The 2nd Amendment’s Day in Court

There has been a lot of debate regarding the 2nd amendment this last year, following the mass shootings in CO and CT. Everyone, from the President of the United States, to New York City Mayor billionaire Michael Bloomberg, as well as the National Rifle Association and every media outlet. There has been talk about federal gun bans, expanding background checks, and debating what the 2nd amendment does and does not cover.

One of the hottest topics in the debate for gun control revolves around the phrase  “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”, and what that phrase actually means. Both sides of the debate have argued its meaning.  Is the 2nd Amendment about Hunting? What about Personal Protection? Or even Protection against a Tyrannical Government?

Let’s take a look at the first of the only two cases that directly relate to the 2nd amendment, and which the Supreme Court has issued an opinion on regarding the 2nd amendment.


United States v. Miller, 307 U.S. 174 (1939).

The case involved a criminal prosecution under the National Firearms Act of 1934, which was passed in response to the public outcry over the St. Valentine’s Day Massacre. This requires certain types of firearms, such as fully automatic firearms, short barreled rifles and short barreled shotguns, to be registered with the Miscellaneous Tax Unit (now known as Bureau of Alcohol, Tobacco, Firearms and Explosives), which at the time was part of the Bureau or Internal Revenue (currently Internal Revenue Service), with a $200 tax, to be paid at the time of registration, and again if the firearm is ever sold. In this case, the criminal prosecution applied to the transportation of a 12 gauge shotgun with a barrel less than 18 inches in length, in interstate commerce without previous registration or possession of a stamp.

shotgunThe defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. District Court Judge Heartsill Ragon accepted the claim and dismissed the indictment, stating, “The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, ‘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.'” Judge Ragon provided no further explanation for his decision.

The U.S Government, however, appealed the decision on March 30, 1939, and the U.S. Supreme Court heard the case. Attorneys for the United   States argued four points:

  1. The NFA is intended as a revenue-collecting      measure and therefore within the authority of the Department of the      Treasury.
  2. The defendants transported the shotgun from Oklahoma to Arkansas,      and therefore used it in interstate commerce.
  3. The Second Amendment protects only the      ownership of military-type weapons appropriate for use in an organized      militia.
  4. The “double barrel 12-gauge Stevens      shotgun having a barrel less than 18 inches in length, bearing      identification number 76230” was never used in any militia      organization.

On May 15, 1939 the Supreme Court, in a unanimous decision by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:

“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.”supremecourt

Describing the constitutional authority under which Congress could call forth state militia, the Court stated, “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 Court also looked to historical sources to explain the meaning of “militia” as determined by the authors of the Constitution:

“The significance 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.”

So, what does the Miller case tell us about the National Firearms Act and the 2nd Amendment? It tells us that, at least on the surface, the NFA is legal in that it is not a ban, but rather a revenue collecting measure (a tax) that the government has the power to enforce, and therefore does not infringe on our rights to own a firearm. Also, the 2nd amendment protects the ownership of military style weapons used by all able-bodied men who, when called for service in a militia would be able to bring their own firearms.

The U.S. Supreme Court has mentioned Miller in only 7 subsequent cases: McDonald v. City of Chicago (2010); Heller (2008); Printz (1997); Lewis (1980); Adams (1972); Atlanta Motel (1961); and Konigsberg (1961). Justice James Clark McReynolds authored the decision in United States v. Miller which was the only Supreme Court case that directly involved the Second Amendment until District of Columbia v. Heller in 2008 in which the District of   Columbia’s regulations act was declared an unconstitutional banning.