B.L.U.F. — Examining the 1939 case of United States v. Miller 307 U.S. 174 where we first lost our Second Amendment Rights. Touching on how Heller, McDonald, and Bruen all reference back to Miller but how it got twisted to allow the courts to allow infringements to continue


On April 18, 1938, the Arkansas and Oklahoma state police stopped Miller and Layton outside of Siloam Springs, Arkansas, en route from Claremore. They had an unregistered, short-barreled shotgun in the car and apparently were “making preparation for armed robbery.” So the police arrested them.

Miller and Layton ended up in Fort Smith, Arkansas, where United States Attorney for the Western District of Arkansas Clinton R. Barry charged them with violating the National Firearms Act. Barry knew all about Miller, as he had attended the O’Malley trials and seen Miller testify. Barry was eager to ensure the government could prove an NFA violation. It is “[e]xtremely important this case be investigated by competent federal officers quickly before these parties released on bond to prove possession this weapon in Oklahoma immediately before arrest in Arkansas to show transportation.” The United States Attorney’s office forwarded Barry’s request to the F.B.I. for investigation.
N.Y.U. Journal of Law & Liberty [Vol. 3:48 2008]

There is a different version of the arrest of Miller in Unintended Consequences, this appears to be more factual.

This is how the District Judge Heartsill Ragon described it:

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 1132c, Title 26 U.S. C.A., the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S. C.A. § 1132 et seq.
United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939)

There are some significant aspects to this case and how it was charged. The state would have to prove that the firearm in question required a NFA tax stamp, that it did not have that tax stamp, that it had been transported across state lines. And that the police had reason to make the stop.

This was before Miranda but the law still required some reason to arrest and search people.

The Miller case was a case of tax evasion. Failure to pay a $200 tax on a $15 shotgun. In addition, the NFA made transporting a registered firearm across state lines a crime unless the state first gave permission.

Now, Miller was a bad man. The sort of man that ends up missing, presumed dead, shortly after his “friends” locate him. Judge Ragon knew this. The speculation is that Judge Ragon wanted to establish a precedent for the NFA being constitutional.

He was known for being a party man and a strong supporter of Roosevelt’s “New Deal”. Given that Miller was likely to end up dead if he was released from the safety of jail, and that Miller was unlikely to pay for more lawyering than was absolutely required to get out of jail, the Judge decided to set the case up for a Supreme Court ruling.

If he found the NFA constitutional, Miller would go to jail and that would be the end of it. If, on the other hand, he found the NFA unconstitutional, the state would appeal directly to the Supreme Court, which would then issue an opinion that would be binding on the entire United States.

So he did:

The indictment is based upon the Act of June 26, 1934, C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. § 1132j. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The demurrer is accordingly sustained.

The state then, as expected, appealed to the Supreme Court.

The Supreme Court held…

By the time the case made it to the Supreme Court, Miller was long gone. It is unclear what happened to him, he was presumed dead.

The case continued because the question before the court was a constitutional issue and not a person issue. Yes, Miller would have been found “not guilty” if the NFA was overturned, but the important issue before the court was: Is the NFA constitutional?

Thus, we get the Miller opinion:

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.
United States v. Miller, 307 U.S. 174

There are important phrases in this paragraph, In the absence of any evidence…Id. means that there was no evidence presented to the Supreme court. This is because there was nobody arguing for the Miller side. The only lawyers there were representing the state. …it is not within judicial notice…Id. Again, this means that nobody presented evidence to the court regarding the use of SBS in the military.

What this means is that the first Supreme Court ruling on the Second Amendment was done ex parte. There were no counterarguments given.

The rest of the opinion is, amazingly enough, about the text, history and tradition of the Second Amendment. It wasn’t a 200-page novel, such as today’s opinions can be, it was just a few pages long.

What the Court said was that the people were required to have arms and ammunition for those arms. The Court knows this because the regulatory tradition of the founding era had multiple instances of requiring men to muster for militia service with their personal weapons.

Holding v. Dicta

The holding in Miller was short and to the point:

We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.
Id. At 183

Everything else is dicta. Discussion of how the Court reached the decision. There is an implication that the inferior courts will fallow the dicta.

The dicta were about the regulations that the Supreme Court found to support their holding. The gist, from the pro-Second Amendment side, is that the court was saying that it was only because there was no proof it was a military arm that the NFA withstood the challenge.

The gun grabbers argue that the dicta says that only the military can have them. The military being the militia.


After the Miller opinion was issued, nothing happened.

Nobody was actively trying to take guns away from The People. The NFA was just a tool law enforcement could use to put criminals in jail. The adage that they couldn’t get him for murder, but he was behind bars for tax evasion.

For most people, getting caught with an unregistered NFA item just meant that they had to register it, pay their $200 and go on their way.

As far as I can tell, this policy was a policy, not a regulation. At some point, the policy changed, and that tax stamp was required or else.

There were a few times when there were “amnesties” where you could register NFA items without fearing you would be arrested. Since these were policies, there wasn’t a great deal of trust in them. At least the state said you wouldn’t be prosecuted for having the NFA item you were registering. Today, the ATF only says that they will waive the fee for attempting to register your pistol as an SBR. Nothing about an actual “amnesty”.

In the later half of the 20th century, the infringers grasped onto the concept of “part of the militia” and using the language of the Second Amendment started arguing that the Second Amendment only applied to members of the militia and that the militia no longer existed. It had become the National Guard.

At this point, the argument was that only firearms which the military used were “arms” under the Second Amendment, but that didn’t matter because the Second Amendment had nothing to do with you.

Also, during the later part of the 20th century, the anti-gun people started to push the notion of “too dangerous”. The idea that some firearms were just not acceptable for civilian use.

Post Heller

When the Heller Court said that the Second Amendment protected an individual right, they stated that Miller supported this 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.Id.. When we hear the term “In common use at the time” we are hearing the words of the Miller Court, not Heller, or Bruen.

This language explicitly says that the individual should have the arms of the Militia/Military. It implies that non-military firearms are not protected.

With the Heller opinion, things changed. The goal of the infringers was to find a wedge that would allow them to continue to infringe. That wedge was “levels of scrutiny”. This was built on the dual concept of “core Second Amendment right” to bear some firearm for self-defense within the home, and for the public good/safety.

This was a winning strategy for the anti-gun people. They were able to drive that wedge in so hard and so deep that it cracked Heller in two. It made it possible for any infringement to survive a constitutional challenge because The People’s rights would just be balanced out of existence.

Post Bruen

With Bruen stopping the means-end, two-step shuffle, it was clear that most infringements would fail legal challenge. There were only a few, very limited, paths to an infringement surviving a challenge.

  1. The object was not an “arm” protected by the Second Amendment
  2. There were regulations from the founding era that were relevantly similar
  3. The infringement wasn’t actually stopping a person from keeping and bearing arms
  4. The infringement was addressing a new and novel social or technological issue

We can see that the Supreme Court has consistently identified ammunition as being “arms” protected by the Second Amendment. The circuit courts have been consistent, pre Bruen, of finding magazines and other firearm parts to be “arms” protected by the Second Amendment.

The only place where obvious arms are not protected is a very limited carveout, created by Alito.

It may be objected that if weapons that are most useful in military service, —M-16 rifles and the like, may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
District of Columbia v. Heller, 554 U.S. 570 at 2818

“Most useful in military service” is the phrase that the infringers have currently latched on to. This bit of dicta is saying that bans on M16s, i.e. NFA items, would seem to run counter to the need to have people ready to join the militia. Alito points out that because the prefactory clause and the protected right are independent, the pro-gun people can’t argue that military weapons systems should be protected under the Second just because of the prefactory clause.

The infringers are now arguing that if an arm is most useful for the military, then it is not protected. “Most useful” is of course a very subjective opinion. If the military finds it more useful than I, that makes it “most useful for military service”.

Consider MREs. They have a place in my preps. They are useful, but not something I actually need. The military needs them. It is how they feed the troops. They are most useful for military service. That is not an excuse to limit The People’s right to own them.

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By awa

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