UNITED STATES vs MILLER

COURT OPINION AND DOCUMENTS

I spent countless hours researching and assimilating this material in 1989 and 1990. Please feel free to print, copy, or download it to other websites - - but don't alter the contents. It is not to be used for commercial or other profit-making ventures. I ask that I get credit (or discredit) for the work, so if you feel a compelling need to make annotations, please do so at the beginning or the end of the text and specify it as such.

Patrick L. Aultice

aultice@hotmail.com

 

UNITED STATES vs MILLER

COURT OPINION & DOCUMENTS

compiled and transcribed by

Patrick L. Aultice

Table of Contents

FOREWORD 4

JACK MILLER 5

CHARGE BEFORE COMMISSIONER 6

MINUTES 7

RECOGNIZANCE 8

AFFIDAVIT OF SURETY 9

INDICTMENT, JUNE 2, 1938 10

DEMURRER TO INDICTMENT, JUNE 11, 1938 11

MEMO OPINION, JUNE 11, 1938 13

INDICTMENT, SEPTEMBER 21, 1938 14

DEMURRER TO INDICTMENT, JANUARY 3, 1939 16

MEMO OPINION, JANUARY 3, 1939 18

PETITION FOR APPEAL 19

ASSIGNMENTS OF ERROR 20

STATEMENT OF JURISDICTION 21

NOTICE OF SERVICE 25

PRAECIPE FOR TRANSCRIPT OF RECORD 26

BRIEF FILED BY THE UNITED STATES 28

OPINION OF THE SUPREME COURT 41

MANDATE 48

PROBATION DOCUMENT 50

JUSTICE JAMES CLARK McREYNOLDS 52

DEFINITIONS 54

VIEWPOINT REGARDING UNITED STATES vs MILLER 56

BIBLIOGRAPHY 64

FOREWORD

I originally became curious about the details of United States vs Miller several years ago when I found both sides of the Second Amendment argument claiming it supported their position. Finding this a bit puzzling, I decided to do some research to determine what was what.

I think the result of my efforts will help make you an instant "expert" on United States vs Miller: if more than fifty people alive have read all these documents, I'd like to meet them. I have included every published procedural document of the case leading to the appeal, from mundane court documents to the Supreme Court opinion written by Justice James McReynolds. I've included a thumbnail biography of McReynolds himself, along with my own viewpoint of the decision.

The biography on McReynolds is based, with a Second Amendment slant, on a chapter written by David Burner in The Justices of the United States Supreme Court: Their Lives and Major Opinions, edited by Leon Friedman and Fred L. Israel. I refer you to this for a better-written and expansive account of McReynolds' life.

The main source of supporting facts for my viewpoint on Miller is a five-volume series edited by Bernard Schwartz, entitled The Roots of the Bill of Rights. If your public library does not have the series, encourage them to purchase it. It is an excellent compilation of the events and documents leading to the Bill of Rights. I had read many of these manuscripts before, but not within one set of volumes.

The process of transcribing documents from photocopies of the original is tedious at best. With the help of my wife, Diann, I have proofread every word numerous times, but it is likely small mistakes remain. I am confident they are of a minor nature and will not detract from your understanding of the case. Everything, including misspelled words, has been transcribed as found. I did rearrange line spacing of the original documents to facilitate your reading comfort. Words in boldface generally indicate they were part of a pre-printed court document. Documents are presented in chronological order. Auxiliary information that could not be easily incorporated in word-processed text is noted within brackets: [ ] and { }. Any word or signature I was not reasonably certain of is followed by a question mark: ? . I referred to the grammar book faithfully for the sections I wrote, but Perfectionism lost out to Time. I request your tolerance in that regard.

My special thanks to Taylor Joyce, U.S. District Court, Western District of Arkansas, for his help on the background of Jack Miller.

JACK MILLER

On September 22, 1938, the Fort Smith, Arkansas, Southwest American reported that "Jack Miller and Frank Layton of Claremore were re-indicted on a charge of transporting a sawed-off shotgun from Claremore to Siloam Springs last April 18." Both Miller and Layton had originally pleaded guilty upon their first indictment, but Federal Judge Heartsill Ragon suggested they withdraw their plea and appointed a lawyer to represent them. In the ensuing arguments, Judge Ragon sustained the lawyer's demurrer to the indictment, holding that the National Firearms Act of 1934 was unconstitutional. The prosecution then appealed the case to the Supreme Court.

Jack Miller was a bit of a curiosity. He was a Native American, weighed 240 pounds, and as a member of the Irish O'Malley gang participated in several bank robberies. Miller was the gang's "follow-up" man, providing cover for other members who initiated the hold-ups.

Indicted with other gang members for the simultaneous robberies of two banks in Okemah, Oklahoma, on December 22, 1934, Miller turned state's evidence and received immunity. He was released from prison on November 27, 1935, following the conviction of four other gang members for the robbery. However, six days later, on December third, the wife of one of the four remaining criminals visited her husband and was able to smuggle in a firearm. A breakout followed immediately, and the four escaped. The chief of detectives was fatally wounded and a prisoner who tried to escape with the gang members was killed. And, for a short while, state's evidence Miller was no doubt a very worried man. Within a week, however, two of the escaped gang members had been killed and the other two re-captured.

Obviously, Miller had reason to be concerned about his personal safety, but whether this had anything to do with his possession of the infamous sawed-off shotgun two-and-a-half years later is speculative. Considering current efforts to ban or prohibit various firearms, the other indictments for his September, 1938, court session are insightful: most were for moonshining, and one was for carrying a couple of ounces of marijuana across state lines without paying a transfer tax.

Alas, Jack Miller's end was an unhappy one. The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body. He was forty years old.

Little was reported regarding Frank Layton. He pleaded guilty to the charge of transporting a sawed-off shotgun after the Supreme Court decision and was placed on five year's probation by Judge Heartsill Ragon on January 8, 1940. Layton was discharged from supervision on January 29, 1944.

CHARGE BEFORE COMMISSIONER

 

District Court of the United States

Western District of Arkansas

Fort Smith Division

United States vs. Jack Miller

Charge before Commissioner: Violation National Fire Arms Act.

 

Being sufficiently advised in the premises, the amount in which the defendant Jack Miller is held to bail in the above entitled matter is reduced to $2000.00.

This May 3, 1938.

 

{signed} Heartsill Ragon

Judge.

MINUTES

Minutes United States District Court

Fort Smith Division, May 3, 1938.

At Harrison, May 3, 1938.

 

US v Jack Miller Frederick for U.S.

Order reducing bail bond of defendant Miller to $2000.00.

[initialed] T. R.

RECOGNIZANCE

[This document filed May 19, 1938, William S. Wellshear, Clerk, by Truss Russell, Deputy Clerk.]

UNITED STATES OF AMERICA

Western District of Arkansas ss:

Ft. Smith Division

BE IT REMEMBERED, That on this 16th day of May A.D. 1938, before me, Paul McKennon, a United States Commissioner for the said Western District of Arkansas, Ft. Smith Division, personally came Jack Miller Principal and D. A. Blackburn Sureties and jointly and severally acknowledged themselves to owe the United States of America the sum of Two Thousand Dollars, to be levied on their goods and chattels, land and tenements, if default be made in the condition following, to-wit:

THE CONDITION of this Recognizance is such, that if the said Jack Miller Principal shall personally appear before the District Court of the United States in and for the Western District of Arkansas, on the opening day of the June term, 1938, to be begun and held at the City of Ft. Smith, at 9 o'clock A M., on the 6th day of June A. D. 1938, and from day to day and from time to time thereafter, until finally discharged therefrom, then and there to answer the charge that on or about the 18th day of April 1938, within said district in violation of 1138e Title 35 and 1132b 113e Title 26 USCA he did unlawfully possess a firearm which was unlawfully transfered contrary to the form of the statute in such cases made and provided and against the peace and dignity of the United States of America, and then and there abide the judgement of the said Court, and not depart without leave thereof, then this Recognizance to be void, otherwise to remain in full force and virtue.

{signed} Jack Miller

{signed} D. A. Blackburn

Taken and acknowledged before me on the day and year first above written.

{signed} Paul McKennon

United States Commissioner as aforesaid.

AFFIDAVIT OF SURETY

Affidavit of Surety.

UNITED STATES OF AMERICA

Western District of Arkansas ss:

Ft. Smith Division

D. A. Blackburn, a surety on the annexed recognizance, being duly sworn, deposes and says that ..he resides at Clarksville in the county of Johnson in said District, that ..he is the owner of real estate in Johnson county in the District of Arkansas, that ..he is worth at least the sum of 2,000 over and above all his, her, just debts and liabilities, in property subject to execution and sale, and that his, her, property consists of real and personal property in Johnson county, Arkansas located at. . .

Affiant's Signature {signed} D. A. Blackburn

Sworn to and subscribed before me, this 16th day of May,

A. D. 1938

{signed} Paul McKennon

United States Commissioner as aforesaid

INDICTMENT, JUNE 2,1938

No. 3917

Dist. Court United States,

Western Dist. of Ark.

THE UNITED STATES vs. Jack Miller [and] Frank Layton

INDICTMENT 1 ct. Sec. 1132c, T 26

U.S.C.A.

A TRUE BILL

{signed} M. Johnson, Foreman.

Filed June 2, A.D. 1938

Wm S. Wellshear, Clerk.

By Truss Russell, Deputy.

{no signature} U.S. Attorney.

United States of America,

Western District of Arkansas ss:

Ft. Smith Division

In the District Court of the United States, in and for the Western District aforesaid, at the January Term thereof, A.D. 1938,

The Grand Jurors of the United States, impaneled, sworn, and charged at the Term aforesaid, f the Court aforesaid, on their oath present, that Jack Miller and Frank Layton on the 18th day of April, in the year of our Lord nineteen hundred thirty-eight, in the Ft. Smith division of said district and within the jurisdiction of said Court, 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-guage 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 in their possession a stamped-affixed written order for said firearm as provided and required by Section 1132c, Title 26, United States Code (June 26, 1934, c 757, #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.

Clinton R. Barry, United States Attorney.

By: {signed} Duke Frederick, Assistant United States Attorney

DEMURRER TO INDICTMENT, JUNE 11, 1938

[Filed Jun.11, 1938, Wm. S. Wellshear, Clerk, by Truss Russell, Deputy Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

THE UNITED STATES, Plaintiff,

vs

JACK MILLER and FRANK LAYTON, Defendants.

DEMURRER TO INDICTMENT

Come the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as National Firearms Act, approved June 26, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved by the States of the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these said defendants, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) and Section 1132 (j) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c), transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the statutes of the United States.

5. That the indictment charges the defendants "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132(c) and section 1132(j) Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26, 1934"; that said Section 1132(c) and Section 1132(j) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer of said firearms by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the statutes of the United States.

{signed} Paul E. Gutensohn

Attorney for Defendants

MEMO OPINION, JUNE 11,1938

[Filed June 11, 1938, Wm. S. Wellshear, Clerk.]

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

United States, Plaintiff,

v.

Jack Miller and Frank Layton, Defendants.

 

MEMO. OPINION

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, c.757, Section 11, 48 Statute 1239. 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 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."

The demurrer is accordingly sustained.

This the 11 day of June 1938.

{signed} Heartsill Ragon

United States District Judge.

INDICTMENT, SEPTEMBER 21,1938

No. 3926

District Court United States, Western Dist. of Arkansas

THE UNITED STATES

vs.

Jack Miller [and] Frank Layton

INDICTMENT. 1 ct. Sec. 1132j, T 26, USC

A TRUE BILL.

{signed} Richard R. Hampton (?), Foreman.

Filed Sept. 21, A.D. 1938

Wm. S. Wellshear, Clerk.

By Truss Russell, Deputy.

{no signature} U.S. Attorney

 

United States of America,

Western District of Arkansas ss:

Ft. Smith Division

In the District Court of the United States, in and for the Western District aforesaid, at the June Term thereof, A.D. 1938,

The Grand Jurors of the United States, impaneled, sworn, and charged at the Term aforesaid, of the Court aforesaid, on their oath present, that Jack Miller and Frank Layton on the 18th day of April, in the year of our Lord nineteen hundred thirty-eight, in the Ft. Smith division of said district and within the jurisdiction of said Court, 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-guage 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 firearms as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237), and not having in their possession a stamped-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.

Clinton R. Barry, United States Attorney.

By: {signed} Duke Frederick

Assistant United States Attorney

DEMURRER TO INDICTMENT, JANUARY 3, 1939

[No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J. A. Phillips, Deputy Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

THE UNITED STATES, PLAINTIFF,

VS.

JACK MILLER AND FRANK LAYTON, DEFENDANTS.

 

DEMURRER TO INDICTMENT

 

Comes the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as the National Firearms Act, approved June 26th, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved to each of the States in the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendants under the allegations of the indictment, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c) , transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the laws and statutes of the United States.

5. That the indictment charges the defendants with "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132 (c), Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26th, 1934"; that said Section 1132 (c) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the laws and statutes of the United States.

6. That any provision of the said National Firearms Act, approved June 26th, 1934, which requires a registration of the said firearm as required by Section 1132 (d) of Title 26 United States Code, and not having in their possession a stamp affixed order for said firearm as provided by Section 1132 (c) Title 26 United States Code, is in violation and contrary to the said Second Amendment to the Constitution of the United States, is unconstitutional and does not state facts sufficient to constitute a crime under the statutes of the United States and the indictment further does not state sufficient facts to constitute a crime under the laws and statutes of the United States in that there was a total failure to charge a transfer of said firearms by or to the said defendants.

{signed} Paul E. Gutensohn

Attorney for Defendants

MEMO OPINION, JANUARY 3, 1939

[No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J.A. Phillips, Deputy Clerk.]

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

United States, Plaintiff,

v.

Jack Miller and Frank Layton, Defendants.

MEMO. OPINION

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. 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 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."

The demurrer is accordingly sustained.

This the 3rd day of January 1939.

{signed} Heartsill Ragon

United States District Judge.

PETITION FOR APPEAL

[No. 3926, filed January 30, 1939, by Wm. S. Wellshear, Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

 

UNITED STATES OF AMERICA, Plaintiff,

v.

JACK MILLER and FRANK LAYTON, Defendants

 

PETITION FOR APPEAL

 

Comes now the United States of America, plaintiff herein, and states that on the 3d day of January, 1939, a demurrer of the defendants Jack Miller and Frank Layton to the indictment herein was by the Court sustained, and the plaintiff feeling aggrieved at the ruling of the District Court sustaining said demurrer, prays that it may be allowed to appeal to the Supreme Court of the United States for a reversal of said judgement and order and that a Transcript of Record in this cause duly authenticated may be sent to said Supreme Court of the United States.

Petitioner submits and presents to the Court herewith a statement showing the basis of the jurisdiction of the Supreme Court to entertain an appeal in said cause.

UNITED STATES OF AMERICA

{signed} Clinton R. Barry

CLINTON R. BARRY

United States Attorney,

Western District of Arkansas

ASSIGNMENTS OF ERROR

[No. 3926, filed January 30, 1939, by Wm. S. Wellshear, Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

 

UNITED STATES OF AMERICA, Plaintiff,

v.

JACK MILLER and FRANK LAYTON, Defendants

 

ASSIGNMENTS OF ERROR

 

Comes now the United States of America by Clinton R. Barry, United States Attorney for the Western District of Arkansas, and avers that in the record proceedings and judgment herein there is manifest error and against the just rights of the said plaintiff, in this, to wit:

1. That the court committed material error against the plaintiff in holding that Section 11 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239, is invalid as violating the Second Amendment to the Constitution of the United States providing that "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."

2. That the court committed material error against the plaintiff in sustaining the demurrer of the defendants Jack Miller and Frank Layton to the indictment.

 

{signed} Clinton R. Barry

CLINTON R. BARRY

United States Attorney

Western District of Arkansas.

STATEMENT OF JURISDICTION

[No. 3926, Filed January 30, 1939, by Wm. S. Wellshear, Clerk]

 

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

 

UNITED STATES OF AMERICA, Plaintiff,

v.

JACK MILLER and FRANK LAYTON, Defendants.

 

STATEMENT OF JURISDICTION

 

In compliance with Rule 12 of the Supreme Court of the United States, as amended, the United States of America submits herewith its statement showing the basis of the jurisdiction of the Supreme Court to entertain an appeal in this cause:

A. The statutory jurisdiction of the Supreme Court to review by direct appeal the judgement complained of is conferred by Title 18, Section 682, of the United States Code, otherwise known as the "Criminal Appeals Act", and by Section 345, Title 28, of the United States Code.

B. The statute of the United States, the constitutionality of which is involved herein, is Section 11 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239 (U.S.C., Title 26, Sec. 1132j).

Section 11 of the National Firearms Act is as follows:

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.

Section 5 of the National Firearms Act, 48 Stat. 1238 (U.S.C., Title 26, Sec. 1132d), referred to in Section 11 of the Act is as follows:

(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.

(b) Whenever on trial for a violation of section 6 hereof the defendant is shown to have or to have had possession of such firearm at any time after such period of sixty days without having registered as required by this section, such possession shall create a presumption that such firearm came into the possession of the defendant subsequent to the effective date of this Act, but this presumption shall not be conclusive.

Section 4 of the National Firearms Act, 48 Stat. 1237 (U.S.C., Title 26, Sec. 1132c, referred to in Section 11 of the Act, is as follows:

(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 Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this Act: Provided, That if the applicant is an individual, such identification shall include fingerprints and a photograph thereof.

(b) The Commissioner, with the approval of the Secretary, shall cause suitable forms to be prepared for the purposes above mentioned, and shall cause the same to be distributed to collectors of internal revenue.

(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 regulations as may be prescribed under this Act for proof of payment of all taxes on such firearms.

(e) If the transfer of a firearm is exempted from the provisions of this Act as provided in section 13 hereof, the person transferring such firearm shall notify the Commissioner of the name and address of the applicant, the number or other mark identifying such firearm, and the date of its transfer, and shall file with the Commissioner such documents in proof thereof as the Commissioner may by regulations prescribe.

(f) Importers, manufacturers, and dealers who have registered and paid the tax as provided for in section 2(a) of this Act shall not be required to conform to the provisions of this section with respect to transactions in firearms with dealers or manufacturers if such dealers or manufacturers have registered and have paid such tax, but shall keep such records and make such reports regarding such transactions as may be prescribed by regulation under this Act.

Section 17 of the National Firearms Act, 48 Stat. 1240 (U.S.C., Title 26, Sec. 1132p), is as follows:

This Act shall take effect on the thirtieth day after the date of its enactment.

The judgement of the District Court sought to be reviewed was entered on January 3, 1939, and an application for appeal was filed on January 30, 1939, and is presented to the District Court herewith, to wit, on this the 30 day of January, 1939.

The indictment in this case contains but one count which is based upon Section 11 of the National Firearms Act. The indictment charges that the defendants on the 18th day of April, 1938, in the Western District of Arkansas, unlawfully transported in interstate commerce a twelve-gauge Stevens shotgun having a barrel length less than eighteen inches in length, the said defendants not having registered said firearm as required by Section 5 of the National Firearms Act and not having in their possession a stamp-affixed order as required by Section 4 of the National Firearms Act and the regulations issued under authority of law.

The defendants interposed a demurrer to the indictment. The Court based its decision sustaining the demurrer solely upon the ground that Section 11 of the National Firearms Act is invalid as violating the Second Amendment to the Constitution of the United States which provides that "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 question decided by the District Court is a substantial and important one and has not hitherto been settled by a decision of the Supreme Court of the United States. It is contrary to the decision in United States v. Adams, 11 F. Supp. 216 (S.D. Fla.) and it is believed also to be in conflict with the principles enumerated in the decision of the Supreme Court of the United States in Sonzinsky v. United States, 300 U.S. 506. See also Robertson v. Baldwin, 165 U.S. 275, 281-282; Hill v. State, 53 Ga. 472.

 

The following decisions are believed to sustain the jurisdiction of the Supreme Court:

United States v. Doremus, 249 U.S. 86;

United States v. Sprague, 282 U.S. 716;

United States v. Hastings, 296 U.S. 188;

United States v. Curtiss Wright Export Corporation, 299 U.S. 304.

Appended hereto is a copy of the opinion of the Court filed January 3, 1939.

Respectfully submitted,

{signed} Robert H. Jackson

ROBERT H. JACKSON,

Solicitor General

{signed} Clinton R. Barry

CLINTON R. BARRY,

United States Attorney,

Western District of Arkansas.

[The following lines were not completed:]

Indorse: Filed_____________

________________, Clerk

NOTICE OF SERVICE

[No. 3926, filed January 30, 1939, by Wm. S. Wellshear, Clerk.]

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

UNITED STATES OF AMERICA, Appellant,

v.

JACK MILLER and FRANK LAYTON, Appellees

 

TO: JACK MILLER and FRANK LAYTON, Appellees.

Pursuant to Rule 12, paragraph 2, Rules of the Supreme Court of the United States, you are hereby served with copies of the petition for appeal, order allowing appeal, assignments of error, and statement as to jurisdiction in the above entitled cause.

Your attention is directed to the provisions of Rule 12, paragraph 3, copied in the margin. 1

{signed} Clinton R. Barry

Counsel for Appellant.

Service acknowledged this 30th day of Jan, 1939.

{signed} Paul E. Gutensohn

Counsel for Appellees.

Address: Mer. Bk. Bldg., Fort Smith, Ark.

1 Rule 12, paragraph 3: "Within 15 days after such service the appellee may file with the clerk of the court possessed of the record, and serve upon the appellant, a typewritten statement disclosing any matter or ground making against the jurisdiction of this court asserted by the appellant. There may be included in, or filed with, such opposing statement, a motion by appellee to dismiss or affirm. Where such a motion is made, it may be opposed as provided in Rule 7, paragraph 3."

PRAECIPE FOR TRANSCRIPT OF RECORD

[No.3926, filed February 1, 1939, by Wm. S. Wellshear, Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA, Plaintiff

v.

JACK MILLER and FRANK LAYTON, Defendants

 

PRAECIPE FOR TRANSCRIPT OF RECORD

 

To the Clerk, United States District Court, Western District of Arkansas:

The appellant hereby directs that in preparing Transcript of Record in this cause in the United States District Court for the Western District of Arkansas, in connection with its appeal to the Supreme Court of the United States, you include the following:

1. Docket entries and minute entries showing return of indictment, filing of demurrer and entry of order and judgement sustaining demurrer.

2. Indictment.

3. Demurrer.

4. Opinion.

5. Judgement sustaining demurrer.

6. Petition for appeal to the Supreme Court.

7. Statement of jurisdiction of Supreme Court.

8. Assignments of Error.

9. Order allowing appeal.

10. Notice of service on appellee of petition for appeal, order allowing appeal, assignments of error, and statements as to jurisdiction.

11. Citation.

12. Praecipe.

{signed} Clinton R. Barry,

CLINTON R. BARRY

United States Attorney,

Western District of Arkansas

BRIEF FILED BY THE UNITED STATES

BRIEF FILED BY THE UNITED STATES

In the Supreme Court of the United States

October Term, 1938

No. 696

 

The United States of America, Appellant

v.

Jack Miller and Frank Layton

appeal from the district court of the united states for the western district of arkansas

brief for the united states

opinion below

The memorandum opinion of the District Court, filed January 3, 1939, sustaining a demurrer to the indictment, is not reported.

jurisdiction

The judgment of the District Court was entered on January 3, 1939. The appeal was prayed for and allowed on January 30, 1939. The jurisdiction to review the judgement complained of, by direct appeal, is conferred by the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. C., Title 18, Sec. 682), and Section 238 of the Judicial Code as amended (U. S. C., Title 28, Sec. 345). Probable jurisdiction was noted by this Court on March 13, 1939.

question presented

Whether the District Court erred in sustaining the demurrer of the appellees to the indictment on the ground that Section 11 of the National Firearms Act is invalid as contravening the Second Amendment to the Constitution of the United States.

constitutional and statutory provisions involved

The Second Amendment to the Constitution provides:

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.

Section 11 of the National Firearms Act (Act of June 26, 1934, c.757, 48 Stat. 1236, 1239; U. S. C., Title 26, Sec. 1132j), provides:

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.

 

The National Firearms Act, as amended April 10, 1936, has been copied in its entirety in the Appendix, infra, pp. 22-30.

[The Appendix was not included in Court Documents & Opinion. The majority of the Act is found in the footnotes of the Supreme Court Opinion section.]

statement

The appellees were indicted on September 1, 1938, in the United States District Court for the Western District of Arkansas for violating Section 11 of the National Firearms Act. The indictment, which was in one count, charged that on April 18, 1938, the appellees unlawfully transported in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs, Arkansas, a certain firearm, to wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, the appellees not having registered the firearm as required by Section 5 of the National Firearms Act and not having in their possession a stamp-affixed order as required by Section 4 of the National Firearms Act and the regulations issued under authority of such Act.

The appellees filed a demurrer to the indictment which alleged, inter alia, that the National Firearms Act and the provisions thereof with respect to the registration of firearms and the possession of stamp-affixed orders are in violation of the Second Amendment to the Constitution. In a memorandum opinion filed January 3, 1939, the District Judge held Section 11 of the National Firearms Act, the section under which the indictment was laid, invalid, as being in contravention of the Second Amendment. The demurrer was accordingly sustained. The other grounds assigned in the demurrer were not passed upon by the court.

On January 30, 1939, the United States filed a petition for appeal, assignment of errors, and statement of jurisdiction with the District Court, and on the same day the District Court signed the order allowing an appeal. On March 13, 1939, this Court noted probable jurisdiction.

specification of errors to be urged

The District Court erred:

(1) In holding that Section 11 of the National Firearms Act is invalid as violating the Second Amendment to the Constitution.

(2) In sustaining the demurrer to the indictment.

 

summary of argument

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment.

argument

section 11 of the national firearms act does not violate the second amendment

In sustaining the demurrer to the indictment the District Court in its memorandum opinion stated merely that:

The indictment is based upon the Act of June 26, 1934, c.757, Section 11, 48 Statute 1239. 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 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."

Whatever may have been the reasons which actuated the court in reaching this conclusion, we submit that the "right of the people to keep and bear arms," as that term is used in the Second Amendment, is not abridged by the Section.

Preliminarily, it may be pointed out that the National Firearms Act does not apply to all firearms but only to a limited class of firearms. The term "firearm" is defined in Section 1 of the Act (infra, p. 22) to refer only to "a shotgun or rifle having a barrel less than 18 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." 1 But even as to this class of firearms there is not a word in the National Firearms Act which expressly prohibits the obtaining, ownership, possession or transportation thereof by anyone if compliance is had with the provisions relating to registration, the payment of taxes, and the possession of stamp-affixed orders (infra, pp. 24 et seq.). It may be argued {here the word "argued" has been struck through and the word "assumed" hand-written above} that Congress, in inserting these provisions in the National Firearms Act, intended, through the exercise of its taxing power and its power to regulate interstate and foreign commerce, to discourage, except for military and law-enforcement purposes, the traffic in and utilization of the weapons to which the Act refers. But it is also indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and desperado. In the Report of the Committee on Ways and Means of the House of Representatives (H. Rep. No. 1780, 73d Cong., 2d Sess.) it was stated (pp. 1-2):

This bill is the result of the suggestions to Congress for many years that there is a legitimate field and method of regulation of dangerous weapons by the Congress. It has been frequently pointed out that there are limitations on the States, that the Federal Government has powers in the field, and that the evil needs a remedy. The growing frequency of crimes of violence in which people are killed or injured by the use of dangerous weapons needs no comment. The gangster as a law violator must be deprived of his most dangerous weapon, the machine gun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machine guns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting arms. But while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a machine gun or sawed-off shotgun.

* * * * *

In general this bill follows the plan of the Harrison Anti-Narcotic Act and adopts the constitutional principle supporting that act in providing for the taxation of firearms and for procedure under which the tax is to be collected. It also employs the interstate and foreign commerce power to regulate interstate shipment of fire-arms and to prohibit and regulate the shipment of fire-arms into the United States.

It is apparent therefore that Section 11, the section upon which the indictment was based, places restrictions upon the transportation in interstate commerce of only those weapons which are the tools of the criminal. "The right of the people to keep and bear arms" recognized by the Second Amendment does not, we submit, guarantee to the criminal the right to maintain and utilize arms which are particularly adaptable to his purposes.

The Second Amendment does not confer upon the people the right to keep and bear arms; it is one of the provisions of the Constitution which, recognizing the prior existence of a certain right, declares that it shall not be infringed by Congress. Thus the right to keep and bear arms is not a right granted by the Constitution and therefore is not dependant upon that instrument for its source. United States v. Cruikshank, 92 U. S. 542, 543; Presser v. Illinois, 116 U. S. 252, 265; Robertson v. Baldwin, 165 U. S. 275, 281.

Accordingly, in determining the nature and extent of the right referred to in the Second Amendment, we must look to the common law on the subject as it existed at the time of the adoption of the Amendment. State v. Workman, 35 W. Va. 367, 372; State v. Kerner, 181 N. C. 574, 577; cf. Patton v. United States, 281 U. S. 276, 288. While it has been said that the question whether there was a common law right to possess or carry firearms is a disputed one (People v. Horton, 264 N. Y. S. 84, 87, affirmed, 239 App. Div. 610), it cannot be doubted that at least the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England 2 and was a part of our common law derived from that nation. 3

The earliest enactment upon the subject of bearing arms (Statue of Northhampton, 2 Edw. III, c. 3, enacted in 1328) seems to have gone so far as to make it a misdemeanor for anyone, except the king's ministers or servants, to go or ride anywhere armed by day or night. 4 While it would seem doubtful that this statute was construed as broadly as its language warranted, it was recognized that the statute meant at least to punish people who went armed to terrify the king's subjects and that in this respect it constituted an affirmation of the common law. In Sir John Knight's case (1686), 3 Mod. 117, 87 Eng. Rep. 75, the Report states (p. 118):

The Chief Justice said, that the meaning of the statute of 2 Edw. 3, c. 3, was to punish people who go armed to terrify the king's subjects. It is likewise a great offense at the common law, as if the king were not able or willing to protect his subjects; and therefore this act is but an affirmance of that law; and it having appointed a penalty, this Court can inflict no other punishment than what is therein directed.

And in Bishop on Statutory Crimes (3d Ed.), sec. 784, it was said (p. 531):

Whatever we may deem of this statute, the leading offense punishable by it, namely, riding or going about armed with dangerous or unusual weapons to the terror of the people, was always indictable under the common law of England, and it has become a part of the common law of our states.5

In further derogation of any supposed right to possess weapons conferred by the English common law, a statute was enacted in 1670 (22 Charles II, c. 25, sec. 3) which provided that no person not having lands of a yearly value of 100 pounds, other than the son and heir of an esquire or person of higher degree, should be allowed to have or use guns, bows, etc.

Thus it would seem that the early English law did not guarantee an unrestricted right to bear arms. Such recognition as existed of a right in the people to keep and bear arms appears to have resulted from oppression by rulers who disarmed their political opponents and who organized large standing armies which were obnoxious and burdensome to the people. (Cooley's Constitutional Limitations (8th ed.) vol. 1, p. 729; 28 Harvard Law Review 473.) This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense. Thus, in Aymette v. State, 2 Humphr. (Tenn.) 154, the court, in reviewing the history and origin of the right in England to bear arms, particularly as assured by the Bill of Rights of 1688, 1 Wm. & Mary, c. 2, said (pp. 156-157):

By the act 22 and 23, Car. 2d, ch. 25, sec. 3, it is provided that no person who has not lands of the yearly value of 100, other than the son and heir apparent of an esquire, or other person of higher degree, &c., shall be allowed to keep a gun, &c. By this act, persons of a certain condition in life were allowed to keep arms, while a large proportion of the people were entirely disarmed. But King James the 2d, by his own arbitrary power, and contrary to law, disarmed the Protestant population and quartered his Catholic soldiers among the people. This, together with other abuses, produced the revolution by which he was compelled to abdicate the throne of England. William and Mary succeeded him, and in the first year of their reign, Parliament passed an act recapitulating the abuses which existed during the former reign, and declared the existence of certain rights which they insisted upon as their undoubted privileges. Among these abuses they say, in sec. 5, that he had kept a "standing army within the kingdom in time of peace without consent of Parliament, and quartered soldiers contrary to law." Sec. 6. "By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law."

In the declaration of rights that follows, sec. 7 declares that "the subjects which are Protestants may have arms for their defence, suitable to their condition and as allowed by law." This declaration, although it asserts the right of the Protestants to have arms, does not extend the privilege beyond the terms provided in the act of Charles 2d, before referred to. "They may have arms," says the Parliament, "suitable to their condition and as allowed by law." The law, we have seen, only allowed persons of a certain rank to have arms, and consequently this declaration of right had reference to such only. It was in reference to these facts, and to this state of the English law, that the second section of the amendment to the Constitution of the United States was incorporated into that instrument. It declares that "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 evil that was produced by disarming the people in the time of James the second was that the King, by means of a standing army, quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel, and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the King to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands. No private defence was contemplated or would have availed anything. If the subjects had been armed, they could have resisted the payment of excessive fines, or the infliction of illegal and cruel punishments. When, therefore, Parliament says, that "subjects which are Protestants may have arms for their defence, suitable to their condition as allowed by law," it does not mean for private defence, but being armed, they may as a body, rise up to defend their just rights, and compelled their rulers to respect the laws. This declaration of right is made in reference to the fact before complained of, that the people had been disarmed, and soldiers had been quartered among them contrary to law. The complaint was against the government. The grievances to which they were thus forced to submit were for the most part of a public character, and could have been redressed only by the people rising up for their common defence to vindicate their rights.

In this country, as in England, it has been almost universally recognized that the right to keep and bear arms, guaranteed in both the Federal and State Constitutions, had its origin in the attachment of the people to the utilization as a protective force of a well-regulated militia as contrasted with a standing army, which might possibly be used to oppress them. (People v. Brown, 253 Mich. 537, 539; Cooley's Constitutional Limitations (8th ed.), vol. 1, p. 729; Story on the Constitution (2d ed.), vol 2, secs. 1897 - 1898; 28 Harvard Law Review 473; see also the Third Amendment to the Constitution.) Indeed, the very declaration in the Second Amendment that "a well-regulated militia, being necessary to the security of a free State," indicates that the right secured by that Amendment to the people to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state. In Salina v. Blaksley, 72 Kan. 230, the court, in reference to the provision of the State Constitution declaring that the people had the right to bear arms for their defense and security, said (pp. 232-233):

That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution, which says : "A well-regulate militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Here also the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law.

And in State v. Buzzard, 4 Ark. 18, the court, in referring to the Second Amendment, said (pp. 24-25):

If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown; consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood , that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in times of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, which produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not to designed to operate as an immunity to those, who should so keep and bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.

While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear arms collectively (People v. Brown, 53 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State, supra, it was said (p. 158):

 

As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.

 

In State v. Workman, 35 W. Va. 367, 373, supra, it was likewise said:

* * * in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets -- arms to be used in defending the State and civil liberty--and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperados, to the terror of the community and the injury of the State. Bish. Crim. St. 792.

See also State v. Blaksley, 72 Kan. 230; People v. Persce, 204 N.Y. 397; People v. Warden, 139 N.Y.S 277; People v. Ferguson, 129 Cal. App. 300; Ex parte Thomas, 1 Okla. Cr. R. 210; Andrews v. State, 3 Heisk. (Tenn.) 165; Fife v. State, 31 Ark. 455; State v. Duke, 42 Tex. 455; People v. Brown, 253 Mich. 537; State v. Hogan, 63 Ohio St. 202; Pierce v. State, 42 Okla. Cr. R. 272; Mathews v. State, 33 Okla. Cr. R. 347; English v. State, 35 Tex. 473; State v. Kerner, 181 N.C. 547; Glenn v. State, 10 Ga. App. 128; Hill v. State, 53 Ga. 472. 6

In recognition of this principle, this Court, in Robertson v. Baldwin, 165 U.S. 275, 281-282, stated that the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.

That the foregoing cases conclusively establish that the Second Amendment has relation only to the right of the people to keep and bear arms only for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private citizens. On the contrary they frequently constitute the arsenal of the "public enemy" and the "gangster" and are not weapons of the character which, as was said in People v. Brown, 253 Mich. 537, 542, are recognized by the common opinion of good citizens as proper for defence.

In the only other case in which the provisions of the National Firearm Act have been assailed as being in violation of the Second Amendment (United States v. Adams, 11 F. Supp. 216 (S.D. Fla.)), the contention was summarily rejected as follows (pp. 218-219):

 

The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.

* * *

For the reasons stated, we respectfully submit that Section 11 of the National Firearms Act does not infringe "the right of the people to keep and bear arms" secured by the Second Amendment, and therefor that the judgement of the District Court should be reversed and the caused remanded for further proceedings.

ROBERT H. JACKSON,

Solicitor General.

BRIEN McMAHON,

Assistant Attorney General.

WILLIAM W. BARRON,

Special Assistant to the Attorney General.

FRED E. STRINE,

GEORGE F. KNEIP,

W.MARVIN SMITH,

Attorneys.

march, 1939

1 As amended by the Act of April 10, 1936, c. 169, 40 Stat. 1192 (infra, p. 22), the term firearm does not include a rifle which is within the foregoing provisions solely by reason of the length of its barrel if the calibre of such rifle is .22 or smaller and if its barrel is 16 inches or more in length.

2 Hawkins Pleas of the Crown (6th Ed.), Vol. 1, p. 266; Wharton on Criminal Law (11th Ed.), Vol. 3, sec. 1869; Russell on Crimes (6th Ed.), Vol. 1, pp. 588-589; Hocheimer's Criminal Law (2d Ed.), sec. 281; Blackstone Comm., Vol. 4, p. 149.

3 Bishop's Statutory Crimes (3d Ed.), sec. 784; McClain on Criminal Law, Vol. 2, sec. 1029. See also State v. Huntley, 25 N. C. 418; State v. Roten, 86 N. C. 701.

4 This statute (1 Statutes at Large of England, p. 422), so far as pertinent, provides:

"Item it is enacted, That no Man great nor small, of what Condition soever he be, except the King's Servants in his Presence, and his Ministers in executing of the King's Precepts, or of their Office, and such as be in their Company assisting them, and also upon a Cry made for Arms to keep the Peace, and the same in such Places where such Acts happen, be so hardy to come before the King's Justices, or other of the King's Ministers doing their Office with Force and Arms, (2) nor bring no Force in affray of the Peace, (3) nor to go nor ride armed by Night nor by Day, in Fairs, Markets, nor in the Presence of the Justices or other Ministers, nor in no Part elsewhere, upon Pain to forfeit their Armour to the King, and their Bodies to Prison at the King's Pleasure.

 

5 See also Rex v. Meade, 19 T. L. R. 540 (1903), where the court said that the firing of a revolver in a public place, with the result that the people were terrorized, was an offense not only under the Statute of Northampton, but also under the common law.

6 It has even been said in Walter v. State, 3 Ohio N.P.N.S. 13, that it is doubtful whether a shotgun is within the meaning of the term "arms" as used in the Constitution of Ohio.

OPINION OF THE SUPREME COURT

OPINION OF THE SUPREME COURT

[Before the Supreme Court, 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. Argued March 30, 1939 and decided May 15, 1939. No appearance for appellees.]

SUPREME COURT OF THE UNITED STATES

No. 696 - October Term, 1938

The United States of America, Appellant

vs.

Jack Miller and Frank Layton.

Appeal From the District Court of the United States for the Western District of Arkansas

May 15, 1939

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 (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 for 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 Narcotic Act 2 --United States v. Jim 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 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 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 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."

"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 defence." "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 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 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 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 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

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.

mr. justice douglas took no part in the consideration or decision of this cause.

1 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) There 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 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, hereinafter 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 Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this Act: Provided, That, if the applicant is an individual, such identification include fingerprints 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 regulations 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 the approval of the Secretary, shall prescribe such rules and regulations 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 application 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 effected thereby.

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

 

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

3 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. State, 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: Encyclopaedia of the Social Sciences, Vol. X, p. 471, 474.

MANDATE

 

[This document filed June 14, 1939, by Wm. S. Wellshear,

Clerk.]

File No. 3926, Supreme Court of the United States

No. 696, October Term, 1938

The United States of America

vs.

Jack Miller and Frank Layton

MANDATE

United States of America, ss:

The President of the United States of America,

To the Honorable the Judges of the District Court of the United States for the Western District of Arkansas,

Greeting:

Whereas, lately in the District Court of the United States for the Western District of Arkansas, before you, or some of you, in a cause between The United States of America, Plaintiff, and Jack Miller and Frank Layton, Defendants, No. 3926, wherein the judgement of the said District Court, entered in said cause on the 3rd day of January, A. D. 1939, is in the following words, viz:

"This January 3, 1939, comes the United States of America by Clinton R. Barry, Attorney for the Western District of Arkansas, and come defendants, Jack Miller and Frank Layton, in their own proper persons, and by Paul E. Gutensohn, their attorney, and comes on to be heard the demurrer of said defendants to the indictment in the above entitled cause.

The demurrer is argued by counsel and submitted, and upon consideration thereof it is by the court considered, ordered and adjudged that the demurrer be and is hereby sustained and that the indictment herein be and is hereby quashed.

To which ruling, order and judgement the plaintiff, United States, excepts."

as by the inspection of the transcript of the record of the said District Court, which was brought into the SUPREME COURT OF THE UNITED STATES by virtue of an appeal, agreeably to the act of Congress, in such case made and provided, fully and at large appears.

And whereas, in the present term if October, in the year of our Lord one thousand nine hundred and thirty-eight, the said cause came on to be heard before the said SUPREME COURT, on the said transcript of record, and was argued by counsel:

On consideration whereof, It is now here ordered and adjudged by this Court that the judgement of the said District Court, in this cause be, and the same is hereby, reversed.

 

AND IT IS FURTHER ORDERED that this cause be, and the same is hereby, remanded to the said District Court for further proceedings in conformity with the opinion of this court.

May 15, 1939

You, therefore, are hereby commanded that such further proceedings be had in such cause, in conformity with the opinion and judgement of this Court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.

Witness, the Honorable CHARLES E. HUGHES, Chief Justice of the United States, the twelfth day of June, in the year of our Lord one thousand nine hundred and thirty-nine.

{signed} Charles Edward ? Crosby ?, Clerk of the Supreme Court of the United States.

PROBATION DOCUMENT

[The following document was filed January 29, 1944, by T.E. Darnell, Deputy Clerk, for Truss Russell, Clerk.]

PROBATION SYSTEM, U.S. COURTS

IN AND FOR THE

DISTRICT COURT of the UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

Probation File #1034

THE UNITED STATES vs FRANK LAYTON

Division Fort Smith

Docket No. C- 3917

1. COMES NOW Jesse A. Bell, U. S. PROBATION OFFICER OF THE COURT presenting an official report upon the conduct and attitude of probationer Frank Layton.

2. PRAYING THAT THE COURT WILL modify the order heretofore made in this case and set aside the probation of the said Frank Layton.

3. RESPECTFULLY RELATING THAT THE PROBATIONER Frank Layton was placed on probation by the Honorable Heartsill Ragon sitting in the court at Fort Smith, on the 8th day of January, 1940 who fixed the period of probation supervision at Five Years, and imposed the general terms and conditions of probation theretofore adopted by the court and also imposed special conditions and terms as follows:

None.

4. RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT FOR CAUSE AS FOLLOWS:

That the case of the said Frank Layton was transferred to the supervision of Mr. J. R. Small, Chief Probation Officer for the Northern District of Oklahoma, at Tulsa, on January 8, 1940. A report from the said Probation Officer reflects that the said Frank Layton has complied with all the conditions of his probation and has made a good adjustment. Your petitioner respectfully represents that he is entitled to be discharged from further supervision.

 

Respectfully,

{signed} Jesse A. Bell

U.S. Probation Officer

Place Fort Smith, Arkansas

Date January 29, 1944

 

ORDER OF THE COURT

Considered and ordered this 29 day of January 1944 and ordered filed and made a part of the records in the above case.

{signed} Jms. (?) E. Miller

U. S. District Judge

JUSTICE JAMES CLARK McREYNOLDS

Supreme Court Justice James Clark McReynolds was born in Elkton, Kentucky, on February 3, 1862, where he grew up with a respect for individualism, the doctrine of "states' rights," and the aristocracy associated with the ante-bellum South. His father was noted for his air of infallibility and his lack of concern for social responsibilities. His mother reared young James according to a strict moral code, and no doubt was of some substance herself: on a train journey, she took away a pistol from a man who was terrorizing women and children.

McReynolds studied science at Vanderbilt University in Nashville, where he graduated as valedictorian in 1882. Soon after, he attended the law school at the University of Virginia, where his favorite professor was John B. Minor. Minor, a strict moralist, viewed the Constitution as a document of limitations and saw law as a constant, coercive force in society rather than a dynamic, advisory one.

Graduating after fourteen months of study at Virginia, McReynolds spent most of the next twenty years in Nashville, where he was regarded as a capable, well-prepared, but unimpressive attorney. He taught commercial law for a while at Vanderbilt, and joined in reform campaigns to clean Nashville of gambling and prostitution, successfully having Police Gazette banned from the newsstands in the process. The future justice ran for Congress as a "Gold Democrat" in 1896, in reaction to his outrage with the economic and class ideas of presidential candidate William Jennings Bryan. His aristocratic manner and personal reservedness was not appealing to the voters, however, and his bid to unseat the incumbent failed.

In 1903, with the help of a prominent friend, McReynolds was named to the post of United States Assistant Attorney General, and by 1908 had established a reputation as a trustbuster for his efforts in enforcing the Sherman Anti-Trust Act. He fought the tobacco and anthracite coal trusts, resigning in 1912 when the Attorney General compromised the final settlement in the tobacco case.

President Wilson appointed McReynolds to the post of U. S. Attorney General in 1913, where his intolerance quickly earned him political enemies. After several controversies, a way was sought to get McReynolds out of the Cabinet. Circumstances allowed Wilson to place him on the Supreme Court in 1914.

McReynolds spent twenty-seven years on the Court, preparing only 503 opinions for the majority over that period. Most of those dealt with legal technicalities, such as interpretation of statutes or determination of federal court jurisdiction. Even in mundane areas of jurisprudence such as Indian tribal agreements, questions of admiralty, and copyright validity, he was able to incorporate sarcasm and personal attacks in his opinions.

During his tenure, McReynolds established a trend reflecting his philosophical views. In economics, he opposed "bigness" in government and labor more than business, even with his reputation as a trustbuster. He was staunch in his defense of the ordinary businessman. His civil opinions, of which United States v. Miller must be considered one, could be inconsistent. As the lone dissenter in Carroll v. United States (1925), McReynolds condemned unreasonable search and seizure. He was the only dissenter in another case where he argued that the President had no right to dismiss a postmaster or other similarly held positions without consent of Congress. He struck down a Hawaiian statute that sought to discourage the teaching of Japanese, and wrote the unanimous decision that invalidated an Oregon law compulsory education law, under the concept that it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control . . ."

Concurrently, McReynolds dissented in decisions favoring socialists and communists, and was consistently in the minority regarding cases advancing the civil rights of blacks. He was venomous in his opposition to decisions forwarding the New Deal agenda of Franklin Roosevelt, who he considered "utterly incompetent."

McReynolds' passionate dissent in cases that tested the constitutionality of America's departure from the gold standard has to be perplexing to firearm rights advocates when comparing the Miller opinion. By confiscating private property and abrogating contracts, he argued, the government deprived the people of due process and failed to satisfy the "just compensation" clause of the Fifth Amendment. "No such power was ever granted by the framers of the Constitution," McReynolds said. "It was not there then. It was not there yesterday. It is not there today."

In a 1937 dissent, he again voiced a constructionist viewpoint, finding certain provisions of the Social Security law in violation of the Tenth Amendment: "We should keep in mind that we are living under a written Constitution. No volume of words and no citation of irrelevant statistics and no appeal to feeling of humanity can expand the powers granted by Congress . . ."

McReynolds retired in 1941, remaining in Washington, D.C. He died August 24, 1946, of complications from bronchial pneumonia.

DEFINITIONS

Assignments

of Error: A written statement of the plaintiff case that lists the errors or actions made by the court of which the plaintiff is complaining.

Appellant: The party who takes an appeal from one court of jurisdiction to another.

Demurrer: In pleading, the formal way of saying that the other side's position does not have enough legal consequence to require the demurring party to answer them.

Ex Parte: On one side only. Something done for one party only.

Et seq. : Abbreviation for et sequentes, "and the following."

Indictment: A written accusation found and presented by a grand jury, that charges the named person or persons with an act that constitutes a punishable

public offense.

Infra: Below.

Inter alia: Among other things. A term used in pleading, especially in reciting statutes, where the entire statute is not given in entirety.

Mandate: An order issued by a superior court upon the decision of an appeal, directing disposition of the case or the action to be taken by the inferior court.

Opinion: The statement by a judge or court of the decision

reached regarding the cause argued before them, explaining the law as applied to the case and detailing the reasons upon which the judgement is

based.

Praecipe: A written order that commands a defendant to do the thing ordered, or show reason why it cannot be done.

Precept: An order to an officer of the law to do so some act within the scope of his powers, such as to bring a person in.

Stare

decisis: The policy of standing by precedents and not disturbing "settled" points.

Supra: Above.

True Bill: The indorsement made by a grand jury upon an indictment when they find it supportable by the evidence given them and are satisfied of the truth in the accusation.

U.S.C.: United States Code

U.S.C.A.: United States Code Annotated

VIEWPOINT REGARDING UNITED STATES vs MILLER

by Patrick L. Aultice

 

 

* * *

"Our Revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press."

-- Thomas Jefferson

pp.46 - 47, "The Living Thoughts of Thomas Jefferson, Presented by John Dewey", Fawcett Publications, Inc., Greenwich, Conn. Emphasis added.

* * *

 

 

For those of us who advocate the Second Amendment as an individual right rather than a collective guarantee, there are several considerations regarding the Miller decision. First is the fact that it was not an important decision in itself. It determined that the Second Amendment does not allow law-abiding citizens to legally own sawed-off shotguns with a barrel less than 18 inches long. That is all. It is ironic that anti-gun factions are now beginning to avoid reference to United States v. Miller, their long-time "evidence" for banning "Saturday Night Specials", since by default it is acceptable to own weapons with a "reasonable relationship" to the preservation of the militia, and nothing so fits the description as those creatures of their own distorted imagination, the so-called "assault weapons"!

The Miller decision was not even considered important when rendered. The headline of the small New York Times article concerning the case, buried on page 15 of the Tuesday, May 16, 1939, edition read:

"Supreme Court Bars Sawed-Off Shotgun; Denies Constitution Gives Right to Carry This Weapon."

The decision did not solve any problems; criminals use sawed-off shotguns as readily today as they did fifty years ago. It alluded to, but did not define, the Second Amendment: does "well regulated" mean well governed or well trained? Who constitutes "the militia"? How does "the right of the people" in the Second Amendment differ from the "right of the people" in the First, Fourth, or any other? And if does differ, why? McReynolds' approach reflects the elitist disdain the modern federal judiciary has shown for the Second Amendment, which they consider "obsolete" or "dead" - - ignore it to the degree possible, gloss over any inconsistencies when necessary, then dismiss it with a wave of the hand. They wish it would go away. The questions posed by the Second Amendment, are, like firearms, abhorrent and of interest only to dullards, the lower classes, and criminals. We can only wonder what McReynolds would have written if a sawed-off shotgun had been used by an irate small businessman, protecting his meager gold stash from seizure by New Deal agents.

The true importance of the case lies in its basis for reference by the Supreme Court when the Second Amendment is finally argued directly of and for itself. Using the judicial protocol of stare decisis, the policy of standing by precedents and not disturbing "settled" points, the justices may utilize Miller, ambiguous as it is on the subject, as "proof" that the Second Amendment is a collective guarantee rather than an individual right. The idea, it might be argued, is that "consistency" of law, formed by basing current decisions on the foundations of prior decisions - - even questionable ones - - is more important than truth.

Another consideration regarding the case is that the appellees, Miller and Layton, were not even represented. Miller, in fact, had been murdered before the case was argued. The assault the government made against an individual's right to bear arms went without rebuttal, beyond Gutensohn's poorly written demurrer to the indictment. This will not be the circumstance in the inevitable future decision.

Even with the Second Amendment defenseless against attack, McReynolds, as noted, refused to bring forth a blanket decision covering all firearms. Nor did he actively dispute the people's right to bear arms as individuals, perhaps realizing he would be on uncertain ground after reading militia laws which dictated that the members, the "body of the people", supply their own arms. The result was a weak swat at the "gangster" element of the time:

"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."

This conclusion is debatable, as thirty thousand short-barrel shotguns were purchased by the U.S. government for the armed forces in World War I. 1 His inference about "the common defense" is also faulty, as shall be shown.

The historical sources used for the decision are of interest, but even more important are the sources not consulted. For example, McReynolds refers us to a chapter on the role of the militia in Adam Smith's Wealth of Nations, which was not even published until 1776 and can hardly be considered a reference manual for the Founding Fathers. The opinion and the appellant's self-contradictory brief continually point us to English common law, and prior decisions based on English common law, and even colonial militia laws that plainly direct that the people must provide their own arms. But no one bothered to consider the words of the very men who demanded the Bill of Rights of which the Second Amendment is a part! This is nothing short of incredible. Jefferson, Madison, Mason, and a host of other Founding Fathers were obvious in their feelings on the subject.

Noting the militia clauses of the Constitution, McReynolds writes the following in his opinion:

"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."

With "obvious purpose"? The Second Amendment specifies the guarantee of an individual right, and a brief review of the evolution of the Second Amendment in America establishes this. The duty of militia service is a natural result of that right, particularly in a republic fearful of standing armies, but it is inane to say the duty supersedes the right on which it is predicated.

As it applies to the Bill of Rights, the thought that later led to the Second Amendment was first found as article 13 of the Virginia Declaration of Rights, written by George Mason in 1776. As noted in The Roots of the Bill of Rights,

"Of the 16 articles in the Virginia Declaration, nine state fundamental general principals of a free republic (of these perhaps the most consequential was the statement in Article 5 of the separation of powers as a rule of positive law--apparently the first such statement in an organic instrument). The remaining seven articles safeguard specific individual rights." 2

 

As a proof that the right is individual, not collective, consider the evolution of article 13. When approved on June 29, 1776, it read:

13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordinance to, and governed by, the civil power.

Pennsylvania statesmen, using the Virginia Declaration as a guide, passed The Pennsylvania Declaration of Rights on September 28, 1776. Their Article XIII was even more specific regarding the individual's right to bear arms:

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

In the intervening years between 1776 and 1787, independence was won and a proposed national constitution drafted. Upon presentation to the states for ratification, debate arose between the factions favoring the Constitution as presented (the Federalists) and those who either opposed ratification or who demanded a Bill of Rights as a guarantee of their individual liberties (the Antifederalists). In Pennsylvania, the Federalist majority was able to ratify the Constitution, but not without considerable dissent from the Antifederalists. To bring forth their argument to the public, the dissenters published their reasons for disagreement.

From "The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, 1787," we find the following:

" . . . Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the plan, which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention . . ."

Of their propositions, the seventh clearly addressed the right to keep and bear arms as an individual right.

7. That the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.

The importance of the amendments proposed by the Pennsylvania Convention minority is that they were used as a model for other states, including Virginia, which desired ratification, yet also wanted a Bill of Rights. Virginia, with its wealth, population, and position of leadership in the Revolutionary period, stood as the pivotal state if the Constitution was to be adopted. Virginia's proposed federal Bill of Rights is momentous in that it represented the first specification of the document. Congress listened; every guarantee proposed by Virginia, except one, later found a place in the federal Bill of Rights. From the Virginia ratification document of June 27, 1788 comes the following affirmation that the right to bear arms should be an individual right:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

Note that article 17 is essentially the same as article 13 from the Virginia Declaration of Rights, except for one important distinction: the phrase "That the people have a right to keep and bear arms" now leads the section! As with the Pennsylvania minority report, the Virginia proposal is distinct in specifying this individual right, though more succinctly than the Pennsylvania model. The Virginia statesmen were thrifty with words, but it is absurd to think they added the clause for any reason other than to express exactly what it says. Otherwise, article 13 would have served the purpose unchanged.

It is also notable that George Mason, who penned article 13, participated in the deliberations that produced article 17. One would think he would have objected forcefully if the boundaries of his intent had been violated. Far from it. It was during this convention Mr. Mason said

"Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussian, & c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers."3

Other states also amplified a more thorough meaning of their militia clauses upon ratification debate. New Hampshire, in their Bill of Rights dated 1783, noted in section XXIV that:

"A well regulated militia is the proper, natural, and sure defense of a state."

In their proposed amendments to the Constitution in 1788 they suggested:

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

In New York, the Constitution of 1777 read:

XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.

At the 1788 New York Ratification Convention, Alexander Hamilton, the acknowledged leader of the Federalist movement, offered the following amendment to soothe the Antifederalists of his home state:

VII. That each state shall have to provide for organising arming and disciplining its militia, when no provision for that purpose shall have been made by Congress and until such provision shall have been made; and that the militia shall never be subjected to martial law but in time of war rebellion or insurrection.

The convention accepted some of his recommendations, but the New York proposed amendments on the subject began with:

"That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;"

North Carolina, which refused to ratify any Constitution until a Bill of Rights was adopted, proclaimed in their Declaration of Rights a repetition of Virginia's article 17.

When presented to Congress in 1789, James Madison's original resolution, a compilation of the suggestions from the state conventions, read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person. 4

Upon arrival in the Senate, it had been altered to read:

ARTICLE THE FIFTH

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

On September 4, 1791, the Senate disagreed by a vote of 9 - 6 to a motion to add the following:

that standing armies, in time of peace, being dangerous to Liberty, should be avoided as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to, and governed by the civil Power. That no standing army or regular troops shall be raised in time of peace, without the consent of two thirds of the Members present in both Houses, and that no soldier shall be inlisted for any longer of term than the continuance of the war.

On the same day, the Senate agreed to amend Article 5 to read:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.

On September 9, it was changed again to:

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.

Also on September 9, the Senate refused to insert "for the common defence" after "to keep and bear arms," and the article was renumbered to its familiar number 2.

So much for Justice McReynolds' "common defense" excuse. The defeat of this motion distinctly places any "collective" interpretation into the realm of smoke and mirrors where it so rightfully belongs.

* * *

"As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several state conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the general convention, which proposed, but in the state conventions, which accepted and ratified the Constitution."

- - James Madison

As quoted by Prof. George Steven Swan, School of Law, St. Thomas University, in a letter to the Wall Street Journal, October 13, 1987.

* * *

The Second Amendment is an individual right that entails to each of us the responsibility of defense of our own life and liberty, and, if need be, with other citizens for the defense of our state and country. The Founding Fathers considered the right to be inalienable; that is, it cannot be transferred to another person, thing, or organization, and it cannot rightfully be denied. As such, we become individually accountable for our survival as free beings. We have failed ourselves as a nation by not staying true to the duty that we all be "trained to arms". Mandatory, yet simple, training of all citizens in the use of firearms, the role of firearms in a free republic, and the penalties for their abuse, would help alleviate our annual slaughter and is in keeping with the spirit of duty brought forth in the Second Amendment. The trade-off would be to end the foolishness of firearms registration, gun bans, and waiting periods - - the first two reduce an inalienable right to a matter of chattel and the latter assumes us guilty until proven innocent. Instead, our lawmakers and others in powerful positions prefer the tyrannical and unimaginative (but easier) path of denying us our rights and freedoms. Jeffersonian precepts on this matter frighten them.

Before the decade is out, the Supreme Court will be forced to deal with this issue and bring forth a far-reaching decision concerning what the Second Amendment really means. Let us hope they consider the spirit and words of the gentlemen who brought it into being.

* * *

"We have not so far perfected our constitutions as to venture to make them unchangeable . . . But can they be made unchangeable? . . . I think not. . . . Nothing then is unchangeable but the inherent and unalienable rights of man."

-- Thomas Jefferson

* * *

 

1 William F. Buckley, Jr., "'Why' of Gun Deaths Needs Explanation," Nashville The Tennessean, July 20, 1989, p. 13A. [A signed article]

2 Bernard Schwartz, The Roots of the Bill of Rights. (New York, 1981), p. 235.

3 Jonathan Elliot, Debates on the Adoption of the Federal Constitution. (New York, 1888), p. 425.

4 Michael K. McCabe, "Madison and the Bill of Rights," American Rifleman, CXXXIX (February, 1991), 21.

BIBLIOGRAPHY

Bickford and Veit, editors. Documentary History of the First Federal Congress 1789-1791, Vol IV. Baltimore: The John Hopkins University Press.

Buckley, William F., Jr. " 'Why' of Gun Deaths Needs Explanation," Nashville The Tennessean, July 20, 1989, p. 13A.

Burner, David. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. New York: Chelesa House Publishers, 1969.

Elliot, Jonathan. Debates on the Adoption of the Federal Constitution. New York. Burt Franklin, 1888.

McCabe, Michael K. "Madison and the Bill of Rights," American Rifleman, CXXXIX (February, 1991), 20-21.

Schwartz, Bernard. The Roots of the Bill of Rights. 5 volumes. New York: Chelesa House Publishers, 1981.