. Circuit also found the law at issue's requirement that you keep your shotguns and rifles locked up separately from your ammunition, basically unavailable on any sort of short notice, unconstitutional. I truly look forward to Professor Tribe explaining how an individual right memorialized in the Constitution can be restricted on the basis of location (which is to say urban or densely populated areas) and that restriction pass strict scrutiny. Perhaps he does not consider the latter a plausible standard of review.

Just a bit more- Tribe: "Equally foolish would be a decision tilting to the other extreme and upholding the lower court's decision simply because the right to bear arms is, judicial precedent to the contrary notwithstanding, a right that belongs to citizens as individuals. Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing." Nice of the professor to note that judicial precedent hasn't been kind toward the Second Amendment, too bad he neglects the "shall not be infringed" part of the amendment. "Brandish" is a nice touch, too. We've gone from a pistol in the night stand to citizens wildly waving such about in the space of two sentences. Personally, I fall in the "bear" school of gun handling, never having had cause to "brandish", though I might if I could avoid having to shoot someone by virtue of running them off with a little brandishment.

p.s.- if you want to get a nice primer on the Second Amendment and the individual rights view, I cannot recommend Professor Levinson's piece highly enough.

p.p.s.-original title of this post changed to something more clever thanks to the suggestion of a reader.

(not quite) Dead Horse

I apologize for the dearth of posting. I had another version of this particular post just about completed a few days ago when I somehow managed to delete most of the text and then Blogger did the automatic save thing before I realized the error and could restore it. Drat and blast. Discouraged, it took me a while to get back to this thing.

Recently, in a discussion with friends, one of them made a brief and to me very interesting case that the Second Amendment is a perfect bit of Constitution to employ and examine the limitation of original intent analysis.

"Original intent" is a method of Constitutional and statutory analysis which looks to the purpose of the Framers of the Constitution or statute to determine the application of the words today. "Originalism", more generally, seeks to determine the common understanding of the meaning of the law or provision in order to apply it today. The terms are frequently conflated.


So, looking at the time the Second Amendment (text: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.") was ratified, a citizen could and in some cases was obligated to procure the most current military technology available. For example, the second Militia Act of 1792 directed "That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . . That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . ."

Around that time and for a good while thereafter, people could buy the arms the could afford. For example, there was no problem with a ship captain buying cannon to place upon his merchant vessel to defend it, or with private individuals buying cannon, mortars, and whatever advanced small arms were available.

If that understanding had continued, once the Fourteenth Amendment passed then local prohibitions on the purchase and most restrictions on carry of various weapons, including about all small arms, should have been struck down. Under the original rubric, the current restriction on the manufacture and sale (to civilians) of automatic weapons and grenades would, and should, require a Constitutional Amendment, as those would be just the weapons the people should arm themselves with to secure the freedom of the state.

That argument doesn't really do us any good now, as history developed otherwise, but it is an interesting thought and shows clearly the great difference we would see in our regulatory landscape if our courts had been strongly wedded to original intent from the time of Marbury v. Madison forward. I'm not that strong an originalist, in part because of things like the fact that it took until 1963 for the Supreme Court to realize that the right to counsel enshrined in the Sixth Amendment means that the government is required to provide a defense attorney at state expense if you can't afford one when facing serious criminal charges. The law had long before become so complex that a pro se criminal defendant was at a serious disadvantage in trying to mount a defense. I don't think the Framers considered that a problem, and perhaps an amendment should have been required to the Sixth as well, but I can't say that the decision had a bad result. Of course, a lot of folks would say that about various gun control statutes and lower court decisions upholding them, too.


I post these thoughts because the meaning and effect of the Second Amendment is coming up for Supreme Court review for the first time since the 1939 Miller case. Miller didn't really say anything useful and is a pretty wretched piece of judicial reasoning, but it was the last word from the Supremes. However, at some point in this term the Court will decide District of Columbia v. Heller, which is an appeal from a decision by the Court of Appeals for the D.C. Circuit holding that the Second Amendment preserves an individual right incompatible with the District's prohibition on the ownership of handguns (brought into the District since 1977) and extremely restrictive limitations on the possession of long arms and overturning the District statute. The principle briefs and various amicus briefs for each side have been filed and make the best reading on the ins-and-outs of the debate on the Second Amendment that I'm aware of. Go to The Volokh Conspiracy for links to the various briefs and discussion of them. Fun, chewy stuff by conlaw standards, with lots of references to common law, Revolutionary War era writing, philosophy, and various social policy arguments. Even if you don't feel like wading through Supreme Court briefs (and I mean, come on, who doesn't read legal briefs for amusement in their spare time? After all, amicus briefs can only be 9,000 words) you might want to go through the Conspiracy postings on the subjects, just to get a gist of the arguments and note the various groups chiming in on either side of the issue. I'm waiting with some trepidation to read what the Court will come up with regarding the characterization of the right guaranteed by the Second Amendment and to see if they address what level of regulation is permissible before the right of the people to keep and bear arms is infringed.



A last note on the Second Amendment, just in case anyone who stumbles on this is on the wrong (that is to say, not my) side of the gun control issue:
Much of the debate around the Second springs from the first clause, describing a well regulated militia. First, that section is a dependent clause, describing or justifying the independent clause. Unique in the Bill of Rights, it explains why the right to keep and bear arms is important but does not as a matter of either grammar or logic limit that right. Even if it did, as discussed many places "well regulated" in the common usage of the day did not mean "subject to regulation" (although the militia was) but rather "well ordered" or, even, "efficient". Also, contemporaneous statutes (the Militia Act of 1792, in the text reproduced above), defined the militia as every free and able-bodied white male between sixteen and forty-five. Updating that definition a bit in light of the end of slavery and extension of full citizenship to all races and women, you end up with a militia of all able bodied people, just about. In fact, the Virginia Declaration of Rights from 1776 characterized the militia as "composed of the body of the people". The current Militia Act, enacted in 1956, isn't quite as inclusive as the original version, but no one who has read much history can credibly argue that militia=National Guard. As noted, even if militia did equate to National Guard, it still would not limit the right of the people to keep and bear arms. This is, in part, why the idea that the Second Amendment preserves a collective right (which is to say, a right of the state or the people as a whole) is incorrect.

On guns and hunting

This is inspired by the whole Zumbo thing and the current flap of "hunters vs. shooters". More specifically, this is inspired by a post at Bodio's Querencia by Matt Mullenix, see here: stephenbodio.blogspot.com/2007/03/more-zumbo.htm.
Before I get right into my thoughts, I'm going to digress. One of my stated goals in trying to write a blog was to improve my writing. As anyone who has ever suffered through correspondence or conversation with me knows, one of my weaknesses is for digression. Nonetheless, I will digress and preface what I say here by noting that anyone reading this should go right to the Querencia blog and read it. Bodio doesn't publish enough books (which can be said of any great author) and doesn't do book reviews for Gray's or Fly Rod & Reel anymore, but you can tide yourself over with topical bits of his writing at the blog. On top of that, his co-bloggers are unusually articulate and interesting, making the whole thing very worthwhile. The blog is particularly good for the naturalist hunter, as the bloggers are extremely well educated and two of them are falconers, a group I hold in considerable awe. Falconry requires so much dedication just to get to the point where you can get into the field to hunt and then injects so many variables into the hunt that I am amazed by those who practice the sport. Without being familiar with the falconry community (my knowledge comes from reading about them) I generally believe that most falconers speak with considerable authority when it comes to the ethics and aesthetics of sport. Bowhunters using self bows and hard core primitive hunters using period gear and dress are the only other groups which seem to me to compare.

In the post referenced above, Mullenix (one of the falconers) offers a view of former Outdoor Life editor Jim Zumbo's recent blog post decrying "terrorist rifles", defined as those with actions based on the AK-47 or M-16 (known as the AR-15 in the civilian, non-automatic, version) and calling for their ban from hunting fields. That post created a storm of commentary and invective on the internet, losing Zumbo sponsorship and, ultimately, his job. Scroll down a bit and I express an opinion on the whole thing.
Mullenix notes that he views the post as mostly expressing an aesthetic point of view that AR and AK or other military-style weapons do not belong in the hunting field. He then includes some correspondence with Bodio regarding his question of "what did Zumbo say that was a big deal?" In the comments, other folks note that this dispute has been picked up by the mainstream media, with predictable inaccuracy or misunderstanding.

As is probably clear from my earlier post, I don't see things the same way Mullenix does. I think that Mullenix's view could be summed up by his question "He [Zumbo] was stating, essentially, an artistic opinion. Right?" Adopting that view, though, I would say that one reason that folks got so upset over the blog is that Zumbo's argument (that "those guns have no place on our prairies and mountains) nearly inevitably leads to the conclusion that "those guns have no place".
Although the Second Amendment doesn't mention hunting, for decades "sporting use" has been used as a measure of the legitimacy of firearms ownership. More importantly, a new "assault weapon" ban, much more sweeping that the version which passed in 1994 and expired in 2004, has been introduced in Congress. See http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.1022.IH:. It leaves with the Attorney General wide discretion to ban manufacture of many firearms and would place limitations on the private sale or transfer of guns it designates "assault weapons". Here is one provision of that bill, a catch all provision placing under regulation "[a] semiautomatic rifle or shotgun originally designed for military or law enforcement use, or a firearm based on the design of such a firearm, that is not particularly suitable for sporting purposes, as determined by the Attorney General. In making the determination, there shall be a rebuttable presumption that a firearm procured for use by the United States military or any Federal law enforcement agency is not particularly suitable for sporting purposes, and a firearm shall not be determined to be particularly suitable for sporting purposes solely because the firearm is suitable for use in a sporting event."

It is almost impossible to find a semi-automatic weapon which is not based upon a design for military or law enforcement use or used by either of those groups. Back when most of the semi-automatic actions were designed, the big bucks were in military sales. Even if a pistol or rifle wasn't marketed to the military or law enforcement, it saw use by them.
I will provide an example. Take the Remington Model 8 (http://www.remington.com/library/history/firearm_models/centerfire/model_8.asp), which was designed for hunters. The U.S. Border Patrol bought a few and used them for years, particularly on road checkpoints. Some were used by airmen in WW I before the rapid escalation of the war in the air led to Lewis guns being employed. Under the new bill, a century old, funky hunting rifle, http://www.collectorgrade.com/bookshelf8.html (look halfway down the page), could be designated an "assault weapon unsuitable for sporting use". After such a designation, you would only be able to transfer (that is, give or sell) your great-uncle's old Model 8 to your son or daughter by going through a federal firearms dealer in a recorded transaction, likely paying the dealer a fee for his trouble and paperwork. If your son was under 18, you couldn't do it at all without committing a felony punishable by 10 years in prison. The same thing could happen to the Remington Model 11 shotgun (http://www.remington.com/library/history/firearm_models/shotguns/model_11.asp), also known as the Browning Auto-5 and beloved by millions of hunters, but used by lots of police and, occasionally, as a trench gun. Now, I would hope that the presumption that these two guns are not suitable for sporting use would be easily rebutted. However, I wonder who will invest the money in the lawyers to take the case to an AG who decides to declare them "assault weapons". The manufacturers? I know the Model 8 hasn't been made in decades, I don't believe Browning's humpback (the Model 11) is under production. I know I wouldn't have tens of thousands of dollars to throw at it.
In other words, expressing the opinion that a given firearm should be prohibited from a particular use, particularly when the person expressing the opinion has a significant voice, cannot solely be an artistic opinion given our long-running cultural battle over guns and over hunting. Now, stating that such and such a firearm or technique has no place among ethical sportsmen and that only an ethically and aesthetically challenged dolt would employ such, that will get you a lot of flak but no cries for blood. Well, maybe not.

gun community

I was thinking about gear the other day and considering composing something about gear intensive sports, which can include hunting and fishing, when I came across the recent series of events involving the outdoor writer Jim Zumbo. Zumbo is an editor and writer for Outdoor Life magazine. I believe he took over the position of shooting editor from Jack O'Connor. As such he has had a long career in an influential publication. Over the President's Day weekend Zumbo wrote on his blog (which was on the Outdoor Life magazine web page) a post stating that he was on a hunt and had just learned from his guide that many of the guide's clients shooting prairie dogs and jackrabbits use AR style rifles. That is to say, semi-automatic rifles built on the same action as the AR-15 and the same basic action as the M-16 (lacking the latter's capability for burst or automatic fire). Zumbo then launched into a bit of a diatribe about how he considered such rifles "terrorist rifles", along with AK style rifles, and that such had no place in the pursuit of game. As I recall, he pretty much said there was no need for such rifles, period. One fairly short quote gives the sense of the message: "Sorry, folks, in my humble opinion, these things have no place in hunting. We don’t need to be lumped into the group of people who terrorize the world with them, which is an obvious concern. I’ve always been comfortable with the statement that hunters don’t use assault rifles. We’ve always been proud of our 'sporting firearms.'" The blog has been taken down, but you can find the text at http://xavierthoughts.blogspot.com/2007/02/new-gun-control-advocate.html
I'm not going to provide the links to the rest of this story, just go to the home page at Xavier's just above and he has the information. Shortly, the post made it onto a couple of message boards for gun owners and shooters, who were largely responsible for four thousand some comments before the blog was taken down by the magazine. Remington, one of Zumbo's major sponsors, ceased sponsorship and published a message from its CEO to that effect within a day or so. Other sponsors also pulled out. Apparantly, Zumbo has since lost his job as senior editor or shooting editor with the magazine. He has since issued two apologies. Looking around the web, many commenters seem unappeased, with lots of talk about "Fuddites" (aparantly Elmer Fudd- incompetent hunter- Luddites, very funny, really) and the gap between recreational shooters & collectors and hunters.
I'm pretty aware of that gap, as I've lived it. In high school I was on two rifle teams and shot matches and serious practice totalling about 1100 rounds per month at the peak. I attended several state and regional matches a year and went to the highpower championships at Camp Perry a couple of times. I held NRA certification cards in five disciplines (which just means I shot a sanctioned match in five sports, but I wasn't classified "Sharpshooter" or "B" in any of the sports). I hunted, but not that much. I was too busy shooting. In contrast, I haven't shot an NRA sanctioned match in over ten years. I shoot a couple of hundred rounds a year in practice in an effort to maintain my skills at some minimal level. In my spare time, I fish and hunt and backpack and scout. Quite a lot, actually. For a while, I was out 40 weekends a year, leaving only a weekend a month for housecleaning, gear maintenance, and planning. Surprisingly, I didn't date at that time. Nonetheless, I'm now one of the "hunters" rather than "shooters". I could easily live with four sporting arms, none of them semi-automatic. However, I would never choose to do so, nor would I suggest that anyone else be required to so limit themselves. The chest beating by the folks who are into guns, many of whom don't talk about formal competition much, it getting to be a little much. They are verging on committing the same error Zumbo did, which is to divide the community of sportsmen, which is a mistake.
As I see it, Zumbo's errors are three, and I can't feel too sorry for him losing his job because of their egregiousness. The first is ignorance. He mentioned that he heard that some AR type rifles are "tackdrivers". For the last ten years are more, the highpower service rifle competition has been dominated by the AR type rifle. Match shooters will not adopt an inaccurate platform. If he didn't talk to competitors, he could have cruised around the web. Not many custom makers of bolt action rifles offer the accuracy guarantee you can get from Les Baer, http://www.lesbaer.com/ar223.html, or Clark Custom, http://www.clarkcustomguns.com/gatorar.htm who guarantee 1/2 minute of angle (which is to say, a group of shots, usually three to five, will stay within a half inch circle at 100 yards, a one inch circle at 200 yards, and so on) for some of their ARs. That is "tack driving" in the book of any but the most serious benchrest competitor.
The second is pandering to fear of "scary looking guns". He said "As hunters, we don’t need the image of walking around the woods carrying one of these weapons. To most of the public, an assault rifle is a terrifying thing." If my memory serves, Zumbo competed a bit in highpower rifle silhouette in the late 70's and early 80's. That is a competition shot offhand at ranges from 200 to 500 meters. Many of the rifles used for the competition back then looked like ray guns, with brightly painted fiberglass stocks in thumbhole or high combed configurations, heavy stubby barrels, some with flutes cut in them, and large target scopes with enormous adjustment knobs on them. Some even had electronic triggers. While the action might have come from a pre-64 Model 70, the end product bore no resemblence to that sporting rifle and might appear pretty scary to someone not familiar with the game. They were also frequently single shot and, apart from being more accurate and a pain to carry due to their configuration, no different in technology than any treasured bolt action sporter, whether London best or Winchester Super Grade. Scary does not equal deadly. More importantly, any restrictions or guns by action type will be far reaching, as only a half-dozen mechanisms account for the vast majority of our guns. As a gun writer, Jim Zumbo should be aware of this.
Most egregiously, Zumbo fell into the idea that "if it isn't for hunting, we don't need it". He spoke of banning AR and AK type rifles from the hunting fields. The idea that firearms must have a sporting use in order to fall within Second Amendment protection is specious. In fact, in United States v. Miller, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174, a 1939 Supreme Court case (one of the few addressing the right to keep and bear arms) which upheld a 2nd Amendment challenge to the legality of the National Firearms Act's prohibition on shotguns with a barrel less than eighteen inches, the court premised its conclusion on the fact that such a weapon would have no place in a militia. Arguably, any single shot or double barrelled weapon would have no place in a militia, as they are obsolete, militarily. In contrast, an AR or AK type rifle is eminently suitable for such duty.
Rather than delving into 2nd Amendment analysis and interpretation, I will say that in a world where hunting is practiced by a shrinking segment of the population, we cannot ignore natural allies. Gun hunters and shooting enthusiasts are such. The logical conclusion of Zumbo's post is that hunters should join in condemnation of "assault rifles" and call for their restriction or ban. I suppose we are to then hope that we will be left alone to practice our increasingly esoteric sport. However, when animal rights groups seek to ban hunting as cruel, or gun control advocates declare those precision bolt-action rifles "sniper rifles" and a threat to the common welfare and seek to ban them as well, hunters would find themselves very alone, politically speaking, and likely out of luck.