Die Heuning Pot Literature Guide
Right to Bear Arms
Right to Bear Arms
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United States v. Miller

  • 1938 Supreme Court decision supported a federal gun control law
  • Ruled that independent gun rights had to be connected to citizens' "common obligation" to serve in militias when called
  • Case opened door to more individualistic reading of Second Amendment, but offered no protection to guns that couldn't reasonably be used in militia service
The case that produced this ruling was United States v. Miller. Jack Miller and Frank Layton were arrested in 1938 for carrying an unregistered sawed-off shotgun across state lines. In 1934, Congress, in an effort to crack down on the machine guns and sawed-off shotguns commonly used by notorious gangsters like Al Capone, had passed the National Firearms Act, which imposed a prohibitively high tax on their sale. Miller and Layton were arrested for carrying a gun that did not bear a stamp certifying that the tax had been paid. The case made its way to the Supreme Court when a lower court accepted the defendants' argument that the National Firearms Act violated their Second Amendment right to keep and bear arms. In defending the constitutionality of the National Firearms Act, government lawyers offered several interrelated arguments. They suggested first that the Second Amendment protected only a "collective," not an individual right—that is, the right belonged to "the people" united collectively for their common defense, not to individual people carrying guns for their personal self-defense. Therefore, the right to bear arms was inherently linked to service within state militias or similar government-organized military bodies. In addition, the government argued, that the protection extended only to weapons commonly used in military service. The Court generally agreed with the government's position. It reversed the lower court ruling and held that the National Firearms Act was constitutional. But the Court did not embrace all parts of the government's argument. The Court did rule that the rights of states to form militias, not the rights of individuals to own guns, were the focus of the Second Amendment, and that its protections must be understood within the context of militia service. But at the same time, the Court hinted for the first time at an individual right in acknowledging that when the amendment was drafted, militias usually included all free men, and required that these men provide their own weapons. In other words, the amendment was tied to a generally understood "common obligation . . . to possess arms . . . and to cooperate in the work of defense." Moreover, the Court opened the door to an individual reading of the amendment even further by holding that a sawed-off shotgun was unprotected because it had no "reasonable relationship to the preservation or efficiency of a well regulated militia." Taken together, these two parts of the ruling suggested that all "free men" could possess weapons of the type used for militia service. But in the short term the Court closed this door by insisting that only those guns usable in militia service, and held for the purpose of militia service were protected by the Second Amendment.
Next Page: District of Columbia v. Heller
Previous Page: United States v. Cruikshank

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