“Machine Guns” That Aren’t: Did the D.C. Code Mislead Justice Breyer?

Magritte.jpgAn emergent theme of October Term 2007 seems to be avoidable mistakes in high-profile Supreme Court opinions. We’ve been surprised by the failure of Court and litigants in Kennedy v. Louisiana to notice the federal military death penalty for child rape, and by Justices Stevens and Scalia’s mischaracterization, in D.C. v. Heller, of the Court’s 1939 Second Amendment precedent, U.S. v. Miller, as “upholding a conviction” for violating a federal firearms law. See 2008 WL 2520816, *26 (opinion of the Court), * 34 (Stevens, J., dissenting). Actually, Miller won in the lower court and was never convicted.

I think I’ve found another mistake, this time in Justice Breyer’s Heller dissent. This one is subtler than the Kennedy error, but it significantly damages the persuasiveness of the Breyer dissent.

Justice Breyer joined Justice Stevens’s dissenting opinion in Heller, which concluded flatly that the Second Amendment “protects only a right to possess and use firearms in connection with service in a state-organized militia,” 2008 WL 2520816, *37 (Stevens, J., dissenting). However, Breyer also authored a separate dissenting opinion that mounts an alternative argument for the constitutionality of the D.C. handgun ban.


Justice Breyer argues that, even assuming the Second Amendment does protect, to some extent, an individual right to possess firearms for self-defense, this is still only one of several interests served by the right: the others are (1) furthering a well regulated militia, and (2) sporting uses such as hunting and target shooting. Furthering the militia, Justice Breyer asserts, is the Second Amendment’s “first and primary objective.” Id. at * 68 (Breyer, J., dissenting). He admits that this objective entails an interest in enabling citizens to possess weapons for military training and practice. Id. at *68 (acknowledging amicus briefs to this effect by former military officers). However, he argues, the handgun ban does not unreasonably burden these two interests, and especially not the “primary,” militia-furthering interest. Therefore, it does not violate the Second Amendment, even though it does “burde[n] to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further.” Id. at *70.

I want to focus on Justice Breyer’s argument that the handgun ban does not unreasonably burden the military training interest. His argument appears to turn on the alleged availability of a wide range of appropriate alternative training arms. Thus, Justice Breyer claims that although D.C. residents cannot possess handguns, the training interest is “not seriously affect[ed]” because “they may register (and thus possess in their homes) weapons other than handguns, such as rifles and shotguns.” Id. at *68 (citing a retired generals’ brief that lists “rifles, pistols, and shotguns” as useful military weapons). Indeed, Justice Breyer cites D.C. Code 7-2502.02(a) for the proposition that the “only weapons that cannot be registered are sawed-off shotguns, machine guns, short barreled rifles, and pistols….” Id. (emphasis added). The implication is that the military training interest is still effectively preserved, because D.C. residents remain free to own “rifles and shotguns.”

But in truth, D.C. residents are also barred from possessing a wide swath of common rifles, including many of the rifles most valuable for military familiarization and training. I believe Justice Breyer and his clerks were misled by the plain language of the D.C. Code, and assumed that when D.C. law prohibits the possession of “machine guns,” it means by that term … well, machine guns.

Not so. D.C.’s bizarre definition of “machine gun” includes, inter alia, any semi-automatic (i.e., self-loading, one shot at a time, incapable of automatic fire) rifle or shotgun that contains, or can accept, a magazine holding 12 rounds or more. See D.C. Code 7-2501.01(10)(B) (“any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot … [s]emiautomatically, more than 12 shots without manual reloading”). As I have suggested before, defining a semi-automatic as a “machine gun” is comparable to defining a married man as a “bachelor.”

For perspective, this definition classifies as “machine guns” many of the basic, decades-old .22 rimfire rifles made in the millions by Marlin and Ruger, and sold today for less than $250 at sporting goods stores. Indeed, Marlin’s Model 60 was sold for years, under various brand names, at department stores like Montgomery Ward. These affordable, quiet, soft-recoiling rifles are excellent for training new shooters. But you can fit fourteen little .22 cartridges into the Marlin’s tube, so it is a banned “machine gun” under D.C. law.

It goes without saying, too, that virtually every magazine-fed, semiautomatic rifle of military pattern is prohibited under D.C. law, even the 1940s-vintage M1 Carbine, since they will accept magazines larger than 11 rounds. Also completely prohibited are all of the semi-auto, civilian AR-15 versions of the select-fire M4/M16 rifles that have been standard issue to American troops since the 1960s.

Where does that leave the Breyer dissent? The “primary” objective of the right to arms, he argues, is furthering the militia, and he concedes that this includes training with weapons by individual citizens. Yet of the three categories of military small arms — “rifles, pistols, and shotguns” — D.C. not only bans pistols entirely, but also, through its definition of “machine gun,” bans a huge number of rifles, including many common .22s, and including precisely the category of detachable magazine-fed, centerfire rifles that would be most relevant and useful for military familiarization in the latter half of the 20th century — let alone the century we live in.

Surely the “proportionality” of the total ban on handguns, from the standpoint of military training and readiness, must be gauged in the shadow of the profound restrictions that D.C. also imposes on possession of modern rifles. Furthermore, Justice Breyer has already conceded that the D.C. handgun ban also burdens the separate interest in using firearms for self-defense. That is a lot of burdening. I think we must conclude that the argument attempted in the Breyer dissent fails even by its own terms. If D.C.’s actual pre-Heller gun laws are to be defended against Second Amendment attack, the defense cannot rest on Justice Breyer’s “interest-balancing” argument.

So should this count as another Supreme Court mistake? I suggest so. There is no acknowledgment in Justice Breyer’s opinion of the effect that D.C.’s deceptive definition of “machine gun” has on his argument. If Justice Breyer did know what “machine gun” meant under D.C. law, then he ought to have acknowledged this in his dissent, to avoid confusing the tens of thousands of readers that could be expected for the Heller opinions — especially since his argument stressed that, unlike “machine guns,” “rifles and shotguns” could be owned in D.C. But I see no reason to think this was the case. It is much more likely that Justice Breyer and his clerks simply missed this point; they took the D.C. Code at face value, assumed that “machine gun” had the very different meaning that it has in ordinary language (and in federal law), and did not look up the definition.

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5 Responses

  1. shg says:

    That was painful in its desperation to find another “mistake”.

  2. Brett Bellmore says:

    “Justices Stevens and Scalia’s mischaracterization, in D.C. v. Heller, of the Court’s 1939 Second Amendment precedent, U.S. v. Miller, as “upholding a conviction” for violating a federal firearms law.”

    Whoa! I hadn’t even noticed until checking the above, that Scalia didn’t pick up on Stevens’ mistake. Among all those slams, he really missed a nifty zinger.

  3. James Gibson says:

    I think you are being too kind. Breyer had an agenda to protect the DC law and this can be seen in his statements during the arguments. His comment that the 1792 militia Act prohibited pistols from everyone except the officers was a false statement. Under that law the officers were required to have a sword and the infantry a musket or rifle. There was no prohibition against anything, just a statement that regardless of what other arm the men may own, the infantry had to have a musket and the officers a sword. The only one required to have a pistol were members of the cavalry who were required to own two pistols.

    In a similar action Breyer’s suggestion that the Boston fire ordnance prevented the use of personnel weapons for self defense is equally erroneous. He mentions on page six of his dissent that soldiers with paper cartridges could load and shoot four shots in a minute but then suggests that civilians with their rifles were much slower (his source being Hicks). What he fails to mention is that Hicks was talking about all muskets, not just those in the hands of “trained troops”. Further, in Stevens dissent (footnotes on pages 15 and 38), it is noted that the 1792 Militia Act required all militiamen to have more then 20 of these cartridges in their kit for immediate militia duty. Finally, and Breyer should have known this from his obvious reading of Arming America, Massachusetts had virtually no rifles listed in their militia returns. If these returns, as certain people suggest, were a gun census then why would Breyer be arming Bostonians with slow loading rifles when the census says they were 90% muskets.

    Lets stop being politically correct, Breyer and the rest of the dissenters were just looking for an excuse to rule the way they did.

  4. Jeff Rubinoff says:

    What I in particular do not understand about the DC law is that, when I lived in Ward 5 in the late 80s-early 90s, most male heads of households (and quite a number of female) kept a firearm in the house for home defense. This had a significant social and cultural root in what the role of the man of the house was–combined with practical considerations regarding the crap response time of DC police east of Rock Creek Park.

    Someone held up a disco in my neighborhood once. The bartender told him he could have all the money in the till and he should keep cool but please leave the patrons alone. The robber took this as a challenge and turned his pistol on the patrons, demanding their money and jewelry.

    His body had 5 gunshot wounds from 3 different pistols.

  5. Ranger G says:

    Breyer’s goof is unsurprising; few would suspect “firearm” includes fearsome BB guns…but they do in the statutes of many jurisdictions. Including semiautomatics under “machine gun” or “assault weapon” bans is common. But more to the point, its simply ignorant fantasy to think that the militia/military does not use handguns to a very significant degree–as a collateral weapon for those on crew-served weapons, often for crewmwembers in armored vehicles, and very heavily for security purposes. And handguns require the most effort/training to use properly–a fact revealed when I spent 5 years on nuclear weapons security in the Navy and witnessed one sailor peer down the barrel of a loaded M1911a1 that had misfired, and another fiercely ramming a magazine in to his .45–while staring directly at it, and not realizing he had the magazine rotated 180 degrees horizontally. The rounded shiny thing should point away from you, sailor…. So. Suffice it to say that neither of these folks were NRA types…and both would have benefitted vastly from a little civilian handgunning.