Skip to comments.UNITED STATES v. MILLER, 307 U.S. 174 (1939)
Posted on 05/26/2008 3:20:01 PM PDT by neverdem
307 U.S. 174
MILLER et al.
Argued March 30, 1939.
Decided May 15, 1939.
Appeal from the District Court of the United States for the Western District of Arkansas. [307 U.S. 174, 175] Mr. Gordon Dean, of Washington, D.C., for the United States.
No appearance for appellees.
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, knowingly, 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 than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code, 26 U.S.C.A. 1132d (Act of June 26, 1934, c. 757, Sec. 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, 26 U.S.C.A. 1132c (June 26, 1934, c. 757, 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.' 1 [307 U.S. 174, 176] 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 Constitution, U.S.C.A.-'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.' [307 U.S. 174, 177] The District Court held that section 11 of the Act violates 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 , 57 S. Ct. 554, and what was ruled in sundry causes aris- [307 U.S. 174, 178] ing under the Harrison Narcotic Act2-United States v. Jin Fuey Moy, 1916, 241 U.S. 394 , 36 S.Ct. 658, Ann.Cas.1917D, 854; United States v. Doremus, 1919, 249 U.S. 86, 94 , 39 S.Ct. 214; Linder v. United States, 1925, 268 U.S. 5 , 45 S.Ct. 446, 39 A.L.R. 229; Alston v. United States, 1927, 274 U.S. 289 , 47 S.Ct. 634; Nigro v. United States, 1928, 276 U.S. 332 , 48 S.Ct. 388-the objection that the Act usurps police power reserved to the States is plainly untenable.
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 of Tennessee, 2 Humph., 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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness 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 [307 U.S. 174, 179] 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, Vol. 2, Ch. 13, p. 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. Ch. 1, contains an extended account of the Militia. It is there said: 'Men of republican principles have been jealous of a standing army as dangerous to liberty.' 'In a militia, the character of the labourer, 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.'
Also 'Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments 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 musketeer 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 (Laws and Resolves 1784, c. 55, pp. 140, 142), 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 age, and the Alarm List, all other men under sixty years of age, ....' Also, 'That every non-commissioned officer and private soldier of the said militia not under the controul of parents, masters or guardians, and being of sufficient 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 fire arm, &c.'
By an Act passed April 4, 1786 (Laws 1786, c. 25), the New York Legislature directed: 'That every able-bodied Male Person, be- [307 U.S. 174, 181] ing a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after 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 c. 1, p. 9 et seq.), declared: 'The defense and safety of the commonwealth depend upon having its citizens properly armed 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 inrolled 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 accoutred, 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 thereto, 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 [307 U.S. 174, 182] powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds 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 officers, 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 required, 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 conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.
In the margin some of the more important opinions and comments by writers are cited. 3 [307 U.S. 174, 183] We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.
Reversed and remanded.
Mr. Justice DOUGLAS took no part in the consideration or decision of this cause.
[ Footnote 1 ] Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C.A. 1132 et seq.:
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, 26 U.S.C.A. 1132, 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.
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 regulations as may be prescribed under ( sections 1132 to 1132q) this Act for proof of payment of all taxes on such firearms.
[ Footnote 2 ] Act December 17, 1914, c. 1, 38 Stat. 785, February 24, 1919, c. 18, 40 Stat. 1057, 1130, 26 U.S.C.A. 1040-1054, 1383-1391.
[ Footnote 3 ] Concerning The Militia-Presser v. Illinois, 116 U.S. 252 , 6 S.Ct. 580; Robertson v. Baldwin, 165 U.S. 275 , 17 S.Ct. 326; Fife v. State, 31 Ark. 455, 25 Am.Rep. 556; Jeffers v. Fair, 33 Ga. 347; Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L.R.A., N.S., 168, 115 Am.St.Rep. 196, 7 Ann.Cas. 925; People v. Brown, 253 Mich. 537, 235 N. W. 245, 82 A.L.R. 341; Aymette v. State, 2 Humph., Tenn., 154; State v. Duke, 42 Tex. 455; State v. Workman, 35 W.Va. 367, 14 S.E. 9, 14 L.R.A. 600; Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on The Constitution, 5th Ed., Vol. 2, p. 646; Encyclopaedia of the Social Sciences, Vol. X, p. 471, 474.
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Also 'Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs.
And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.
Besides these explicit references to ammunition, there are the de facto descriptions of it. All the laws restricting the sale of ammo, and types of ammo such as frangible, need to be challenged, assuming the correct decision next month. Say a prayer.
Revolutionary war vets were told they could keep their government provided muskets after the war...one of the ways to pay them in some form...
On the other, I wonder what would have happened if Miller's attorney showed up there?
What's most interesting to me on this is that it was 9-0 despite a normally very split SCOTUS in that period. I think this decision could have been much more favorable if Miller's counsel showed up, despite this being a rather nasty test case.
I forgot to mention that this was a remand case, and the trial court decision was never made as there no longer was a case. Miller was dead.
government provided muskets? I would almost bet that these were private weapons.
THE PECULIAR STORY OF UNITED STATES V. MILLER Here's a cached version in html that leaves much to be desired.
I just read the copy of the original letter...It may be one of those “muskets”...”or whatever the case may be”. The intent is very clear...it was a form of payment...
Back in the early 1970’s the MSM was extremely anti-handgun, calling for the ban on all handguns.
Many TV shows had an anti-handgun line written into the scripts and we were bombarded weekly with anti-handgun propaganda.
Then the anti-handgun media discovered the US vs Miller and went ballistic.
Now every script had written into it an anti-handgun line using Miller as a “proof”. Even All In The Family and Barny Miller’s scripts spewed tha anti-gun line that “the Miller decision in the 1930’s proved that handguns wern’t ‘militia’ weapons and could be banned.”
On the other hand RIFLES and shotguns got the media’s blessing. That was before the MSM found out the new term...”Assault Rifle”.
Oh for the good old days of 1961 when Thomas J. Dodd and Emanual Cellar said...”We don’t want to ban your guns. We ONLY want to register Handguns! Long guns will not be affected!”
The Unraveling The jihadist revolt against bin Laden.
Regarding whites in general, one-quarter of those surveyed said they believed white doctors had invented AIDS in the laboratory in order to commit genocide, and nearly half said that the CIA and FBI had flooded black neighborhoods with drugs and guns so that blacks would harm one anotherfindings that suggest Jeremiah Wright is no outlier among blacks.
I'm not crazy about the last author, but she has some interesting things to say.
From time to time, Ill ping on noteworthy articles about politics, foreign and military affairs. FReepmail me if you want on or off my list.
There's a pretty complete collection of Miller documents at the Bardwell NFAlist website. Here's the link: Compilation of U.S. v. Miller documents by Patrick L. Aultice
The Government's brief is included.
among other sites. ( I'm not sure who had it first, but I found it on the NFA site first.)
But his former co-defendant, Frank Layton, was not. But he copped to a lessor charge once the indictment was reinstated. So that "further proceedings" ordered by the Supreme Court, never occurred.
And yet we hear how Miller is “settled law”.
Whichever way it goes, next month is going to prove interesting.
Not necessarily. Toward the end of the war, the French supplied a lot of "military aid".
Thanks for the ping!
The only thing “settled” is that the media hates guns.
Hopefully "academically interesting," as opposed to "Chinese Curse interesting."
The second ammendment basically tells all regulatory authority (Fed, State, County, Local, etc.) to "pound-sand" with regard to infringements on the right to keep and bear arms. And if it possesses any usefullness at all in the hands of a citizen (militia) called to put-down say, an insurrection, even the lowly potato gun would qualify.
The second ammendment doesn't recognize state-lines, county-lines, city-limits, or school grounds. What it does recognize is that without it, you sure as hell, will not be living in a "free state".
If you haven't read Scalia's opinion, it appears that you were prophetic.
The lesson as Volokh says - Scholarship matters. Good law reviews and research can influence some of the biggest decisions of this land.