Legal History
(800 Words)

In May 1939, the Supreme Court issued their opinion in United States v. Miller et al.

The Western District Court of Arkansas had heard the case earlier. The defendant (bad guy, 2A side) was a no-good, evil, bad man. He was a criminal doing criminal things.

The cops had been unable to catch Mr. Miller doing criminal things but knew he liked to travel. They waited until he crossed state lines so that a new federal law could be used.

The National Firearms Act was new and untested.

When they stopped Mr. Miller, they found that he was in possession of a short barreled shotgun and did not have a tax stamp for the shotgun.

At trial, Mr. Miller’s lawyer argued that The National Firearms Act was not a revenue measure, but an attempt to usurp police power reserved to the State. And oh, by the way, it offends the inhibition of the Second Amendment of the Constitution.United States V. Miller, 307 U.S. 174 (1939)

The District court found that the NFA violated the Second Amendment. It sustained the demurrerid. which is to say the district court nullified the NFA.

The Miller Court cited past Supreme Court opinions to say, “This usurping of the state’s police powers doesn’t fly.”

They then went on to evaluate the Second Amendment challenge.

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 big takeaway is “judicial notice” and “absence of any evidence”. Courts have evidence presented to them, the jury then decides on facts from that evidence. If it is a bench trial, the judge determines the facts from the evidence presented.

The other way is for the Court to know something that is “common knowledge”. Nobody has to present evidence that water is wet or that fire burns. Nobody has to present evidence that a firearm is an arm.

Those are “facts” that are commonly known, or which are documented in judicial references.

The remark about “firearms being arms” is documented in Heller

The phrase “reasonable relationship to the preservation or efficiency of a well regulated militia” is the phrase that allowed so many rogue inferior courts to find that individuals did not have standing to make Second Amendment Challenges. Fortunately, that corrupt interpretation of the Second Amendment was corrected in Heller.

Since the Miller Court had no facts that said that short barreled shotguns were useful to the militia/military, they found that they were not within the scope of the Second Amendment.

In other words, the Miller court said that military and military style weapons were protected by the Second Amendment.

The court went on to differentiate the “Militia” from “Troops.” Troops were controlled by the Federal Government in the Armed Forces. Militia was under the control of the state.

The court went on to say that These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common The key here being “physical capable”. There was no requirement to be in an actual functional militia.

The court held that the right to keep and bear arms was an individual right because the individual was expected to bring their personal weapons to muster.

The Miller Court found that weapons that are exclusively or predominantly useful in military serviceRobert Bevis V. City of Naperville, No. 23-1353, slip op. at 1182 (7th Cir. Nov. 3, 2023) were protected under the Second Amendment. Those that were not useful in military service could be infringed.

The Heller Court was in balance. How the case would be decided was in question. We didn’t know if it would be the death of private firearm ownership or if it would affirm our protected rights.

It is my opinion that the originalists on the court had to negotiate to win over some agenda-driven justices.

For the most part, cases are staying away from the NFA. It could be the third rail that gets a case moved from a win to a case law in favor of gun control. Some current cases are sneaking in little jabs at the NFA. And we see many challenges of the GCA.

Because of this balancing act, Heller explicitly left the NFA untouched. They left the GCA untouched. Those were battles for later.

Those battles are happening now.

Heller affirmed Miller. McDonald affirmed Heller. Bruen affirmed Heller.

These are the stepping stones to our victory.


National Firearms Act, 48 1236 (U.S. 1934)
, Federal Firearms Act 15 U.S.C. 1250–52 (U.S.)
United States V. Miller, 307 U.S. 174 (1939)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Robert Bevis V. City of Naperville, No. 23-1353 (7th Cir. Nov. 3, 2023)
Wikipedia: Federal Firearms Act of 1938 (Apr. 2023)
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By awa

5 thoughts on “The holdings of Miller – Updated”
  1. Miller was totally a cluster, as far as short barrelled shotguns were concerned.

    There was NO evidence presented that short barreled shotguns were militarily useful arms because the defendant never showed up.

    ANY attorney worth their salt could have had shown piles of photos from WWI showing doughboys using SBS in TRENCH warfare, as they were IDEAL for close quarters use.

    (BTW, I believe WE only started using SBS -AFTER- the Krauts started using them, and I think the Krauts decided it wasn’t worth it after we returned the favor…)

    Our neighbors to the north will SELL YOU A FACTORY MANUFACTURED* SBS if you go through the paperwork to get one. They are actually WAY easier, (legal difficulty-wise,) to get than a handgun in Canada. Mostly used for camping guns for defense against bears and such.

    I’d have to check and see if the Canadian laws have changed in the last few years, but I think the SBS rules are still in place.

    (*It is illegal to manufacture one for yourself by purchasing a shotgun and chopping off the barrel. It has to be from a manufacturer.)

  2. Looks like they want their cake and to eat is as well.
    “In other words, the Miller court said that military and military style weapons were protected by the Second Amendment.”
    Now if it’s “military style” it can be banned because of that fact?

  3. Using the law and courts as a path to victory only works if the opposition respects the law and the courts.
    They don’t. The left will only use laws and listen to the courts when it serves their agenda. If it doesn’t they simply ignore it. We are seeing that exact strategy being used RIGHT NOW with politicians, DAs and judges writing, enforcing and upholding laws that directly violate the Second Amendment AND which ignore both the Heller and Bruen rulings. When you only have one rule….WIN, by any means required, you only have one thing to worry about. And that is if your intended victims decide to wake up and go kinetic on your ass. If they don’t….YOU WIN.

  4. After heller the writing was quite clear when combined with miller. Militia is any able bodied male. Military weapons cannot be banned or restricted. Entire classes of weapons cannot be banned. That should have been enough to dismantle nfa and gca, but of course we got to wait. Nfa I could see sneaking by as it is a tax and that aspect would require a seperste challenge.

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