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Sporting Purposes

Has any of our legal brains thought about seeing if the sporting purposes language could be tossed out for vagueness? Or tossed essentially rendered meaningless? Could original public meaning originalism actually be a problem for us when it comes to interpreting such a clause? Tam’s gotten me thinking about this:

[B]ut [the Saigas] surging popularity in 3-gun competition has driven more large magazines to the market. Apparently 3-gun doesn’t qualify as a “sporting purpose”, since no clay pigeons, feathered critters, or stack-barrel Perazzis wielded by Vice Presidents are involved.

There’s already a case challenging the sporting purposes clause on Second Amendment grounds, but I’m wondering if anyone has ever challenged ATF’s authority under this clause? If we can demonstrate the gun is, indeed, used in shooting sports, can that overcome ATF’s authority to deny importation of it? Could this be thrown out on vagueness? Has it been tried? I don’t know the answer.

But it would seem an original public meaning originalist would suggest the term means what it was understood to mean in 1968, which wouldn’t include three gun competition, or any of the other defensive shooting oriented sports, since most of them came after GCA ’68. Thus ATF’s exercise of authority to keep out these kinds of firearms is within the scope of that term as understood by the public originally.

I suspect a vagueness argument would not work, and presumably ATF’s authority in this matter is fairly carte blanche. Otherwise, one could presume, that a sport could be created using 105mm howitzers, and then on what basis could ATF restrict their importation?

22 Responses to “Sporting Purposes”

  1. The Second Amendment wasn’t added to protect our right to be entertained. There is a legitimate argument, I suppose, that the authority to regulate international commerce is pretty strong, but when James Madison wrote about his ability to hit a target the size of a man’s face at 100 yards with a rifle, he wasn’t talking about sport.

  2. K-Romulus says:

    I don’t know if you’ve already seen this, but ATF issued a 126-page report on “sporting use” as it applied to the importation of AWB-compliant firearms:

    http://www.atf.gov/publications/download/treas/treas-study-on-sporting-suitability-of-modified-semiautomatic-assault-rifles.pdf

    The report details ATF’s view of the definition of “sporting.” It explains how “practical shooting” doesn’t count.

  3. K-Romulus says:

    I forgot to mention that the report was published back in 1998.

  4. Ginn says:

    i would also mention that the link you posted regarding that court case is from 2006….before heller and mcdonald

  5. David Lawson says:

    Original public meaning of ‘sporting use’ would not rule out future types of ‘sport’, in my humble opinion anymore than it rules out future arms or future ‘presses’.

  6. Sebastian says:

    Ginn…. may not be the right case. There is one out there though on this part.

  7. Tam says:

    Has any of our legal brains thought about seeing if the sporting purposes language could be tossed out for vagueness?

    I was just talking about this to Shootin’ Buddy on the phone today. We both thought it might be pretty vulnerable in the post-Heller and –MacDonald era.

    This would be a good next line of attack, I think.

  8. Ian Argent says:

    What in the wide wide world of sports are the decision makers at the BATFE thinking? Seriously, this is them playing in political traffic

  9. Carl from Chicago says:

    I think it would be foolhardy (or short-sighted at least) to attempt protecting types or classes of arms by demonstrating they have a sporting purpose.

    The framework for these arguments has fundamentally shifted.

    The core of the second amendment right has now been recognized as one of defense … of self, family, home, etc. Indeed, it seems to me that the burden of proof is not on someone to convince the government that a particular arm is useful for defense … the burden of proof is on the government to convince us that a particular arm is useless for defense.

  10. Ian Argent says:

    @Carl: Correct – the defense for this is not “well, someone shot some 3-gun with a similar model”, it’s “why in tarnation does it need to be “suitable for sporting purposes” anyway to be legal to possess without an absurd tax stamp?” The foolhardiness on display here is BATFE’s

  11. dustydog says:

    Hmm.
    FDA’s jurisdictions are granted by several interlocking laws (mainly the Federal Food, Drug, and Cosmetics Act and PDUFA). Wholesome food (not adulterated or filthy) is safe and mostly exempt from federal regulation. Dietary supplements are mostly exempt from regulation. If somebody (like the Chinese) want to import some exotic plant (usually for dietary supplements), they need to show that it has a history of use as food.

    The reasoning is that Americans have experience with food, our grandparents and parents passed the essential information along, and that knowledge predates FDA. Food is grandfathered in. The law was much better written than current laws – it actually explains that everybody knows what butter is. If somebody sells margarine as butter, that’s a crime. If somebody sells good butter as butter, they are in the clear.

    The same reasoning could be applied to artillery, machine guns or torpedos. If enough people have experience with them, to be able to spread that information to the general population, then we don’t need the government to protect us and ensure we make the right decisions.

  12. Kevin says:

    The International Traffic in Arms Regulations and the United States Munitions List would probably limit the ability to import 105mm howitzers. That’s another ugly can of worms that I think is best ignored for now as if it doesn’t exist.

  13. Stew says:

    Is hunting still considered “sport”?

    I recently purchased a Saiga 12, and my brother’s foodie girlfriend is planning on organizing a turkey hunting expedition in VA next fall.

    I would just as soon not have the ATF steal my shotgun.

  14. Diomed says:

    In many places in the regs hunting is referred to separately from sporting purposes, but I suspect they’re confluent.

    I don’t think there’s an actual, hard and fast definition of sporting purposes – meaning the agency gets to decide what it is. At least, I’ve never seen one. (I thought there was something to the effect that only hunting was a sporting purpose, but I think I hallucinated that.) Another example of how important definitions are in the realm of laws.

  15. Jim W says:

    I wouldn’t go for vagueness, I’d go for overbreadth. The statute isn’t vague for the people it applies to. The problem is that it is supposed to ban stuff like howitzers and mortars, but it’s worded in such a way that it also bans elephant guns and a wide variety of shotguns that should be protected by our current understanding (via Heller/McDonald) of the 2nd amendment.

    I’d argue for separation of powers and due process if federal separation of powers doctrine wasn’t such a joke. Congress shouldn’t be able to delegate to the ATF a blanket power to ban any non-410 gauge shotgun that it determines to be “unsporting.” Congress’ command to the ATF is the overly vague portion but the problem isn’t vagueness, it’s the fact that Congress has given too much of its legislative powers to ATF.

  16. Lucky Forward says:

    It seems to me that this is the latest attack from the current administration on long-arm ownership (remember the ban on the sale of rifles from Korea, and the recent proposed registration of certain sales in border states). It seems the pattern would be ripe for a campaign ad from a RKBA-friendly politician.

    Long-arms won the Revolutionary War, and are key to dissuading any would-be tyranny from imposing its will on the people. What is the administration afraid of? What is its strategy? The administration’s pattern is very troubling and should be getting more attention.

  17. Diomed says:

    “Long-arms won the Revolutionary War, and are key to dissuading any would-be tyranny from imposing its will on the people.”

    Times have changed. What’s caused the most battlefield casualties in the last century-plus? What is most effective against a mechanized, armored, airborne enemy? Hint: it’s not your rifle, no matter how evil, black, and tactical it looks.

    I have long argued that the restrictions on destructive devices (and explosives to go in them) are more contra to the intent of the Second Amendment than the prohibition on new machineguns or anything else. Congress knew how vital they are when they added them to the NFA in 1968. They were afraid that the big stuff would be used against them in the coming revolution that didn’t happen, so they acted to make it hard to get. It’s a reality we, as a community and perhaps as a society, don’t want to acknowledge, because it leads to some very dark, dispiriting conclusions.

  18. mikee says:

    I know a punkin chunker. He uses a compressed air cannon to fire pumpkins in competitions. Quite a fun little sport. And the cannons are humongous.

    I would think a real howitzer or explosive propellant would be a bit too energetic to fling a pumpkin in competition, but who knows, it might be worth a try with a saboted gourd.

  19. Sigivald says:

    18 USC 921 states:

    “The term “destructive device” shall not include […] any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes. ”

    And 18 USC 925 states: (Relevant to what the AG “shall” authorize the importation of:)
    ” […] is of a type that does not fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1986 and is generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms […]”

    The IRS Code of 1986 5845(a) defines “firearm” as, essentially, “anything requiring NFA registration and nothing else”, which makes sense, since it’s the tax stamp part of the NFA.

    In other words, since a howitzer is a DD, the AG doesn’t ever have to let it be imported. All the NFA registered weapons are outside of the “sporting purposes” provision for import.

  20. Ian Argent says:

    Doesn’t that depend on the howitzer? I mean, a black-powder cannon of pre-18(mumble) design wouldn’t be a firearm at all, and thus not a DD?

    Would an explosive shell for it be a DD, though?

  21. Stew says:

    I fear the explosive shells would count as destructive devices, but first we need to invent a sport that uses 19th century design howitzers and doesn’t kill too many players.

  22. Diomed says:

    I believe the North-South Skirmish Association holds a mortar match…

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