Among the most enduring political trends of the 20th Century was the movement to define the scope of the right to keep and bear arms as articulated in the Second Amendment, generally with a view toward framing it as narrowly as possible and ultimately relegating it to a state of disuse. Legislatively, this effort was bookended by two notable enactments. In 1911 New York City enacted the Sullivan Act, establishing the extremely strict may-issue permit scheme for handguns at issue in New York State Rifle & Pistol Association Inc. v. Bruen, currently pending before the U.S. Supreme Court, while 83 years later, Congress enacted the Federal Assault Weapons Ban in 1994 (since expired).
The first judicial sortie into this fraught terrain was the 1939 U.S. Supreme Court case of United States v. Miller.[1] In that case, Defendants Jack Miller and Frank Layton were charged with transporting an unregistered short-barreled shotgun from Arkansas to Oklahoma in violation of the National Firearms Act. The trial court dismissed the charges, citing the Second Amendment. The Supreme Court reversed, finding that the purpose of the Second Amendment was to facilitate the maintenance of an effective militia, and that
“[i]n 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.”
Reduced to its essence, Miller stood for the proposition that only weapons with military value were included within the scope of the Second Amendment’s protection. But Miller did not directly address the question of whether the Amendment entitled a person to possess a firearm outside of the context of militia service. This dramatically changed with the Supreme Court’s 2008 decision in District of Columbia v. Heller.[2] In a major blow to the prohibitionist movement that dominated the 20th Century, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” The dissenting justices countered that the Second Amendment guaranteed no individual right at all, but extended only to bearing arms in the context of militia membership.
Gun control advocates did not take Heller lying down, however. Taking their lead more from the dissent than Justice Scalia’s majority opinion, lower courts began a campaign of “massive resistance” to Heller almost reminiscent of Virginia’s fight against implementation of Brown v. Board of Education in the 1950s.[3] This reached an apogee with the 2017 U.S. 4th Circuit Court of Appeals case of Kolbe v. Hogan.[4] Seizing on Heller’s concession that “M-16 rifles and the like” might still be proscribed under “historical tradition of prohibiting the carrying of dangerous and unusual weapons,”[5] the Kolbe Court completely inverted the holding in Miller, holding in essence that the only weapons protected by the Second Amendment are those without military value. To bolster this rather extravagant conclusion, the Kolbe majority pointed to the fact that police and military forces often employ their weapons in semiautomatic mode as evidence that semiautomatic rifles are military weapons beyond the scope of Second Amendment protection.
The Kolbe majority’s view went largely unchallenged until June 2021, when California U.S. District Court judge Roger Benitez issued his opinion in Miller v. Bonta.[6] Addressing California’s “assault” weapons ban, Judge Benitez wrote that
“[l]ike the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller … and … United States v Miller … Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.”[7]
Are Semiautomatic Rifles Protected by the Second Amendment?
Kolbe and Bonta encapsulate the two basic – and fundamentally opposed – views of the scope of the Second Amendment. Which is correct? Justice Scalia pointed us to the answer in Heller itself, observing that
“it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ As we said in United States v. Cruikshank … (1876), ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”[8]
He further noted that “[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms,” and that while
“the Second Amendment's prefatory clause announces the purpose for which the right was codified, to prevent elimination of the militia, [t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting … the historical reality [is] that the Second Amendment was not intended to lay down a ‘novel principl[e]’ but rather codified a right ‘inherited from our English ancestors’”[9] (emphasis added).
In reaching the conclusion that the Second Amendment protects an individual right to carry arms for self-defense, Justice Scalia relied heavily on the history of the right. Referring to other, unenumerated rights, Justice Kavanaugh took a similar tack at his 2018 confirmation hearings, observing that
“the Ninth Amendment and the Privileges and Immunities Clause and the Supreme Court's doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the Supreme Court, which … protects certain unenumerated rights so long as the rights, as the Supreme Court said in the Glucksberg case, are rooted in history and tradition”[10](emphasis added).
The History and Tradition of Firearms Ownership: The Civilian Marksmanship Program
The use of history and tradition as interpretive tools is not limited to unenumerated rights. History and tradition are also vitally important sources of information about the proper meaning and scope of the rights enumerated in the Bill of Rights. A useful, if virtually ignored, source of insight into the history and tradition of firearms ownership in America is the Civilian Marksmanship Program (CMP).
The CMP began in 1903 with the formation of the National Board for the Promotion of Rifle Practice by the Secretary of the Army, later chartered under Title 10 of the United States Code.[11] The CMP was initiated as a step toward ameliorating “concern[s] about the adequacy of marksmanship training and the ability of the United States to expand the Army quickly”[12] that arose during the Spanish American War. The National Defense Act of 1916 provided for the appointment of an Army officer as Director of Civilian Marksmanship to administer the board’s programs,[13] a position which persisted until the Corporation for the Promotion of Rifle Practice and Firearms Safety assumed responsibility for the CMP in 1996.[14]
The CMP has a number of functions, including promot[ion] and monitor[ing] generalized rifle training through a system of affiliated clubs and other organizations … [and] sponsor[ing] marksmanship competitions. As part of these activities, the program sells surplus weapons to affiliated club members, loans surplus weapons to affiliated clubs, and donates and/or sells ammunition and other shooting supply items to affiliated clubs.[15]
The surplus weapons sold by the CMP are former US Army standard weapons. But while they are surplus, they have often been neither obsolete nor devoid of military value. In fact, the CMP has often offered firearm models for sale that were still in use by the U.S. Army. For example, a price list of items for sale issued by the Director of Civilian Marksmanship in approximately 1923 include Model 1903 Springfield Rifles, the then US Army standard, along with numerous supplies and accessories for it, as well as ammunition for the Model 1911 .45 caliber pistol, then the US Army standard sidearm.[16] The Price List for January 15th, 1937 continued to offer M1903 Springfield Rifles and M1911 .45 ammunition for sale.[17] Although the Army adopted the M1 Garand in 1936, the M1903 Springfield remained the Army’s mainstay for some time thereafter as the M1 was fielded. In fact, the M1903 Springfield was brought back into production and saw service during the Second World War, with production finally being halted only in 1945.[18] The Director of Civilian Marksmanship continued to sell M1903 Springfields in both M1903A1 and M1903A3 configurations after World War II,[19] despite the M1903 Springfield continuing in US service until as late as 1974.[20]
It is likely that the CMP began selling the semiautomatic M1 Garand Rifle in National Match configuration in the mid-1950s, prior to the introduction of the M14 Rifle. By 1960, the CMP was selling M1 Garands in both National Match and Service Issue configuration.[21] Although the M14 was adopted in 1957, the M1 Garand remained in service for years after that in large numbers due to mismanagement of M14 procurement; the first production order for a modest 15,669 M14 Rifles did not arrive at Springfield Arsenal until April 1958.[22] By June 1961, only 133,000 M14 Rifles existed;[23] later that year, as tensions with communist forces over Berlin increased, it was reported that all the US troops there were equipped with M1 Garand Rifles four years after adoption of the M14.[24] It would take years more to phase the M1 Garand out of service. In 1969, the Army National Guard reported receiving 15,006 M14 rifles, [25] and in 1970 reported that “[t]he allocation of approximately 200,000 M16 rifles, for distribution in FY 1971, and the projected input of additional M14 rifles for service type units [was] expected to be adequate to satisfy ARNG [Army National Guard] requirements and permit turn-in of M1 rifles.”[26] The same year the Secretary of Defense projected “full training allowances of the M14/16 rifles for major combat units” for Fiscal Year 1971.[27] Thus, many US Army units were equipped with M1 Garand Rifles as their soldiers’ primary weapon until at least 1971, at the same time the CMP was selling those same rifles to members of the public. Another popular military weapon distributed by the CMP was the semiautomatic M1 Carbine.[28] From 1958 to 1975 the CMP sold 519,093 rifles and carbines and more than 168,000 other firearms;[29] in 1989 the CMP sold approximately 6,000 M1 Garands.[30] In fiscal years 1997 and 1998 the CMP sold 16,326 M1 Garand Rifles to the public,[31] and from 2008 to 2017, the CMP sold 203,644 serviceable M1 Garand rifles to the public.[32] Additionally, the CMP received 8,000 M1911 pistols from the Army for sale to the public in 2018, as well as 87,000 M1 Garands from the Philippines and 13,000 from Turkey.[33]
Surplus military firearms have been sold to the public, including sale of US models while they were still in service, for many decades. As an example, the Catalogue of Military Goods for Sale by Frances Bannerman for April 1903 listed a vast array of military ordnance for sale, from Civil War era muzzle loading Springfield infantry rifles, to then-modern military rifles captured from Spanish forces during the Spanish-American War, to a wide variety of other “military rifles.”[34]
In 1984, the Department of Defense (DoD) declared that “[i]t is DoD policy to encourage actively and support civilian rifle and pistol marksmanship training as an important element of national defense.”[35] What’s more, the CMP has continued in existence despite substantial criticism over the years.[36] The resilience of the CMP in the face of criticism is a testament to the American tradition of arms; to the fact that this tradition includes ownership of military-style firearms by private citizens; and most importantly, to the fact that private ownership of semiautomatic firearms is deeply embedded in and integral to America’s historical tradition of arms. In sum, the existence of the CMP constitutes an ongoing contradiction of the Kolbe Court’s findings.[37]
The history of civilian ownership of semiautomatic firearms predates the CMP, however. In fact, it predates most military use of such weapons. Semiautomatic handguns were patented as early as 1863 and become commercially available by the late 19th Century.[38] Winchester introduced its first semiautomatic rifle commercially for sale in the United States in 1903, and Remington introduced one in 1906; numerous other semiautomatic rifles and shotguns became commercially available during the following three decades.[39]
The question of whether automatic weapons the like the M16 constitute the kind of “dangerous and unusual weapons” that Heller acknowledged could be prohibited under the common law is beyond the scope of this article. But what is absolutely clear is that the Kolbe Court’s ham-fisted effort to conflate the semiautomatic AR-15 Rifle with machineguns intended solely for military use is entirely erroneous. The policies of the CMP, together with the healthy civilian demand for them that has existed for well over one hundred years, clearly show that the use of semiautomatic firearms is deeply rooted in the history and tradition of American gun ownership, and that they are in no way among the “dangerous and unusual” weapons historically outside the realm of the traditional right to keep and bear arms.
Dennis P. Chapman, a retired U.S. Army officer, practices law in Virginia. He is the author of The AR-15 Controversy: Semi-Automatic Rifles and the Second Amendment (Third Brigade Press, 2021), available online from Barnes and Nobleand Amazon,
(https://www.amazon.com/dp/0578928035/ref=cm_sw_em_r_mt_dp_T0GXSBGFAHWNNHBK8BJG)
[1] United States v. Miller, 307 US 174 (1939).
[2] District of Columbia v. Heller, 554 US 570 (2008).
[3] See Benjamin Muse. Virginia’s Massive Resistance (Indiana University Press, 1961), 68.
[4] Kolbe v. Hogan, 849 F.3d 114 (2017).
[5] Heller.
[6] Miller v. Bonta, Case No. 19-cv-1537-BEN (JLB), United States District Court, S.D. California, June 4, 2021.
[7] Bonta.
[8] Heller.
[9] Id.
[10] Justice Kavanaugh, quoted at Randy Barnett, “Kavanaugh Testimony, Part 3: unenumerated rights and more.” The Volokh Conspiracy, September 15th, 2018, https://reason.com/2018/09/15/kavanaugh-testimony-part-3-unenumerated/. Retrieved June 28th, 2019. See also Washington v. Glucksberg, 521 US 702 (1997).
[11] Army’s Program for Civilian Marksmanship: Its Practices and Procedures (General Accounting Office, September 22nd, 1976), 1.
[12] Army’s Civilian Marksmanship Program is of Limited Value (General Accounting Office, May 1990), 2.
[13] James B. Trefethen and Serven, James E. Americans and Their Guns: The National Rifle Association and a Century of Service (Stackpole Books, 1967), 180 – 181.
[14] Civilian Marksmanship Program: Information on the Sale of Surplus Army Firearms (United States Government Accountability Office, February 2019), 1.
[15] Army’s Civilian Marksmanship Program is of Limited Value, 2.
[16] Stodter, C. E., Colonel of Cavalry, Director. Price List of Supplies Available for Sale to Members of the National Rifle Association, circa 1923. That this Price List dates from this period is supported by a reference to Colonel Stodter as Director of Civilian Marksmanship in “Annual Rifle Meetings Held,” Arms and the Man, February 1st, 1921, Vol. LXVIII, No. 12, 5 – 6.
[17] Director of Civilian Marksmanship. Price List of Supplies Sold to Members of the National Rifle Association of America, January 15th, 1937.
[18] Rick Hacker. “Classic Guns: The M1903 Springfield Rifle.” Shooting Illustrated, February 21st, 2019. https://www.shootingillustrated.com/articles/2019/2/21/classic-guns-the-m1903-springfield-rifle/. Retrieved June 28th, 2019.
[19] Director of Civilian Marksmanship. Price List of Supplies Authorized for Sale on Approval of the Director of Civilian Marksmanship. May 1st, 1946.
[20] Dave Campbell. “The M1903 Springfield: A Look Back.” American Rifleman, May 6, 2020. https://www.americanrifleman.org/content/the-m1903-springfield-a-look-back/.
[21] Director of Civilian Marksmanship. DCM Price List, July 1st, 1960.
[22] Robert Dale Hinrichs. Rifle Development, Standardization, and Procurement in the United States Military, 1950-1967(Master of Arts Thesis, Iowa State University, 2009), 68.
[23] Id., 72.
[24] Id.
[25] Annual Report (63rd) of Chief, National Guard Bureau for Fiscal Year 1969 (National Guard Bureau (Army)), 30 June 1969, 33.
[26] Annual Report of the Chief, National Guard Bureau for Fiscal Year 1970 (National Guard Bureau (Army)), 30 June 1970, 37.
[27] Annual Report of the Secretary of Defense on Reserve Forces (Assistant Secretary of Defense (Manpower and Reserve Affairs), Washington, D. C., 1970), 3.
[28] “M1 Carbines Available to NRA Members,” American Rifleman, May 1963, 36.
[29] Army's Program For Civilian Marksmanship: Its Practices And Procedures, 15.
[30] Evaluation of the Army’s Civilian Marksmanship Program: Statement of Richard Davis, Director, Army Issues National Security and International Affairs Division Before the Subcommittee on Readiness Committee on Armed Services House of Representatives (United States General Accounting Office, March 8th, 1990), 2; General Accounting Office, The Army’s Civilian Marksmanship Program is of Little Value, May 1990, 4.
[31] Civilian Marksmanship Program: Corporation Needs to Fully Comply With the Law on Sales of Firearms (General Accounting Office, January 1999), 6.
[32] Civilian Marksmanship Program: Information on the Sale of Surplus Army Firearms (Government Accountability Office, February 2019), 36.
[33] Id, 11 and 12.
[34] Catalogue of Military Goods for Sale by Frances Bannerman, April 1903. https://archive.org/details/francis-bannerman-military-goods-catalogue-1903/page/n3/mode/2up?view=theater.
[35] Department of Defense Directive 1025.1, SUBJECT: DoD Civilian Rifle and Pistol Marksmanship Training Program, January 31, 1984, paragraph 3.
[36] See, for example, Evaluation of the Army’s Civilian Marksmanship Program: Statement of Richard Davis, March 8th, 1990.
[37] Kolbe v. Hogan, 849 F.3d 114 (2017).
[38] The AR-15 Controversy: Semi-Automatic Rifles and the Second Amendment (Third Brigade Press, 2021), 13.
[39] Id., 15 – 16.
The Civilian Marksmanship Program, Semiautomatic Weapons, and the Second Amendment