SCOTUS Has Been Wrong On The 2A
Here’s why, and how it can fix its mistakes.
Introduction
In June, the Supreme Court declined to take Snope v. Brown, a case on appeal from the U.S. Court of Appeals for the Fourth Circuit, challenging Maryland’s ban on “assault weapons” and >10-round ammunition magazines. However, Justice Brett Kavanaugh noted:
Opinions from other Courts of Appeals should assist this Court’s ultimate decision-making on the AR-15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR-15 issue soon, in the next Term or two.
More recently, two coalitions of Second Amendment advocacy groups—one including the National Rifle Association, the other including Gun Owners of America—announced they would challenge restrictions imposed by the National Firearms Act (NFA, 1934) on the possession of “short-barreled” rifles and shotguns, various other firearms the NFA terms “any other weapon” (AOW), and “silencers” (sound suppressors).1
If the Court eventually considers those bans and NFA restrictions, one problem is that, unless convinced otherwise, a majority of its justices may defer to the Court’s mistakes in U.S. v. Miller (1939), U.S. v. Thompson/Center Arms (1992), District of Columbia v. Heller (2008), and New York State Rifle and Pistol Assn. v. Bruen (2022).
One reason they may do so, is that Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito were part of the majority opinion in Heller, and they and Justices Neil Gorsuch, Kavanaugh, and Amy Coney Barrett were the majority in Bruen. To correct mistakes made in those opinions would amount to admitting they had been wrong in them.
Another reason is that justices sometimes follow the doctrine of “stare decisis” (Latin for “to stand by that which is decided”). Sometimes. They follow or ignore that doctrine, depending on which approach delivers their preferred outcome. (Because, yes, we have conservative justices, moderate justices, and leftist justices.)
That is what has happened where the Second Amendment is concerned. In Heller, a majority of justices gave weight to a mistake the Court made in Miller, and a majority has deferred to Heller’s mistakes ever since.
On the other hand, in Dobbs v. Jackson Women’s Health Assn., 2022, they rightfully overturned the mistakes of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
They should muster the same courage when they hear the aforementioned challenges to “assault weapon” and magazine bans, and NFA restrictions.2 Failure to do so could have serious consequences for the right to keep and bear arms in the future.
Lawyers
Another potential problem is that lawyers arguing against the bans or NFA restrictions before the Court, and in written briefs submitted to the Court, may say whatever they think will help them win their case, without regard for the impact it may have on other Second Amendment cases now or down the road.
For example, during oral arguments in Heller, Alan Gura, arguing against D.C.’s handgun ban, was asked by anti-Second Amendment Justice Stephen Breyer if the right to arms excludes certain types of arms. Instead of sidestepping Breyer’s trap by answering that Heller was concerned only with handguns, Gura dove headfirst into it in this exchange with Breyer and anti-Second Amendment Justice Ruth Bader Ginsburg:
Breyer: What’s your response to the question?
Gura: Well, my response is that the government can ban arms that are not appropriate for civilian use.
Ginsburg: For example?
Gura: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns . . . . Once a weapon is, first of all, an “arm” under the dictionary definition—and Webster has a very useful one—then you look to see whether it’s an arm that is meant to be protected under the Second Amendment, and we apply the two-pronged Miller test. And usually one would imagine if an arm fails the Miller test, it’s not appropriate for common civilian applications.
Ginsburg: But why wouldn’t the machine gun qualify? [Solicitor] General Clement told us that it’s standard issue in the military.
Gura: But it’s not an arm of the type that people might be expected to possess commonly in ordinary use. That’s the other aspect of Miller. Miller spoke about the militia as encompassing the notion that people would bring with them arms of the kind in common use supplied by themselves.
Gura was wrong on both counts. His statement, “It’s difficult to imagine a construction of Miller . . . that would sanction machine guns,” doesn’t fly because, as explained below, Miller endorsed the right to arms that are “ordinary military equipment,” which in 1939 included the M1928A1 submachinegun and the M1918 Browning Automatic Rifle (both primarily point-target small arms), the (primarily area-target) Browning water-cooled M1917 and air-cooled M1919 medium machine guns, and the Browning M2 heavy machine gun.
Also, his claim that Miller posited a “two-prong” test is simply wrong. As explained below, Miller’s test, such as it is, had only one “prong.”
Terminology
Several terms, some from the preceding paragraph, will be important later in this article, so now’s a good time to define them.
The generic term, “automatic firearm,” refers to any firearm that can fire automatically, meaning more than one shot with a single function of the trigger.
The NFA defines any automatic firearm as a “machinegun”—whether a light, medium, or heavy machine gun; automatic rifle; other select-fire rifle; submachinegun; or any other. As discussed below, some automatic firearms, though not at issue in the aforementioned challenges to “assault weapon” bans and NFA restrictions, are (contrary to Heller) easily within the right to keep and bear arms.
“Small arm” is a longstanding term that refers to a firearm that, with its required ammunition, is light enough that a person can carry it by himself.
As I’ll use the term, a “point-target” firearm is a small arm designed to be aimed and fired at one enemy at a time. All founding-era firearms—muskets, rifles, blunderbusses (the lineal predecessors to modern shotguns), and handguns—are point-target small arms.
So are all modern rifles, shotguns, and handguns, regardless of firing mechanism (bolt-action, lever-action, pump-action, semi-automatic, automatic, “select-fire,” revolver, etc.); barrel length or overall length; magazine type or capacity; grip shape; stock type (folding or not, adjustable for length or not); attachments (flash suppressor, bayonet mount, etc.); or any other minute detail.
A “select-fire” firearm is one that the user can fire automatically or semi-automatically, by adjusting the position of its “selector” lever or similar device.
An M16 or similar rifle is a select-fire, point-target small arm. Because it is almost always fired semi-automatically, ban supporters claim there’s no meaningful difference between it and an AR-15. However, that’s not worth debating. As explained below, both rifles are easily within the scope of the right to keep and bear arms.
As the term is used in the military, an “automatic rifle” is a select-fire rifle that uses the same ammunition as the rifles carried by most other members of a squad. It differs from those other rifles by having a slightly heavier barrel, because, while it, like any other rifle, is a small arm intended for point-target application, it is also intended for limited area-target application. (Heavier barrels dampen recoil and dissipate heat better than lighter barrels, which is important if the firearm is fired automatically.) Examples include the early-20th century Browning M1918 (mentioned above), and the modern M27 Infantry Automatic Rifle and M249 Squad Automatic Weapon.
“Intermediate-caliber” rifle ammunition has a thinner, lighter bullet, or a lighter and lower-velocity bullet, as compared to “full power” rifle ammunition. An example is 5.56 NATO, used in the M249, M27, M16, AR-15, and comparable rifles. Bullet diameter is .224-inch, and standard bullet weight is 62 grains. It’s a caliber of ammunition commonly used for hunting medium-sized game, such as coyotes.
An example of “full-power” rifle ammunition, is 7.62mm NATO (bullet diameter .308-inch, standard bullet weight 147 grains), used in the M240 medium machine gun, and also commonly used for hunting deer.
A “submachinegun” is a point-target, select-fire rifle that uses pistol-caliber ammunition. For example, the M1928A1 uses the same .45-caliber ammunition as the ubiquitous Colt M1911 semi-automatic pistol.
A “light machine gun” is a point-target small arm that has some area-target application. A modern example is the intermediate-caliber M249.
As I’ll use the term, an “area-target” firearm is one designed to fire extended bursts of ammunition into an area containing multiple enemies, with the operator slightly sweeping his aim across them while firing continuously. For those whose knowledge of firearms is based upon movies, consider the opening scene of Saving Private Ryan, in which the Germans used “medium machine guns” (defined below) to fire at U.S. Army soldiers as they exited their Higgins boats upon landing on Omaha Beach.
A “medium machine gun,” such as the early 20th century Browning M1917 and M1919, or the modern M240, is primarily an area-target firearm. Some modern examples are light enough to be carried by an individual, but when so carried, the quantity of ammunition required for the gun if often carried by multiple members of a squad, so it’s often referred to as a “crew-served” weapon. As noted, a medium machine gun uses “full-power” rifle ammunition.
The military’s move toward a new, common caliber of ammunition for rifles, automatic rifles, and light/medium machine guns is discussed in endnote 3.
A “heavy machine gun” is one that is so heavy, that it must be mounted to a tripod, vehicle, aircraft, boat, or ship, and which is designed for hard targets (vehicle, aircraft, etc.). An example is the Browning M2 .50-caliber.
What the Framers intended
In Miller, Heller, and Bruen, the members of the Supreme Court—all of them—twisted themselves into pretzels to avoid basing their opinions on what the Second Amendment was intended to achieve: that the people and, therefore, a militia drawn from them be armed for defense against tyranny.
To comprehend the contortions, it may help to review what America’s founding-era statesmen said about the reason to guarantee an armed citizenry.
James Madison, who introduced the Bill of Rights in the House of Representatives and later served as the fourth U.S. president:
Let a regular army . . . be entirely at the devotion of the federal government . . . the State governments, with the people on their side, would be able to repel the danger. . . . [I]n the United States, an army of more than twenty-five or thirty thousand men . . . would be opposed (by) a militia amounting to near half a million of citizens . . . fighting for their common liberties. – The Federalist No. 46
Alexander Hamilton, Continental Army officer, delegate to the Congress of the Confederation, delegate to the Constitutional Convention, and first Secretary of the Treasury:
[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. – The Federalist No. 29
For other founding-era leaders’ statements on the subject, see endnote 4.
Now, on to the Court’s mistakes in the aforementioned cases.
U.S. v. Miller
Messrs. Miller and Layton were charged with transporting a shotgun, the barrel of which was shorter than 18 inches, across state lines without having complied with the NFA’s registration, prohibitive tax, and other restrictions.
By the time the Court heard their case, Miller had been murdered and Layton had disappeared, so their lawyer didn’t appear before the Court to present evidence on their behalf. Thus, the Court concluded:
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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. (Emphasis added.)
In addition to failing to recognize that the Second Amendment protects the right of “the people,” not the militia, the Court, to justify its militia-centric proposition, didn’t cite anything from the period that tells us what the Framers intended the amendment to achieve: the period during which they discussed how to draft the constitution and Bill of Rights, ending with the adoption of the amendment by Congress in 1789 (or its ratification in 1791). As the Court noted in Heller in one of its better moments, Miller contained “Not a word (not a word) about the history of the Second Amendment.”
The Miller Court didn’t cite anything from the founding era because it couldn’t. There is nothing to suggest that the Framers thought that the right to keep and bear arms was limited to any subset of arms.
Instead, to support its militia-related limitation, the Court cited the opinion of the Tennessee Supreme Court in Aymette v. The State, which was in 1840 and which had nothing to do with the Second Amendment, any gun, or the mere possession of any weapon. Instead, it had to do with whether a state law prohibiting the concealed carrying of a Bowie knife or Arkansas Toothpick (a long dagger) violated the Tennessee constitution, which, unlike the Second Amendment, protected the right to arms for only the “common defense.” Aymette said:
[T]he arms, the right to keep which is secured (by the state constitution), are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin.
However, the Supreme Court didn’t follow its own logic. In 1939, a shotgun with a barrel shorter than 18 inches may not have been “ordinary military equipment.” (The barrel of the Winchester Model 1897 trench shotgun used in World War I measured 20 inches.) But, as evidenced by the uses of shorter-barreled blunderbusses in the founding era, a shotgun with a shorter barrel could have been used to “contribute to the common defense.”
(The same would have been true of even less formidable weapons. As examples, during World War II, residents of Warsaw, Poland, held off the German army with a few revolvers, and the Allies air-dropped inexpensive, single-shot .45-caliber “Liberator” pistols to the French Resistance.)
Furthermore, Aymette, with Bowie knives and Arkansas Toothpicks in mind, said that the only weapons that were not within the scope of the right protected by the Tennessee constitution were those “usually employed in private broils, and which are efficient only in the hands of the robber and the assassin.” Again, as evidenced by the uses of shorter-barreled blunderbusses in the founding era, a shotgun with a barrel shorter than 18 inches would not fit that description.
Ban muskets?
Another flaw in Miller is that limiting the right to arms to those that are militia-related would exclude arms that had been militia-related in the past, but which were no longer. For example, black powder muskets were the primary militia firearm when the Second Amendment was adopted. But, by 1939, they had been obsolete for militia purposes for more than a half-century, superseded by rifles using fixed metallic cartridges charged with smokeless powder.
Ban guns by caliber?
A limit to militia-related arms, if defined on the basis of their ammunition, would exclude most modern firearms.
For example, the Second Militia Act of 1792 provided that a member of the militia:
[S]hall, 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. . . . [A]nd that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound. (Emphases added.)
Note: Balls of 1/18th of a pound are .69 caliber.
Today, federal law (10 USC 246) defines the organized component of the militia as the National Guard and the unorganized component as all other able-bodied males ages 17-45. In the Guard, the standard ammunition for rifles is 5.56mm NATO; for handguns, 9mm NATO; and for shotguns, 12 gauge.
Millions of members of the unorganized militia (and other Americans) have AR-15s and other 5.56mm NATO-caliber rifles; 9mm semi-automatic pistols, including those that have been or are commonly used by the military (e.g., Beretta, SIG, and Glock); and 12 gauge shotguns.
However, while a militia-related limitation based upon ammunition caliber and gauge would vindicate the right to M249s, M27s, M16s, AR-15s, and similar rifles in the same caliber; the most common semi-automatic pistols; and the most common shotguns, it would exclude two or three hundred million privately-owned rifles, handguns, and shotguns that use other calibers or gauges of ammunition.
Of course, an ammunition-based limitation would be unconstitutional. As the Militia Act recognized, founding-era Americans had muskets of various calibers, thus muskets of various calibers were within the scope of the right to arms. After five years, militia members were expected to have .69-caliber muskets for militia purposes, but that didn’t mean they or anyone else didn’t have the right to other firearms.
District of Columbia v. Heller
Heller was concerned with only whether the District’s bans on the possession of handguns, and on having any firearm assembled (thus ready to use for defense within the home), and on carrying a handgun within the home without a permit the District refused to issue violated the Second Amendment.
Heller came to the Supreme Court from the U.S. Court of Appeals for the District of Columbia Circuit, where it was known as Parker v. District of Columbia (2007). Parker overturned D.C.’s bans, and the District appealed to the Supreme Court.
During oral arguments before the Supreme Court, Solicitor General Paul Clement, representing the federal government, pointed out, correctly, that the appeals court’s interpretation of the Second Amendment might mean that the federal ban on automatic firearms manufactured after May 19, 1986, would be unconstitutional.
Chief Justice Roberts pointed out that Heller didn’t have anything to do with automatic firearms, but Justice Scalia (the author of Heller’s majority opinion) had other ideas.
Lawyers may be afraid of telling the Court where it was wrong in Heller, but let’s be honest about it here.
The only firearms at issue in Heller were handguns, so Scalia’s opinion should have said, simply, that D.C.’s laws violated the Second Amendment because, when the amendment was adopted, handguns were within the scope of the right to keep and bear arms. They were widely owned, and there were no bans on their acquisition or possession, or permits (or background checks) required to acquire, possess, or carry them. Furthermore, modern handguns are owned for the same collective and individual defensive purposes today, as founding-era handguns were in their day.
But Scalia wanted a single standard by which he could overturn D.C.’s handgun ban and justify the 1986 automatic firearm ban. In inventing that standard, he made numerous mistakes, most of which were outright lies.
First, he said that the “central component” of the right protected by the Second Amendment is “self-defense.” It is not. As with the rest of the Bill of Rights, the Second Amendment was adopted to prevent tyranny. Even the Miller Court, in citing Aymette, understood that.
Second, just as there is nothing from the founding era to support the idea that the Second Amendment limits the American people to militia-related arms (however defined), there is nothing from the founding era that supports the idea that it limits them to “common” arms (however defined).
For example, in the founding era, cannons were not commonly owned by individuals, but some individuals owned them, apparently without the objection of anyone involved with what became the Second Amendment. For example, the Constitution authorizes Congress to issue letters of marque and reprisal for the private operation of warships, which presumably would be equipped with cannons.
Third, because Scalia couldn’t cite anything from the founding era to support his “common” arms limitation, he invented it by misrepresenting Miller. Miller, as noted, opined that the right to arms was limited to militia-related arms, such as those that were “ordinary military equipment” and others the use of which “could contribute to the common defense.”
However, three paragraphs later, Miller made the passing observation that historically, members of the militia, if called to duty, “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” (Ban supporters claim that private citizens should not have “weapons of war,” but the arms that were “in common use” in 1789 were two military muskets: the French Army .69-caliber Charleville, and the British Army Brown Bess .75-caliber.).
Because of Miller’s “common use” observation, the appeals court and Gura claimed that Miller theorized that the right to keep and bear arms was limited to arms that met both of two requirements: militia-related and “in common use.”
However, Miller could not have meant that. As noted above, it opined—incorrectly, but clearly—that the right to arms was limited to those that were militia-related, including those that were “ordinary military equipment,” which in 1939 included automatic firearms that, because of various federal and state restrictions, were not in common use by private individuals.
Scalia made an even more egregious error. He dismissed Miller’s militia-related limitation and instead based his standard on Miller’s observation about common arms. He said:
Read in isolation, Miller’s phrase “part of the ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.
Of course, there’s nothing “startling” about it. “Read in isolation,” “ordinary military equipment”—in 1939 and today—would include automatic firearms.
Scalia continued:
We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for service [militia] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
But Scalia didn’t read anything “in tandem.” He gave no weight to Miller’s opinion that the right to arms includes “ordinary military equipment” and ignored entirely its opinion that the right includes any other arm the use of which “could contribute to the common defense.” He gave weight only to Miller’s passing reference to arms “in common use” so he could say handguns can’t be banned because they’re common, but automatic firearms can be banned because they’re not common (among the private citizenry).
Fourth, in the way that Miller’s militia-related standard would exclude firearms that, over time, become obsolete for militia purposes, Scalia’s standard would exclude firearms no longer in common use. Today, that would include not only the muskets and other black powder firearms of the founding era, but countless rifles, handguns, and shotguns popular in the late-19th and early 20th centuries.
Fifth, as Justice Stephen Breyer pointed out in his dissent in Heller, Scalia’s “common use” limitation would allow the government to ban any arm invented in the future:
On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.
For example, in the not-too-distant future, if the military adopts individually-carryable energy-beam weapons and individually-wearable force-field devices that deflect bullets, the government could render the people unable to fight against tyranny by banning them before they become common. (Note: Bullet deflectors of the future would be within the right to arms, just as today’s bullet-resistant vests and plates are, because, as Heller pointed out in another of its better moments, in the founding era, “arms” was defined as “weapons of offence or armour of defence.”5)
Add to “Fourth” and “Fifth” (above) that a court could define “common” as narrowly as necessary to deliver whatever outcome it desires. For example, in Heller, Scalia considered handguns—which at the time easily numbered over 100 million—to be “common,” but consider this exchange during oral arguments, between Scalia and D.C.’s lawyer, Walter Dellinger:
Scalia: I don’t know that a lot of people have machine guns or armor-piercing bullets. I think that’s quite unusual. But having a pistol is not unusual.
Dellinger: The number of (privately-owned) machine guns, I believe, is in excess of a hundred thousand.
Scalia: How many people in the country?
Dellinger: Well, there are 300 million . . .
Scalia: I don’t think it’s common.
With Americans having umpty-zillion >10-round magazines, somewhere around 25 million AR-15s, and millions of AK47/AKM-type rifles, the Supreme Court might consider those rifles to be “common,” but what of the smaller numbers of other firearms the bans define as “assault weapons,” privately-owned “short-barreled” rifles and shotguns, sound suppressors, and AOWs?
Sixth, some automatic firearms are “in common use.” The M16 and its “short-barreled” variants (M4, M4A1, etc.) have been standard-issue firearms in the military since the 1960s, Also, they’re the standard-issue firearms in the National Guard, which is important because the Second Amendment protects the right to arms so that we’ll have a militia armed “for the security of a free State” and, as noted, the Guard is the militia’s organized component. As Solicitor General Clement pointed out during oral arguments in Heller:
I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard.
Seventh, as Justice Breyer might have pointed out in his Heller dissent, the only reason that the M16 and other automatic firearms are not “in common use” among the militia’s unorganized component and “the people” generally, is that automatic firearms have been prohibitively taxed and subjected to other federal and state restrictions, including outright bans in some states, and the private possession of those manufactured after May 19, 1986, is banned at the federal level.
Eighth, Scalia pretended that banning the possession of automatic firearms is justified by laws prohibiting carrying weapons with the intention of terrifying people:
Miller said, as we have explained, that the sorts of weapons protected (by the Second Amendment) were those “in common use at the time.”
He added:
We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Baloney. “Dangerous or unusual weapons,” was how Sir William Blackstone, in Book Four, Chapter 11 of his Commentaries on the Laws of England (1765-1769), characterized an English law adopted in 1328:
The offense of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the Statute of Northampton.
However, as explained by Second and Fourteenth Amendment scholar Stephen P. Halbrook in The Right To Bear Arms: A Constitutional Right Of The People Or A Privilege Of The Ruling Class (2021), the Statute of Northampton was interpreted by English courts not to prohibit the mere possession of any weapons or armor, nor carrying or wearing them peaceably, but to prohibit only the carrying of weapons and the wearing of armor with evil intent, in a manner likely to terrorize people.
As examples, in peacetime, it did not violate the statute to wear, underneath clothing, lightweight armor that would protect the wearer against an attack by a criminal with a knife; and, if at war to defend the realm, to wear heavy armor that would protect against being run through with a lance. But if not at war, it would violate the statute to carry a lance on horseback and wear warfare armor in a threatening manner.
Furthermore, the three 19th-century state court opinions that Scalia cited to support his misrepresentation of “dangerous and unusual” undercut his theory. They said that a crime is committed “when a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people” (State v. Langford, 1824); or “if persons arm themselves with deadly or unusual weapons for the purpose of an affray, and in such manner as to strike terror to the people” (O’Neill v. State, 1849); and “the offence of going armed with dangerous or unusual weapons is a crime against the public peace by terrifying the good people of the land” (State v. Lanier, 1874, a case centered around an inebriated man who rode a horse through a courthouse after business hours.6 (Emphases added.)
Nothing that Scalia cited supported banning the mere possession of any weapon (or a horse).
Ninth, Scalia contradicted himself. On the one hand, he said:
The 18th-century meaning [of “arms”] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” . . . .
Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. . . .
[H]istory showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. . . .
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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
But he ignored all of that to say that the arm most generally useful for militia purposes—the M16—could be banned.
Tenth and worst of all, Scalia stated that he knew his “common use” limitation put him at odds with the Second Amendment’s goal—that the people and a militia drawn from them be armed for defense against tyranny—but he didn’t care:
It may be objected that if weapons that are most useful in military service—M16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the (amendment’s) prefatory clause. . . .
But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Contemptible.
NYSRPA v. Bruen
Bruen was concerned with whether New York state’s restrictive handgun carry license law violated the Second Amendment. The Court could have said that it did, by pointing out that the concealed carrying of handguns without restrictions like New York’s was common during the founding era, thus within the scope of the right to keep and bear arms as understood by the Framers.
The Court concluded that New York’s law violated the Second Amendment, but explained it differently:
[T]he standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command” . . . .
[T]he historical record compiled by respondents (New York) does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper cause requirement.
However, the Court did not make clear when it thought the relevant “historical tradition” began and ended. Therefore, Justice Barrett, in her concurring opinion, encouraged the Court to not rely too heavily on history occurring long after the Second Amendment’s adoption:
[T]he Court avoids another “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868” or when the Bill of Rights was ratified in 1791. . . .
[T]oday’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the Court is careful to caution “against giving post-enactment history more weight than it can rightly bear.”
But Justice Barrett didn’t insist on the only history that matters: that which begins when the Framers began discussing how and why to protect the right to arms within the Constitution, and which ends with the Second Amendment’s adoption. That narrow period is what tells us what the Framers considered the scope of the right to arms to be, and what they intended the Second Amendment to achieve.
Reality check: The bans and NFA restrictions are based on minutiae
The Framers said, and the Second Amendment says, “arms,” without distinguishing between two arms of a given type on the basis of minor differences.
However, according to the NFA, if a rifle has a barrel shorter than 16 inches, a shotgun has a barrel shorter than 18 inches, or a rifle or shotgun has an overall length shorter than 26 inches—even by a microscopically small amount—it warrants special restriction.7
Similarly, the bans contend that a detachable ammunition magazine with 11 rounds is fundamentally different than one with 10 rounds. (Note that the federal ban applied, and some state bans apply, to shotguns that hold fewer than 10 rounds, even in a non-detachable magazine, and anti-gun activist groups and politicians have proposed magazine limits of six or three rounds).8
It’s even more preposterous where so-called “assault weapons” are concerned.
For example, according to the bans, a rifle is an “assault weapon” if it meets all of three criteria: (1) it is semi-automatic, (2) it can use a detachable magazine, and (3) it has one (or in some of the bans, two) features from a list, generally including a pistol grip, a folding or adjustable-length stock, a flash suppressor, a bayonet mount, and a “grenade launcher,” the latter included for hyperbole since grenades and launchers are restricted as “destructive devices” by the NFA.
However, a bolt-action rifle that uses detachable magazines and that has all of the proscribed features (even a grenade launcher!!) is not banned. Likewise, a semi-automatic rifle that has all of the proscribed features, but uses a non-detachable magazine is not banned.
Also likewise, a semi-automatic rifle that uses detachable magazines, but that doesn’t have the required number of proscribed features is not banned. For example, during the 10 years the federal “assault weapon” ban was in effect (September 13, 1994-September 12, 2004), prohibiting the manufacture of AR-15s with two or more of the proscribed features, about 730,000 AR-15s were manufactured with pistol grips, but no other proscribed features, so they weren’t considered “assault weapons.”
How anti-gun U.S. senators determined which rifles to include in their “assault weapon” bills is explained in endnote 9.
Which arms do ‘the people’ have the right to keep and bear?
America’s founding-era statesmen made clear that they wanted the people armed for defense against tyranny, and that they believed that the people or their militia would be able to defeat the army, if it attempted to enforce tyranny, because they would vastly outnumber the army (a condition that still exists today) and would have the same weapons as the army (a condition that does not exist today).
Today, the most powerful explosive-energy arms possessed by the military are nuclear. A constitutional argument that supports banning their private possession is that the Framers believed the weaponry necessary to defeat the army would be distributed among the people and their militia. As Madison said, in the founding era, the militia would outnumber the army 20:1.
From that, one could infer that the Framers would not have countenanced any individual possessing a weapon that would allow him to decide a military campaign (thus, potentially, the course of history) all by himself.
It’s easy to exclude nuclear arms from the individual right to arms on that basis, and the same would apply to other especially powerful area-target weapons, such as non-nuclear high-explosive bombs, missiles, and projectiles dropped or fired by aircraft, drones, tanks, and modern artillery.
Bearing in mind Madison’s statement, that in a conflict with the Army, “the State governments, with the people on their side, would be able to repel the danger,” one might say that the Second Amendment is satisfied wherein especially-powerful area-target weapons are controlled by the militia’s organized component—the state governments’ National Guards and Air National Guards.10
But if Miller and Heller were wrong about the arms “the people” have the right to keep and bear, what’s the right answer? Bearing in mind that militia-related and “common,” in addition to having no founding-era bases, are subject to interpretation, the more objective the right answer, the better. And bearing that in mind, where “assault weapon” and >10-round magazine bans, and NFA restrictions on “short-barreled” rifles and shotguns, sound suppressors, and AOWs are concerned, there are at least six things to consider:
First, “assault weapons,” “short-barreled” rifles and shotguns, and some or all AOWs—like the founding-era muskets, rifles, blunderbusses, and handguns from which they are lineally descended—are point-target small arms. (Also like founding-era firearms, they expel inert metal projectiles by the force of burning gunpowder, though this is a less important criterion, because gunpowder weapons will eventually be superseded by some other technology.)
Though not at issue in the current challenges to “assault weapon” bans and NFA restrictions, “lineal descent” would also apply to automatic rifles, M16s and other select-fire rifles, and submachineguns. For example, to suggest that the AR-15 (which is descended from the M16) is descended from founding-era muskets and rifles, but that the M16 is not, would be like saying you are descended from your late-18th century ancestors, but your parents are not.
Second, relative to the argument (made by some ban supporters) that AR-15s are too militaristic, the Second Amendment was adopted to protect the right to arms for a military purpose; Article 1, Section 8, Clause 15 authorizes Congress to provide for calling forth the militia for military purposes; and during the founding era “the people” (therefore the militia) had muskets, rifles, handguns, and blunderbusses identical to those that were issued to military personnel, or indistinguishable from them in form and function (manner of holding, aiming, loading, and firing, effective range, accuracy, terminal ballistics, etc.).
But for the restrictions on automatic firearms, and “short-barreled” rifles and shotguns, the same has been true ever since.
For example, since 1905, 34 years before Miller endorsed the right to “ordinary military equipment,” the congressionally-authorized entity now known as the Civilian Marksmanship Program has provided to civilian marksmanship clubs, and sold to private individuals, surplus military M1903 bolt-action rifles (introduced in 1903), semi-automatic M1 rifles (introduced in 1936), and semi-automatic, detachable-magazine M1 carbines (introduced in 1942)—all equipped with bayonet mounts, it might be noted.
Third, while ban supporters claim that detachable >10-round magazines allow a person to maintain a rate of fire they claim is too high, in the founding era there was no difference in the firing rate of privately-owned firearms vs. those used by military personnel.
(Note that today, the military has weapons that have firing rates far in excess of “assault weapons,” “short-barreled” rifles and shotguns, automatic rifles, submachineguns, and most machine guns.)
Fourth, if the Court ignored the Framers’ intent, and incorrectly applied Bruen’s “history” test to begin in the late 1800s, “assault weapon” and magazine bans would fail even that indefensible test. Semi-automatic firearms and detachable box magazines, including those of >10-round capacity, were invented in the late 1800s. The M1 carbine, an “assault weapon” according to some of the bans, was introduced in 1942. And, the most popular “assault weapon,” the AR-15, was introduced in 1964.
However, the first ban was imposed in 1989, most states have never had a ban, some that have a ban imposed it only recently, and the federal ban, which lasted only ten years, expired in 2004.
Fifth, the claim by the Department of Justice (DOJ), in its recent brief in Rush v. U.S., that “short-barreled rifles combine high destructive power with easy concealability” and—citing the Supreme Court’s opinion in Thompson/Center Arms and Justice Alito’s dissent in Johnson v. U.S., 2015—that “they are especially susceptible to criminal misuse,” is without merit, as are the relevant portions of the cited opinions11, for the following reasons:
“High destructive power” — A “short-barreled” rifle uses the same ammunition as a longer-barreled rifle of the same type, but fires it at lower velocity, therefore with less power.
It’s also hyperbolic for the DOJ to use the term “destructive” to characterize any firearm. The NFA restricts “destructive devices,” defined to include explosives, incendiaries, poison gases, rockets, missiles, and mines (and, inappropriately, small arms that have bores greater than a half-inch in diameter, including all common shotguns other than .410s.) Also, the term “weapon of mass destruction” refers to a nuclear, radiological, chemical, or biological weapon, not a firearm of any sort.
“Easy concealability” — Even with their adjustable-length stocks collapsed to their shortest position, the most common “short-barreled” rifles today—M16 variants and AR-15s with barrels of 10.3-14.5 inches length—are roughly 25.8-30 inches in overall length. That’s not concealable. The overall length of the Glock 19, probably the most popular handgun for concealed carry, is a little over 7¼ inches. (Note that the stock of an M16 or AR-15 must remain installed on the rifle, or the rifle will not function.)
“Susceptible to criminal misuse” — The frequency with which criminals misuse a type of firearm has no bearing on the right of law-abiding Americans to keep and bear it. As Heller said with respect to handguns—which have always been much more “susceptible” to criminal use than any type of rifle or shotgun—but which Heller-signatory Justice Alito apparently forgot in Johnson:
It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. . . . 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. . . .
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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
And sixth, the claims by the DOJ in its recent brief in U.S. v. Peterson, that sound suppressors are “nonessential firearm accessories that are uniquely adaptable to criminal misuse” and that the NFA imposes “modest burdens” on their ownership are flawed for the following reasons:
The Second Amendment was adopted to guarantee the right of the people to keep and bear arms for a military purpose, and sound suppressors, increasingly common in military use over the past couple of decades (as their technology has improved), will soon be standard-issue military items because, in some situations, they are essential.
As explained by the Army, its new M7 rifle is “designed to be suppressed and comes with a quick detach suppressor optimized for the system to deliver reduction in both sound and visible flash signatures with a significant decrease in the flow of gases back to the receiver” (the part of the rifle immediately behind the barrel).
A “reduction in . . . sound . . . signature” is important for three reasons. It can help protect the user’s hearing, it makes it easier for the user to verbally communicate with allies during combat (and in a peacetime setting, make it easier to hear the instructions of a range safety officer or instructor on a firing range), and it reduces the ability of an enemy to determine the user’s location by the sound of his gunfire.12
A “reduction in . . . visible flash signatures” is important for two reasons. It reduces the ability of an enemy to locate the user visually, and it reduces the chance that the user’s ability to see at night will be adversely affected during combat at night (which would also be relevant in a defensive situation at night within one’s home).
A “decrease in the flow of gases back to the receiver” is important for two reasons. The flow of hot gunpowder gas into the receiver reduces a rifle’s mechanical reliability because it evaporates or moves lubricant from the rifle’s bolt and other critical areas, and some of the gas tends to exit the receiver into the user’s eyes, rendering him unable to see clearly.
Also, the brief contradicts itself. If suppressors were accessories not within the scope of the right to arms, there would be no reason to defend the NFA’s restrictions as “modest burdens” on that right. Recall that in Miller, the Court never considered whether the NFA’s restrictions on the shotgun violated the Second Amendment, as Miller and Layton had claimed, because the Court opined that the shotgun was an arm to which the amendment protected the right in the first place.
And, those “modest burdens”—background check, prohibitive tax, registration, etc.—did not exist during the founding era.
Also, the brief makes the mistakes Justice Alito made in his dissent in Johnson v. U.S. (2015), but with regard to suppressors: thinking that suppressors are “especially susceptible to criminal misuse,” and that, even if they are, that negates the right of law-abiding Americans to keep and bear them.
These considerations easily support the conclusion that bans on “assault weapons” and >10-round magazines, and the NFA’s restrictions on “short-barreled” rifles and shotguns, sound suppressors, and some or all AOWs are unconstitutional. And the same is true for the 1986 ban and NFA restrictions on automatic point-target small arms and similar restrictions on protective armor, and would be true of similar restrictions on point-target weapons and protective equipment of the future.
Endnotes:
1. The other requirements include, but are not limited to, passing a background check, payment of a tax (reduced to $0.00, but not eliminated, by President Trump’s “Big, Beautiful Bill”), and obtaining written permission from the Bureau of Alcohol, Tobacco, Firearms and Explosives to transport the rifles and shotguns across state lines. These requirements are unconstitutional, because they didn’t exist in the founding era, and because in 1939, the tax ($200, equivalent to over $4,000 in today’s dollars) was intended to be prohibitive.
2. In other contexts, Justice Thomas has said that the Court should overturn decisions that are “demonstrably erroneous.” However, Chief Justice Roberts has said “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” (A rule he didn’t follow in Heller.) And Justice Kavanaugh, in his Snope statement, suggested that the Court’s prior opinions will be the only things he will consider if the Court takes on the gun and magazine bans.
3. In the military, during the first half of the 20th century, rifles, automatic rifles, and medium machine guns used the same caliber of ammunition: .30 U.S., otherwise known as .30-’06 Springfield, probably the most popular caliber of ammunition for deer hunting. More recently, rifles, automatic rifles, and light machine guns have used intermediate-caliber ammunition (5.56mm NATO), while medium machine guns have used heavier 7.62mm NATO. Today, the military is returning to having all such firearms use a single caliber of ammunition: 6.8x51mm, more powerful than 5.56mm NATO, but with a thinner, lighter bullet than 7.62mm NATO.
4. George Mason, whose Virginia Declaration of Rights was the model for the Declaration of Independence and Bill of Rights: “[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them. . . . [W]hat is the militia? It is the whole people, except for a few public officials.”
Also, “That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free state.”
Samuel Adams, a leader of the American Revolution and signer of the Declaration of Independence: “To preserve liberty it is essential that the whole body of people always possess arms.”
Tench Coxe, a delegate to the Continental Congress and the first Assistant Secretary of the Treasury: “As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms.”
Also, “The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them.”
Also, “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American . . . The unlimited power of the sword is not in the hands of the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
Noah Webster, of dictionary fame and the author of the influential “An Examination into the Leading Principles of the Federal Constitution Proposed by the Late Convention Held at Philadelphia (1787): “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power.”
Elbridge Gerry, signer of the Declaration of Independence and Articles of Confederation, delegate to the Constitutional Convention, and fifth vice-president of the United States: “What, sir, is the use of the militia? It is to prevent the establishment of a standing army, the bane of liberty. . . . Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins.”
Patrick Henry, delegate to the First Continental Congress, member of the committee that drafted Virginia’s Declaration of Rights and its constitution: “[A] well regulated militia, composed of gentlemen and yeomen, is the natural strength and only security of a free government. . . . Three million people, armed in the holy cause of liberty . . . are invincible by any force which our enemy can send against us.”
Also, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.”
5. For centuries, personal armor was commonplace. For example, at the Battle of Thermopylae in 480 BC, Spartans and other Greeks used shields, helmets, and breastplates to protect them against the arrows and other edged weapons of the invading Persian Empire’s soldiers. As noted above, in the discussion of how English courts interpreted the Statute of Northampton (1328), people had lightweight armor to protect against attacks by knife, and heavier armor to protect against battlefield weapons. However, after firearms became the dominant battlefield weapon in the Battle of Cerignola (1503), armor capable of defeating only edged weapons fell into disuse until the 20th century, when new materials capable of defeating bullets were developed.
6. See David Kopel, The First Century of Right to Arms Litigation (2015).
7. “Short-barreled” rifles and shotguns were included in the NFA because FDR’s Attorney General, Homer Cummings (a former head of the Democratic National Committee), wanted the NFA to include handguns, but Congress was not so inclined. So, because handguns are concealable, it was theorized that rifles and shotguns that have barrels shorter than 18 inches, or overall lengths less than 26 inches, were as well, and should be included in the NFA.
Originally, the NFA didn’t use the term “short-barreled,” it referred to certain rifles and shotguns solely on the basis of overall length and barrel length. It was amended to reduce the barrel length criterion for rifles to 16 inches by Public Law 86-478 in 1960. The term “short-barreled” was invented by the Gun Control Act of 1968. However, historically, rifles made with barrels shorter than those of the original have been termed “carbines.”
8. The federal “assault weapon” ban applied to a semi-automatic shotgun that could hold more than five round and that had one other proscribed feature. Colorado’s ban applies to “a nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than eight shotgun shells when combined with a fixed magazine.” Illinois’ ban (pg. 86) applies to any semi-automatic shotgun that can hold more than five rounds. Massachusetts’ ban adopted the federal definitions. New York’s ban applies to a semi-automatic shotgun that has “a fixed magazine capacity in excess of seven rounds” or “an ability to accept a detachable magazine” of any capacity. Rhode Island’s ban applies to a “semi-automatic shotgun with a fixed magazine capacity exceeding six (6) rounds, or that has the ability to accept a detachable magazine (of any capacity) and a pistol grip, or a folding or telescopic stock.” Washington’s ban applies to a semi-automatic shotgun that has a “fixed magazine in excess of seven rounds.”
In 1991, Richard Aborn, representing anti-gun activist group Handgun Control, Inc. (HCI), told the New York State Assembly, “There is no reason why a legitimate gun owner needs to have a clip (sic) capable of holding more than six rounds, and thus I would suggest the banning of clips that hold more than six rounds.” At the same time, HCI supported a total ban on compact handguns, which at the time typically held six or fewer rounds, so, in essence, Aborn and HCI were advocating a ban on just about all handguns except large revolvers.
Sen. Dianne Feinstein, whose amendment to the 1993 crime bill became the federal “assault weapon” ban, stated on the floor of the Senate on July 29 that year that the only firearms she intended to exempt were those “whose clips (sic) don’t exceed three rounds.”
9. Following the 1988 recommendation of the anti-gun Violence Policy Center to give up trying to get handguns banned, and to instead focus on “assault weapons,” as a “new topic” to “strengthen the handgun restriction lobby,” Sen. Howard Metzenbaum (D-Ohio) introduced the first ban in Congress in 1989 (S. 386). Like other bans proposed later, it proposed to ban various firearms by name. Metzenbaum introduced a new ban in 1993 (S. 653), which included the “Bushmaster Auto Rifle.”
At the time, I was in the NRA’s Research and Information Division and had never heard of that rifle, so I called Bushmaster, who said they never made a rifle by that name. So, I went through annual volumes of the Gun Digest, which had photos and descriptions of all firearms manufactured each year. I found the “Bushmaster Auto Rifle” in one of those volumes, so I called Bushmaster again and faxed them the relevant photo and description of the rifle in question. Bushmaster said that Gun Digest had misnamed the rifle; the correct name was something else. (I forget what.)
By late 1993, the effort to get a ban through the Senate had been taken over by Dianne Feinstein (D-Calif.). On November 17 that year, Metzenbaum spoke on the Senate floor in support of Feinstein’s legislation, saying that it “will be a major step in achieving the objective that we have in mind.” He also said, “I don’t know much about [assault] weapons” but “they look quite ominous. We have pictures of them.”
Apparently, in deciding which guns to include in Metzenbaum’s bills, someone on his staff had thumbed through the same Gun Digest, looking at “pictures,” writing down the names of “ominous”-looking firearms, without verifying that the names were correct.
10. Confining area-target and heavier weapons to the organized component of the militia (the state Guards) would better satisfy the goal of the Second Amendment if it were not subject to being federalized at a president’s whim.
11. In Thompson/Center, the Court said that “the NFA’s object was to regulate certain weapons likely to be used for criminal purposes . . . the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used.” In his dissent in Johnson, Justice Alito said “sawed-off shotguns . . . are uniquely attractive to violent criminals.”
12. One way for an enemy to determine the location of someone firing at him is by noticing the time difference between when he hears the bullet pass him with a supersonic crack, or hit something nearby, and when he hears the sound of the rifle firing, which travels at the speed of sound. For example, with an M16 or AR-15 using M855 ammunition, at 500 feet above sea level in 60-degree F ambient temperature, the difference is about 0.16 seconds at 100 yards, about 0.31 seconds at 200 yards; and about 0.44 seconds at 300 yards.
Copyright © Mark Overstreet 2025