



                  UNITED STATES v. MILLER, ET AL.

                              No. 696

                SUPREME COURT OF THE UNITED STATES

      307 U.S. 174; 83 L.Ed. 1206; 59 S.Ct. 816; 1939-1 C.B. 393;
      39-1 U.S. Tax Cas. (CCH) P9513; 22 A.F.T.R. (P-H) 331;
                          1939 P.H. P5421

                       Argued March 30, 1939

                       Decided May 15, 1939


SYLLABUS

          The National Firearms Act, as applied to one indicted for
     transporting in interstate commerce a 12-gauge shotgun with a
     barrel less than 18 inches long, without having registered it
     and without having in his possession a stamp-affixed written
     order for it, as required by the ACT, held:

     1.   Not unconstitutional as an invasion of the reserved
          powers of the States. Citing Sonzinsky v. United States,
          300 U.S. 506, and Narcotic Act cases. Page 177.

     2.   Not violative of the Second Amendment of the Federal
          Constitution. Page 178.

          The Court cannot take judicial notice that a shotgun
     having a barrel less than 18 inches long has today any reason-
     able relation to the preservation or efficiency of a well
     regulated militia; and therefore cannot say that the Second
     Amendment guarantees to the citizen the right to keep and bear
     such a weapon.

APPEAL-STATEMENT

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF ARKANSAS

     26 F.Supp. 1002, reversed.

          APPEAL under the Criminal Appeals Act from a judgment
     sustaining a demurrer to an indictment for violation of the
     National Firearms Act.

COUNSEL

          Mr. Gordon Dean argued the cause [for the defendant], and
     Solicitor General Jackson, Assistant Attorney General McMahon,
     and Messrs. William W. Barron, Fred E. Strine, George F.
     Kneip, W. Marvin Smith, and Clinton R. Barry were on a brief,
     for the United States.

     No appearance for appellees.

OPINION

     MR. JUSTICE McREYNOLDS delivered the opinion of the Court.



     An indictment in the District Court Western District Arkansas,
charged that Jack Miller and Frank Layton "did unlawfully, know-
ingly, wilfully, and feloniously transport in interstate commerce
from the town of Claremore in the State of Oklahoma to the town of
Siloam Springs in the state of Arkansas a certain firearm, to wit,
a double barrel 12-gauge Stevens shotgun having a barrel less that
18 inches in length, bearing serial identification number 76230,
said defendants, at the time so transporting said firearm in
interstate commerce as foresail, not having registered said firearm
as required by Section D of Title 26, United States Code (Act of
June 26, 1934, c. 737, Sec. 4 [@ 5], 48 Stat. 1237), and not having
in their possession a stamp-affixed written order for said firearm
as provided by Section 1132c, Title 26, United States Code (Act of
June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237) and the regulations
issued under authority of the said Act of Congress known as the
`National Firearms Act' approved June 26, 1934, contrary to the
form of the statute in such case made and provided, and against the
peace and dignity of the United States." n1

     n1   Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26
     U.S.C. @ 1132. That for the purposes of this Act - "(a) The
     term `firearm' means a shotgun or rifle having a barrel of
     less than eighteen inches in length, or any other weapon,
     except a pistol or revolver, from which a shot is discharged
     by an explosive if such weapon is capable of being concealed
     on the person, or a machine gun, and includes a muffler or
     silencer for any firearm whether or not such firearm is
     included within the foregoing definition, [The Act of April
     10, 1936, c. 169, 49 Stat. 1192 added the words] but does not
     include any rifle which is within the foregoing provisions
     solely by reason of the length of its barrel if the caliber of
     such rifle is .22 or smaller and if its barrel is sixteen
     inches or more in length.

     "Sec. 3. (a)   The shall be levied, collected, and paid upon
                    firearms transferred in the continental United
                    states a tax at the rate of $200 for each
                    firearm, such tax to be paid by the transferor,
                    and to be represented by the appropriate stamps
                    to be provided by the Commissioner, with the
                    approval of the Secretary; and the stamps
                    herein provided shall be affixed to the order
                    for such firearm, herein after provided for.
                    The tax imposed by this section shall be in
                    addition to any import duty imposed on such
                    firearm.

     "Sec. 4. (a)   It shall be unlawful for any person to transfer
                    a firearm except in pursuance of a written
                    order from the person seeking to obtain such
                    article, on an application form issued in blank
                    in duplicate for that purpose by the Commis-
                    sioner. Such order shall identify the applicant
                    by such means of identification as may be
                    prescribed by regulations under this Act:
                    Provide, That, if the applicant is an individu-
                    al, such identification shall include finger-
                    prints and a photograph thereof.

             "(c)   Every person so transferring a firearm shall
                    set forth in each copy of such order the
                    manufacturer's number or other mark identifying
                    such firearm, and shall forward a copy of such
                    order to the Commissioner. the original thereof
                    with stamps affixed, shall be returned to the
                    applicant.

             "(d)   No person shall transfer a firearm which has
                    previously been transferred on or after the
                    effective date of this Act, unless such person,
                    in addition to complying with subsection (c),
                    transfers therewith the stamp-affixed order
                    provided for in this section for each such
                    prior transfer, in compliance with such regula-
                    tions as may be prescribed under this Act for
                    proof of payment of all taxes on such firearms.

     "Sec. 5. (a)   Within sixty days after the effective date of
                    this Act every person possessing a firearm
                    shall register, with the collector of the
                    district in which he resides, the number or
                    other mark identifying such firearm, together
                    with his name, address, place where such
                    firearm is usually kept, and place of business
                    or employment, and, if such person is other
                    than a natural person, the name and home
                    address of an executive officer thereof:
                    Provided, That no person shall be required to
                    register under this section with respect to any
                    firearm acquired after the effective date of,
                    and in conformity with the provisions of, this
                    Act.

     "Sec. 6.       It shall be unlawful for any person to receive
                    or possess any firearm which has at any time
                    been transferred in violation of section 3 or 4
                    of this Act.

     "Sec. 11.      It shall be unlawful for any person who is
                    required to register as provided in section 5
                    hereof and who shall not have so registered, or
                    any other person who has not in his possession
                    a stamp-affixed order as provided in section 4
                    hereof, to ship, carry, or deliver any firearm
                    in interstate commerce.

     "Sec. 12.      The Commissioner, with approval of the Secre-
                    tary, shall prescribe such rules and regula-
                    tions as may be necessary for carrying the
                    provisions of this Act into effect.

     "Sec. 14.      Any person who violates or fails to comply with
                    any of the requirements of this Act shall, upon
                    conviction, be fined not more than $2,000 or be
                    imprisoned for not more than five years, or
                    both, in the discretion of the court.

     "Sec. 16.      If any provision of this Act, or the applica-
                    tion thereof to any person or circumstance, is
                    held invalid, the remainder of the Act, and the
                    application of such provision to other persons
                    or circumstances, shall not be affected there-
                    by.

     "Sec. 18.      This Act may be cited as the ~National Firearms
                    Act.'"

                  

     A duly interposed demurrer alleged: The National Firearms Act
is not a revenue measure but an attempt to usurp police power
reserved to the States, and is therefore unconstitutional. Also, it
offends the inhibition of the Second Amendment to the Constitu-
tion - "A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms,
shall not be infringed."

     The District Court held that section eleven of the Act vio-
lates the Second Amendment. It accordingly sustained the demurrer
and quashed the indictment.

     The cause is here by direct appeal.

     Considering Sonzinsky v. United States (1937), 300 U.S. 506,
513, and what was ruled in sundry causes arising under the Harrison
Narcotic Act n2 - United States v. Jun Fuey Moy (1916), 241 U.S.
394; United States v. Doremus (1919), 249 U.S. 86, 94; Linder v.
United States (1925), 268 U.S. 5; Alston v. United States (1927),
274 U.S. 289; Nigro v. United States (1928), 276 U.S. 332 - the
objection that the Act usurps police powers reserved to the States
is plainly untenable.

     n2   Act December 17, 1914, c. 1, 38 Stat. 785; February 24,
     1919, c. 18, 40 Stat. 1057.

     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. Aymette v. State, 2
Humphreys (Tenn.) 154, 158.

     The Constitution as originally adopted granted to the Congress
power - "To provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions; To
provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service
of the United States, reserving to the States respectively, the
Appointment of Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress." With obvious
purpose to assure the continuation and render possible the effec-
tiveness of such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that
end in view.

     The Militia which the states were expected to maintain and
train is set in contrast with Troops which they were forbidden to
keep without the consent of Congress. The sentiment of the time
strongly disfavored standing armies; the common view was that
adequate defense of country and laws could be secured through the
Militia - civilians primarily, soldiers on occasion.

     The signification attributed to the term Militia appears from
the debates in the Convention, the history and legislation of
Colonies and states, and the writings of approved commentators.
These show plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense. "A
body of citizens enrolled for military discipline." And further,
that ordinarily when called for service these men were expected to
appear bearing arms supplied by themselves and of the kind in
common use at the time.

     Blackstone's Commentaries, Volume 2, Chapter 13, page 409
points out that King Alfred first settled a national militia in
this kingdom," and traces the subsequent development and use of
such forces.

     Adam Smith's Wealth of Nations, Book V, Chapter 1, contains an
extended account of the Militia. It is there said: "Men of republi-
can principles have been jealous of a standing army as dangerous to
liberty." "In a militia, the character of the laborer, artificer,
or tradesman, predominates over that of the soldier; in a standing
army, that of the soldier predominates over every other character;
and in this distinction seems to consist the essential difference
between those two different species of military force."

     "The American Colonies In The 17th Century." Osgood, Volume 1,
Chapter XIII, affirms in reference to the early systems of defense
in New England:

     "In all the colonies, as in England, the militia system was
based on the principle of the assize of arms. This implied the
general obligation of all adult male inhabitants to possess arms,
and, with certain exceptions, to cooperate in the work of defense."
"The possession of arms also implied the possession of ammunition,
and the authorities paid quite as much attention to the latter as
to the former." "A year later [1632] it was ordered that any single
man who had not furnished himself with arms might be put out to
service, and this became a permanent part of the legislation of the
colony [Massachusetts]."

     Also "Clauses intended to insure the possession of arms and
ammunition by all who were subject to military service appear in
all the important documents concerning military affairs. Fines were
the penalty for delinquency, whether of towns or individuals.
According to the usage of the times, the infantry of Massachusetts
consisted of pikemen and musketeers. The law, as enacted in 1649
and thereafter, provided that each of the former should be armed
with a pike, corselet, head-piece, sword, and knapsack. The muske-
teer should carry a `good fixed musket,' not under bastard musket
bore, not less than three feet, nine inches, nor more than four
feet three inches in length, a priming wire, scourer, and mould, a
sword, rest, bandoleers, one pound of powder, twenty bullets, and
two fathoms of match. The law also required that two-thirds of each
company should be musketeers."

     The General Court of Massachusetts, January Session 1784,
provided for the organization and government of the Militia. It
directed that the Train Band should "contain all able bodied men,
from sixteen to forty years of ago, and the Alarm List, all other
men under sixty years of age, ..." Also, "That every non-commis-
sioned officer and private soldier of the said militia not under
the control of parents, masters or guardians, and being of suffi-
cient ability therefor in the judgment of the Selectmen of the town
in which he shall dwell, shall equip himself, and be constantly
provided with a good firearm, " etc.

     By an Act passed April 4, 1786 the New York Legislature
directed: "That every able-bodied Male Person, being a Citizen of
this State, or of any of the United States, and residing in this
State, (except such Persons as are hereinafter excepted) and who
are of the Age of Sixteen, and under the Age of forty-five Years,
shall, by the Captain or commanding Officer of the Beat in which
such Citizens shall reside, within four Months after the passing of
this Act, be enrolled in the Company of such Beat. ...That every
Citizen so enrolled and notified, shall, within three Months
thereafter, provide himself, at his own Expense, with a good Musket
or Firelock, a sufficient Bayonet and Belt, 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 containing a
proper Quantity of Powder and Ball, two spare Flints, a Blanket and
Knapsack; ..."

     The General Assembly of Virginia, October, 1785, (12 Hening's
Statutes) declared, "The defense and safety of the commonwealth
depend upon having its citizens properly and taught the knowledge
of military duty."

     It further provided for organization and control of the
Militia and directed that "All free male persons between the ages
of eighteen and fifty years," with certain exceptions, "shall be
enrolled or formed into companies." "There shall be a private
muster of every company once in two months."

     Also that "Every officer and soldier shall appear at his
respective muster-field on the day appointed, by eleven o'clock in
the forenoon, armed, equipped, and accoutered, as follows: ...
every non-commissioned officer and private with a good, clean
musket carrying an ounce ball, and three feet eight inches long in
the barrel, with a good bayonet and iron ramrod well fitted there-
to, a cartridge box properly made, to contain and secure twenty
cartridges fitted to his musket, a good knapsack and canteen, and
moreover, each non-commissioned officer and private shall have at
every muster one pound of good powder, and four pounds of lead,
including twenty blind cartridges; and each sergeant shall have a
pair of molds fit to cast balls for their respective companies, to
be purchased by the commanding officer out of the monies arising on
delinquencies. Provided, That the militia of the counties westward
of the Blue Ridge, and the counties below adjoining thereto, shall
not be obliged to be armed with muskets, but may have good rifles
with proper accoutrements, in lieu thereof. And every of the said
officers, non-commissioned officer, and privates, shall constantly
keep the aforesaid arms, accoutrements, and ammunition, ready to be
produced whenever called for by his commanding officer. If any
private shall make it appear to the satisfaction of the court
hereafter to be appointed for trying delinquencies under this act
that he is so poor that he cannot purchase the arms herein re-
quired, such court shall cause them to be purchased out of the
money arising from delinquents."

     Most if not all of the States have adopted provisions touching
the right to keep and bear arms. Differences in the language
employed in these have naturally led to somewhat variant conclu-
sions concerning the scope of the right guaranteed. But none of
them seem to afford any material support for the challenged ruling
of the courts below.

     In the margin some the more important opinion and comments by
writers are cited. n3

     n3   Concerning the Militia - Presser v. Illinois, 116 U.S.
     252; Robertson v. Baldwin, 165 U.S. 275; Fife v. State, 31
     Ark. 455; Jeffers v. Fair, 33 Ga. 347; Salina v. Blaksley, 72
     Kan. 230; 83 P. 619; People v. Brown, 253 Mich. 537; 235 N.W.
     245; Aymette v. Sate, 2 Humphr. (Tenn) 154; State v. Duke, 42
     Texas 455; State v. Workman, 35 W. Va. 367; 14 S.E. 9;
     Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on
     the Constitution, 5th Ed., Vol. 2, p. 646; Encyclopedia of the
     Social Sciences, Vol. X, pp. 471, 474.

     We are unable to accept the conclusion of the court below
[District Court of the United States for the Western District of
Arkansas] and the challenged judgment must be reversed. The cause
will be remanded for further proceedings.

     Mr. Justice Douglas took no part in the consideration or
decision of this cause.


[end of court decision]
 
 Response from an attorney:
 

1.   Stephen Halbrook's "That Every Man Be Armed."  Best overall
     study of the right to bear arms in historical and legal
     context.  Available from Second Amendment Foundation,
     Bellevue, Washington.  (SAF also has a good set of law
     review reprints on federal and state constitution issues. 
     Suggest you order them; you'll find them fascinating.)

2.   My CATO Institute monograph. (CATO Institute, 224 Second St.
     SE, Washington, DC 20003.  $2.  Ask for Policy Analysis
     109.)

     Halbrook and other scholars who have studied the issue
conclude:

1.   The Second Amendment intended to guarantee an individual
     right to bear arms.  By the militia, the framers meant all
     adult males.  ("well-regulated" meant "well-practiced.")

2.   The Supreme Court's Miller decision does not invalidate an
     individual right.  It just says that the gun in question has
     to be related to the milita.  In Miller, the Court saw no
     evidence that sawed-off shotguns were usable by a militia,
     so the court said strict controls on sawed-offs were OK.

3.   The appellate and trial federal courts have been bad on this
     issue; many of them misstate Miller's holding.  In a recent
     case in Georgia federal district court, Farmer v. Higgins,
     the court upheld the right to own full-autos, because they
     are militia weapons.  (Nevertheless, the court also upheld
     the current restrictions, for a variety of technicalities.)

4.   Best part: 43 states have in their own state Constitution a
     right to bear arms.  (Sorry, not Calif.)  Only two of those
     state courts have said that the state constitutional right
     doesn't apply to individuals. (Kansas and Mass.)   

     In the last couple decades, courts in Colorado, WV, Oregon,
Nebraska and elsewhere have struck down anti-gun laws under the
provisions of the state constituion.

     In short, we're solid winners under both original intent and
Supreme Court precedent.  Unfortunately, lower courts are not as
deferential to such things as they claim to be.  Morton Grove
would have been thrown out by any court that cared about the
original meaning of the Constitution, or US v. Miller.

     The current Supreme Court too, is often more interested in
upholding state power than in vindicating the Bill of Rights as
the framers intended.  That's why I'm a pessimist about taking a
case to the high court.

     So our situation is somewhat like the 1st amendment in 1920. 
The right is clear, but federal courts haven't done a good job of
protecting it.  The more we can spread the word about the
scholarship of the Second Amendment, the stronger we'll be over
time.



     Best wishes,

     David Kopel
     Attorney-at-Law
     Former D.A. - Manhattan, NY

 
