This is the Supreme Ct. decision that Maetryx referred to:
Miller Vs. U.S. (1939)
To set this up a few things must be explained. The US Congress passed the National Firearms Act in 1934 in reponse to a baby in a stroller being killed by stray Thompson Machine Gun fire by warring Prohibition gangs. Up to this point, one could just walk into a store and buy a Thompson or BAR and put down $25 and walk out. The NFA placed a $200 transfer tax on a series of named weapons including machine guns, sawed off rifles/shotguns, pen guns, silencers etc. This tax law also mandated a registration scheme since weapons are non consumeable, as opposed to cigarretes and alcohol. Note that the law DID NOT OUTLAW these weapons, only TAXED them. Thats why when you are busted for machine gun possession you are not breaking a penal/criminal law, only a tax violation equal to smuggling cigarrettes. To this day there is no Federal Law against owning a machine gun, tho they did put in a "freeze" a few years ago - no new weapons in the "pool". Note also that this was during the great depression when $200 was a princely sum, all but denying the average citizen from owning this class of weapon. When you paid your $200 you were issued a tax stamp, just like the one on alcohol and cigarrettes, as you are today.
About five years after the NFA was passed, an enterprising lawyer for two rum runners who were caught with a sawed off Stevens double barrel shotgun in Kansas, challenged the law saying his clients, Miller and Layton, had their second amendment rights violated and should be freed. THE APPEALS COURT AGREED WITH HIM AND FREED THE MEN.
Now for the important part:
The US Government lawyers at the Just. Dept. KNEW the NFA law was unconstitutional and were on shakey ground so they DELIBERATELY PICKED this "overturn" to challenge to the Supreme Ct. Since a sawed off shotgun (at that time) could not be reasonably considered a militia weapon, they had a good case. IF SOMEONE HAD BEEN CHARGED WITH NOT FILING FOR TAX STAMP ON A FULL AUTO BAR 30-06 (a true militia weapon), and the gov't had challenged that being overturned, THEY WOULD HAVE LOST AND THE NFA ACT WOULD HAVE BEEN NULLIFIED. Remember: they are challenging an "overturn". Also note "no appearance for appellees". Miller and Layton and their lawyer were long gone, and could care less, this was a hand picked slimy gov't action.
UNITED STATES vs. MILLER et al.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF ARKANSAS.
No. 696. Argued March 30, 1939 -- Decided May 15, 1939
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. P. 177.
2. Not violative of the Second Amendment of the Federal Constitution.
P. 178.
The Court can not take judicial notice that a shotgun having a barrel
less than 18 inches long has today any reasonable relation to the
preservation or efficiency of a well regulated militia; and therefore
can not say that the Second Amendment guarantees to the citizen the right
to keep and bear such a weapon.
26 F. Supp. 1002, reversed.
Appeal under the Criminal Appeals Act from a judgement sustaining a
demurrer to an indictment for violation of the National Firearms Act.
Mr. Gordon Dean argued the cause, 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.
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 Stated 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 (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. [1]
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 -- "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 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, and
what was ruled in sundry causes arising under the Harrison Narcotics Act [2]
-- United States v. Jin 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 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 that 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 is 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 the 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 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 were forbidden to keep without
the consent of Congress. The sentiment at 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.
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."
"The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII,
affirms in reference to the early system 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
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, 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 [sic] of parents,
masters or guardians, and being of sufficient ability therefor in the
judgement 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 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 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 the "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 the 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 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 obligated 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
purchase out of the money arising for delinquents."
Most if not all of the States have adopted provision 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]
We are unable to accept the conclusion of the court below and the
challenged judgement must be reversed. The cause will be remanded
for further proceedings.