On Miller's Shotgun

Justice is traditionally represented as a lady with a blindfold, a scale, and a sword. I am wondering the sword should be replaced with a replication of Miller's infamous shotgun?

US v. Miller is among the most quoted Supreme Court decision in the great gun debate, and is quoted by both sides. Neither side is entirely wrong in its quotes. However, it is not that the Court was unclear, it is that there were several questions before the court, but even more questions not before the court. The major question is not whether Miller had a Right to bear his shotgun, it was whether the National Firearms Act of 1934 was constitutional. There were two distinct challenges to the National Firearms Act. Both arguments were rejected. The question of Miller's right to bear the shotgun was not resolved, but was returned to the lower court.

The reader should definitely read the whole decision. Don't trust what others say the court said, except, of course, the following…

What the Court Did Say

The National Firearms Act was passed under fundraising and commerce powers. However, the defense argued that it was really a police powers act. Police powers are reserved to the states. Is the National Firearms Act therefore unconstitutional?

Considering Sonzinsky v. United States, 1937, 300 U.S. 506, 513, 57 S. Ct. 554, and what was ruled in sundry causes arising under the Harrison Narcotic Act2-United States v. Jin Fuey Moy, 1916, 241 U.S. 394, 36 S.Ct. 658, Ann.Cas.1917D, 854; United States v. Doremus, 1919, 249 U.S. 86, 94, 39 S.Ct. 214; Linder v. United States, 1925, 268 U.S. 5, 45 S.Ct. 446, 39 A.L.R. 229; Alston v. United States, 1927, 274 U.S. 289, 47 S.Ct. 634; Nigro v. United States, 1928, 276 U.S. 332, 48 S.Ct. 388-the objection that the Act usurps police power reserved to the States is plainly untenable.

The Court declared this was old ground. Prior decisions stand. The National Firearms Act is not vulnerable to this challenge. Also, the lower court had not accepted this argument, either. Both Courts being in agreement, both disagreeing with Miller's defense, the list of prior cases was deemed sufficient answer.

Did Miller have a right to keep and bear his shotgun?

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 of Tennessee, 2 Humph., Tenn., 154, 158.

The Court did not expressly rule. This question was returned to the lower court. The Court did raise the question on whether a shotgun was a weapon properly used by the militia, if a shotgun was a weapon properly used to enforce laws, suppress insurrections, or repel invasions. While the Court did not make it explicit, it would seem that if Miller's defense could establish shotguns are properly militia weapons, Miller would likely have a right to carry the shotgun.

The National Firearms Act seems violate the Second Amendment. Is the National Firearms Act therefore unconstitutional? The lower court had voided section 10 of the National Firearms Act.

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 decision contains many other examples of Militia laws, regulations, and history which are consistent with a collective Right to Bear Arms. While one paragraph each was dedicated to the above two questions, by far the bulk of the US v. Miller decision is concerned with reversing the lower court's rejection of the National Firearms Act. The case ends...

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.

Reversed and remanded.

The history selected by the Court emphasized a collective right to bear arms. It quotes laws from states such as Massachusetts and Virginia that support a collective right, rather than states such as Pennsylvania with an individual right. There is thus clear support for a collective right to a Militia in US v. Miller.

The lengthy history of the Militia and the Second Amendment did not end with a clean meaning of the Second Amendment. The Court merely says the National Firearms Act does not conflict with the its understanding of the Second Amendment. The National Firearms Act is declared constitutional, and is allowed to stand. The lower court's ruling - that the National Firearms Act was unconstitutional on Second Amendment grounds - was overturned.

What the Court Did Not Say

The three questions listed above seem to be the three questions that had to be answered to continue the US v. Miller court case. However, lots of folks have read lots of other things into US v. Miller. What follow are some of these questions, and some possible answers. I will not pretend these are the only possible answers. I do not doubt that other court cases could support other opinions. This paper is about Miller, however, not the entire body of Anglo-American law.

Did the Court rule out the possibility of an individual Right to bear Arms?

Most if not all of 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.

No. The Court acknowledged that there were alternate ways to understand the Second Amendment. However, in the opinion of the Court, none of these various alternative readings would effect the constitutionality of the National Firearms Act. This makes sense. If the National Firearms Act does not place an undue restriction on a member of the Militia, it does not place undue restriction on an individual.


If Miller did have a constitutional right to keep and bear the shotgun, was he home free?

No. Even if he had a guaranteed right to carry the shotgun, the Court had upheld the Firearm Act. He had not paid all the fees. He had not carried the required paperwork. Miller would still be in Big Trouble. The important question in this case was not whether Miller had a Right to bear a shotgun, but whether the Firearm Act was constitutional.

The Court expressed awareness of multiple possible meanings of the Second Amendment, but said this distinction was not relevant to the constitutionality of the National Firearms Act. Was it relevant as to whether Miller had a right to keep and bear his shotgun?

The Court did not address this issue in this decision. The Court made strong arguments for a collective right. An individual right to bear arms might include all arms, not just militia arms. I believe if Miller's defense could not establish shotguns were militia weapons, they could have pointed to the Court's disclaimer that there are multiple interpretations of the Amendment. This is a weak support of an individual right interpretation.

However, the case never got that far. Miller skipped bail. Also, the right to carry the shotgun would not have mattered. Miller had not complied with the National Firearms Act, which was upheld as constitutional. The question of individual against collective rights is thus not addressed in US v. Miller, and is not overly relevant. What Miller needed was a Right to Ignore the Federal Bureaucracy, not a Right to bear Arms.

The court based the test on whether Miller had a right to bear arms on a single court case, Aymette v Tennessee. If the Court is basing its understanding of the right to bear arms on state precedents, rather than the wording of the Second Amendment itself, what is the wording of the Tennessee Right to keep and bear Arms?

"That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

Tennessee's right to keep and bear arms is clearly collective. As a counter example, Pennsylvania's is worded, "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned." It is easy to read into Tennessee's wording that the Right is in respect only to militia duty, to the common defense, while the state has the power to legislate to prevent gun crime. Tennessee's Right is close to what Gun Control Incorporated would like to see the US Second Amendment interpreted. Pennsylvania's is a National Rifle Association wording. It is a right granted to all citizens, and the purpose is for both community defense and self defense.

The court stated, "Most if not all of 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." This is an understatement of the problem. Some states definitely intended an individual right to bear arms in self defense. Some intended a collective right to a militia for the common defense. Some intended both. The Federalists and Anti-Federalists disagreed on which version of the Right was important. The wordings of the state Bills of Rights reflect which political party was in control of which state at the time the state constitutions were written. The Tennessee precedent that a weapon must be appropriate for use in a militia - that it must be useful to enforce laws, suppress insurrections or repel invasions - is correct in Tennessee. It is equally incorrect, without question, in Pennsylvania.

However, if the US Right, like the Pennsylvania Right, is an individual Right given to "the People", the Fourteenth amendment might prohibit the Tennessee legislature from regulating "the wearing of arms with a view to prevent crime." The states may not write laws which infringe on the privileges and immunities of US Citizens. These are specified in the First through Ninth Amendments.

The Court was perhaps in error basing its test for whether a individual has a right to carry a weapon on state case law. There also seems to be a bias that the laws, traditions, and precedents quoted in Miller are from collective rights states. This may be why the court acknowledged "variant conclusions concerning the scope of the right guaranteed."

Does US v. Miller support or refute the constitutionality of the Brady Bill?

The Brady Bill seems to be supported. Both the National Firearms Act and the Brady Bill increase paperwork and restrict criminal use of firearms. Neither limits the formation of an effective Militia, excepting that a Militia bogged down in paperwork is a less effective fighting force. The Court that upheld the National Firearms Act would quite likely have upheld Brady.

US v. Miller also supports Brady by setting precedent that Congress can use its interstate commerce powers to control firearms. In the real world, as opposed to this web page conjecture, part of the Brady Bill was rejected by the modern Court for abuse of interstate commerce powers. The mid 20th Century Courts were very generous in letting Congress use interstate commerce powers. Times change. A type of challenge the Miller Court described as "plainly untenable," the modern court decades later accepted.

This may be why both GCI and the NRA are so hesitant about creating a test case and pushing it to the Supreme Court. In spite of both side's brave proclamations about what the law "really" says, they don't know what the current Court will say either.

Does US v. Miller support or refute the constitutionality of the resent assault weapons bans?

The General Assembly of Virginia, October, 1785 (12 Hening's Statutes c. 1, p. 9 et seq.), 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 [307 U.S. 174, 182] 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.'

If I were going to repel an invasion, I would want an assault rifle, not a shotgun. US v. Miller makes a case for a collective right to an effectively armed militia. It suggests that the weapons protected by the Second Amendment are those appropriate for military and law enforcement duty. A shotgun is more commonly used to hunt birds and destroy clay disks. Modern law enforcement officers carry handguns as their primary firearms. Modern infantry carry assault rifles with big magazines. Shotguns are carried occasionally by either, but not commonly, not routinely. If the assault weapon ban could have been presented to the US v. Miller court, an overturn of the ban seems the likely result.

Does US v. Miller support the interpretation of the Second Amendment that says only members of the National Guard are 'militia' and thus have any Right to bear Arms?

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.' U.S.C.A.Const. art. 1, 8. 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 [307 U.S. 174, 179] 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 Court thus mentions favorably a federal power to approve or refuse standing armies or select militias raised by the state. This power is created by Article I Section 10 of the constitution, which ends as follows...

No state shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace*, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Thus, states cannot raise regular troops or select militia, such as the National Guard, without permission of Congress. However, neither the federal government under the Second Amendment, nor the state government, when the Second and Fourteenth are both taken in consideration, may disarm the people.

* Emphasis added.