United States v. Miller

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United States v. Miller
Seal of the United States Supreme Court.svg
Argued March 30, 1939
Decided May 15, 1939
Full case name United States vs. Jack Miller, et al.
Citations 307 U.S. 174 (more)
59 S. Ct. 816; 83 L. Ed. 1206; 39-1 U.S. Tax Cas. (CCH) P9513; 22 A.F.T.R. (P-H) 331; 1939-1 C.B. 373; 1939 P.H. P5421
Prior history Appeal from the District Court of the United States for the Western District of Arkansas
The National Firearms Act — as applied to transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it — was not unconstitutional as an invasion of the reserved powers of the States and did not violate the Second Amendment of the United States Constitution.
Court membership
Case opinions
Majority McReynolds, joined by Hughes, Butler, Stone, Roberts, Black, Reed, Frankfurter
Douglas took no part in the consideration or decision of the case.
Laws applied
National Firearms Act of 1934 (NFA)

United States v. Miller, 307 U.S. 174 (1939), was a Supreme Court case that involved a Second Amendment challenge to the National Firearms Act of 1934 (NFA). Miller is often cited in the ongoing American gun politics debate, as both sides claim that it supports their position.


United States v. Miller involved a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine's Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barreled rifles and shotguns) to be registered with the Miscellaneous Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) which at the time was part of the Bureau of Internal Revenue (ancestor of today's Internal Revenue Service),[1] with a $200 tax paid at the time of registration and again if the firearm was ever sold.

Defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. District Court Judge Heartsill Ragon accepted the claim and dismissed the indictment, stating, "The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'" Judge Ragon provided no further explanation of his reasons. In reality, Ragon was in favor of the gun control law and ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the government's appeal to the Supreme Court would be a sure win because Miller and his attorney would not even be present at the argument.[2] [3]

On March 30, 1939, the Supreme Court heard the case. Attorneys for the United States argued four points:

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

Neither the defendants nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling.[4] Miller was found shot to death in April, before the decision was rendered.[5]


On May 15, 1939 the Supreme Court, in an opinion by Justice McReynolds, held: The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

  1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506,[2] and Narcotic Act cases. P. 307 U. S. 177.
  2. Not violative of the Second Amendment of the Federal Constitution. P. 307 U. S. 178.

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

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.


Gun control advocates argue that, for over six decades, the United States Circuit Courts, with very few exceptions, have cited Miller in rejecting challenges to federal firearms regulations.[6]

Gun rights advocates claim this case as a victory because they interpret it to state that ownership of weapons for efficiency or preservation of a well-regulated militia unit of the present day is specifically protected. Furthermore, such advocates frequently point out that short-barreled shotguns have been commonly used in warfare, and the statement made by the judges indicates that they were not made aware of this.[7] Because the defense did not appear, there was arguably no way for judges to know otherwise. Two of the justices involved in the decision had prior military experience, Justice Black as a Captain in the field artillery during WWI and Justice Frankfurter as a Major in the Army legal service; however, there is no way to know if they were personally aware of the use of shotguns by American troops. During WWI, between 30,000 and 40,000 short-barreled pump-action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners.[8]

Some argue that fundamental issues related to the case were never truly decided because the Supreme Court remanded the case to the federal district court for "further proceedings" that never took place — by the time of the Supreme Court decision, Miller had been killed and Layton made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.[5]

The U.S. Supreme Court has mentioned Miller in only 7 subsequent cases: McDonald v. City of Chicago (2010); Heller (2008); Printz (1997); Lewis (1980); Adams (1972); Atlanta Motel (1961); and Konigsberg (1961). Justice James Clark McReynolds authored the decision in United States v. Miller which was the only Supreme Court case that directly involved the Second Amendment until District of Columbia v. Heller in 2008.[9]

The Supreme Court's interpretations of the 1939 Miller opinion:

Konigsberg v. State Bar (1961); Footnote 10
That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . ." But as Mr. Justice Holmes once said: "[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604, 610. However, compare the qualified language of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." And see United States v. Miller, 307 U.S. 174.
Heart of Atlanta Motel v. United States (1964); (concurring opinion of Black; Footnote 11)
... cases in which the commerce power has been used to advance other ends not entirely commercial: e. g., ... United States v. Miller, 307 U.S. 174 (National Firearms Act);
Adams v. Williams (1972); (dissenting opinion of Douglas, joined by Marshall)
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

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.

— Id., at 178-179.
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.
Lewis v. United States (1980); Footnote 8
(the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not violate the Second Amendment).
Printz v. United States (1997) (concurring opinion of Thomas)
Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
District of Columbia v. Heller (2008)
"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment."

See also


  1. "ATF Online - Bureau of Alcohol, Tobacco and Firearms". Archived from the original on 2007-12-12. Retrieved 2007-12-27.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  2. "The Peculiar Story of U.S. v. Miller" (PDF). New York University. Retrieved 19 September 2014.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  3. United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939) [1]
  4. Levy, Robert A. (June 2008). "Second Amendment Haze". Washington Times. Retrieved 2009-07-25.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  5. 5.0 5.1 Michael S. Brown (August 6, 2001). "The strange case of United States v. Miller". Enter Stage Right - A Journal of Modern Conservatism.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  6. Merkel, William G.; Uviller, H. Richard (2002). The militia and the right to arms, or, How the second amendment fell silent. Durham, N.C: Duke University Press. ISBN 0-8223-3017-2.CS1 maint: multiple names: authors list (link)<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  7. Carter-Yamauchi, Charlotte A. (1991). A Clash of Arms: The Great American Gun Debate. Honolulu, HI: Legislative Reference Bureau. pp. 8–9. OCLC 23525976.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  8. Benedict Crowell, Assistant Secretary of War (1919). America's Munitions, 1917-1918. Government Printing Office, Washington D.C. pp. 185–186. When American troops were in the heat of the fighting in the summer of 1918, the German government sent a protest through a neutral agency to our Government asserting that our men were using shotguns against German troops in the trenches. The allegation was true; but our State Department replied that the use of such weapons was not forbidden by the Geneva Convention as the Germans had asserted. Manufactured primarily for the purpose of arming guards placed over German prisoners, these shotguns were undoubtedly in some instances carried into the actual fighting. The Ordnance Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers. The shell provided for these guns each contained a charge of nine heavy buckshot, a combination likely to have murderous effect in close fighting.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  9. Lucas, Roy (2004). "The Forgotten Justice James Clark McReynolds & The Neglected First, Second & Fourteenth Amendments". Washington, D.C. Retrieved March 21, 2012.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Further reading

  • Cottrol, R. J. (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland Publishing, Inc. ISBN 0-8153-1666-6.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  • Frye, Brian L. (2008). "The Peculiar Story of United States v. Miller". NYU Journal of Law & Liberty. 3 (1): 48–82.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles> [3]
  • Levy, Robert A.; Mellor, William H. (2008). "Gun Owners' Rights". The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Sentinel. pp. 107–126. ISBN 978-1-59523-050-8.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  • Van Alstyne, William (1994). "The Second Amendment and the Personal Right to Arms". Duke Law Journal. Duke University School of Law. 43 (6): 1236–1255. doi:10.2307/1372856. JSTOR 1372856.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

External links

Works related to United States v. Miller at Wikisource

  • Text of United States v. Miller, 307 U.S. 174 (1939) is available from:  Findlaw