Originally cited at http://www.tiac.net/users/rickers/miller.htm
The memorandum opinion of the District Court, filed January 3, 1939 (R. 3), sustaining a demurrer to the indictment, is not reported.
The judgment of the District Court was entered on January 3, 1939 (R. 4). The appeal was prayed for and allowed on January 30, 1939 (R. 4, 5). The jurisdiction to review the judgment complained of, by direct appeal, is conferred by the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. C., Title 18, Sec. 682), and Section 238 of the Judicial Code as amended (U. S. C., Title 28, Sec. 345). Probable jurisdiction was noted by this Court on March 13, 1939.
Whether the District Court erred in sustaining the demurrer of the appellees to the indictment on the ground that Section 11 of the National Firearms Act is invalid as contravening the Second Amendment to the Constitution of the United States.
The Second Amendment to the Constitution provides:
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.
Section 11 of the National Firearms Act (Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239; U. S. C., Title 26, Sec. 1132j), provides:
It shall be unlawful for any person who is required to register as provided in Section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in Section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce.
The National Firearms Act, as amended April 10, 1936, has been copied in its entirety in the Appendix, infra, pp. 22-30.
The appellees were indicted on September 1, 1938, in the United States District Court for the Western District of Arkansas for violating Section 11 of the National Firearms Act (R. 1). The indictment, which was in one count, charged that on April 18, 1938, the appellees unlawfully transported in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs, Arkansas, a certain firearm, to wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, the appellees not having registered the firearm as required by Section 5 of the National Firearms Act and not having in their possession a stamp-affixed order as required by Section 4 of the National Firearms Act and the regulations issued under authority of such Act.
The appellees filed a demurrer to the indictment which alleged, inter alia, that the National Firearms Act and the provisions thereof with respect to the registration of firearms and the possession of stamp-affixed orders are in violation of the Second Amendment to the Constitution (R. 2-3). In a memorandum opinion filed January 3, 1939 (R. 3), the District Judge held Section 11 of the National Firearms Act, the section under which the indictment was laid, invalid, as being in contravention of the Second Amendment. The demurrer was accordingly sustained (R. 4). The other grounds assigned in the demurrer were not passed upon by the court.
On January 30, 1939, the United States filed a petition for appeal, assignment of errors, and statement of jurisdiction with the District Court (R. 4-5), and on the same day the District Court signed the order allowing an appeal (R. 5). On March 13,1939, this Court noted probable jurisdiction.
The District Court erred:
(1) In holding that Section 11 of the National Firearms Act is invalid as violating the Second Amendment to the Constitution.
(2) In sustaining the demurrer to the indictment.
The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i. e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment.
SECTION 11 OF THE NATIONAL FIREARMS ACT DOES NOT VIOLATE THE SECOND AMENDMENT
In sustaining the demurrer to the indictment the District Court in its memorandum opinion stated merely that (R. 3):
The indictment is based upon the Act of June 26, 1934, c. 757, Section 11, 48 Statute 1239. 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 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."
Whatever may have been the reasons which actuated the court in reaching this conclusion, we submit that "the right of the people to keep and bear arms, " as that term is used in the Second Amendment, is not abridged by the Section.
Preliminarily, it may be pointed out that the National Firearms Act does not apply to all firearms but only to a limited class of firearms. The term "firearm" is defined in Section 1 of the Act (infra, p. 22) to refer only to "a shotgun or rifle having a barrel of less than 18 inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition."  But even as to this class of firearms there is not a word in the National Firearms Act which expressly prohibits the obtaining, ownership, possession or transportation thereof by anyone if compliance is had with the provisions relating to registration, the payment of taxes, and the possession of stamp-affixed orders (infra, pp. 24 et seq.). It may be assumed that Congress, in inserting these provisions in the National Firearms Act, intended, through the exercise of its taxing power and its power to regulate interstate and foreign commerce, to discourage, except for military and law-enforcement purposes, the traffic in and utilization of the weapons to which the Act refers. But it is also indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and the desperado. In the Report of the Committee on Ways and Means of the House of Representatives (H. Rep. No. 1780, 73d Cong., 2d Sess.) it was stated (pp. 1-2):
This bill is the result of the suggestions to Congress for many years that there is a legitimate field and method of regulation of dangerous weapons by the Congress. It has been frequently pointed out that there are limitations on the States, that the Federal Government has powers in the field, and that the evil needs a remedy. The growing frequency of crimes of violence in which people are killed or injured by the use of dangerous weapons needs no comment. The gangster as a law violator must be deprived of his most dangerous weapon, the machine gun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machine guns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting arms. But while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a machine gun or sawed-off shotgun.
* * * * *
In general this bill follows the plan of the Harrison Anti-Narcotic Act and adopts the constitutional principle supporting that act in providing for the taxation of firearms and for procedure under which the tax is to be collected. It also employs the interstate and foreign commerce power to regulate interstate shipment of fire-arms and to prohibit and regulate the shipment of fire-arms into the United States.
It is apparent therefore that Section 11, the section upon which the indictment was based, places restrictions upon the transportation in interstate commerce of only those weapons which are the tools of the criminal. "The right of the people to keep and bear arms" recognized by the Second Amendment does not, we submit, guarantee to the criminal the right to maintain and utilize arms which are particularly adaptable to his purposes.
The Second Amendment does not confer upon the people the right to keep and bear arms; it is one of the provisions of the Constitution which, recognizing the prior existence of a certain right, declares that it shall not be infringed by Congress. Thus the right to keep and bear arms is not a right granted by the Constitution and therefore is not dependent upon that instrument for its source. United States v. Cruikshank, 92 U. S. 542, 543; Presser v. Illinois, 116 U. S. 252, 265; Robertson v. Baldwin, 165 U. S. 275, 281.
Accordingly, in determining the nature and extent of the right referred to in the Second Amendment, we must look to the common law on the subject as it existed at the time of the adoption of the Amendment. State v. Workman, 35 W. Va. 367, 372; State v. Kerner, 181 N. C. 574, 577; cf. Patton v. United States, 281 U. S. 276, 288. While it has been said that the question whether there was a common law right to possess or carry firearms is a disputed one (People v. Horton, 264 N.Y.S. 84, 87, affirmed, 239 App. Div. 610), it cannot be doubted that at least the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England  and was a part of our common law derived from that nation. 
The earliest enactment upon the subject of bearing arms (Statute of Northampton, 2 Edw. III, c. 3, enacted in 1328) seems to have gone so far as to make it a misdemeanor for anyone, except the king's ministers or servants, to go or ride anywhere armed by day or night.  While it would seem doubtful that this statute was construed as broadly as its language warranted, it was recognized that the statute meant at least to punish people who went armed to terrify the king's subjects and that in this respect it constituted an affirmation of the common law. In Sir John Knight's case (1686), 3 Mod. 117, 87 Eng. Rep. 75, the Report states (p. 118):
The Chief Justice said, that the meaning of the statute of 2 Edw. 3, c. 3, was to punish people who go armed to terrify the king's subjects. It is likewise a great offence at the common law, as if the king were not able or willing to protect his subjects; and therefore this act is but an affirmance of that law; and it having appointed a penalty, this Court can inflict no other punishment than what is therein directed.
And in Bishop on Statutory Crimes (3d Ed.), sec. 784, it was said (p. 531):
Whatever we may deem of this statute, the leading offense punishable by it, namely, riding or going about armed with dangerous or unusual weapons to the terror of the people, was always indictable under the common law of England, and it has become a part of the common law of our states. 
In further derogation of any supposed right to possess weapons conferred by the English common law, a statute was enacted in 1670 (22 Charles II, c. 25, sec. 3) which provided that no person not having lands of a yearly value of 100 pounds, other than the son and heir of an esquire or person of higher degree, should be allowed to have or use guns, bows, etc.
Thus it would seem that the early English law did not guarantee an unrestricted right to bear arms. Such recognition as existed of a right in the people to keep and bear arms appears to have resulted from oppression by rulers who disarmed their political opponents and who organized large standing armies which were obnoxious and burdensome to the people. (Cooley's Constitutional Limitations (8th ed.) Vol. 1, p. 729; 28 Harvard Law Review 473.) This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense. Thus, in Aymette v. State, 2 Humphr. (Tenn.) 154, the court, in reviewing the history and origin of the right in England to bear arms, particularly as assured by the Bill of Rights of 1688, 1 Wm. & Mary, c. 2, said (pp. 156-157):
By the act 22 and 23, Car. 2d, ch. 25, sec. 3, it is provided that no person who has not lands of the yearly value of œ100, other than the son and heir apparent of an esquire, or other person of higher degree, &c., shall be allowed to keep a gun, &c. By this act, persons of a certain condition in life were allowed to keep arms, while a large proportion of the people were entirely disarmed. But King James the 2d, by his own arbitrary power, and contrary to law, disarmed the Protestant population and quartered his Catholic soldiers among the people. This, together with other abuses, produced the revolution by which he was compelled to abdicate the throne of England. William and Mary succeeded him, and in the first year of their reign, Parliament passed an act recapitulating the abuses which existed during the former reign, and declared the existence of certain rights which they insisted upon as their undoubted privileges. Among these abuses they say, in sec. 5, that he had kept a "standing army within the kingdom in time of peace without consent of Parliament, and quartered soldiers contrary to law." Sec. 6. "By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law."
In the declaration of rights that follows, sec. 7 declares, that "the subjects which are Protestants may have arms for their defence, suitable to their condition and as allowed by law." This declaration, although it asserts the right of the Protestants to have arms, does not extend the privilege beyond the terms provided in the act of Charles 2d, before referred to. "They may have arms," says the Parliament, "suitable to their condition, and as allowed by law." The law, we have seen, only allowed persons of a certain rank to have arms, and consequently this declaration of right had reference to such only. It was in reference to these facts, and to this state of the English law, that the second section of the amendment to the Constitution of the United States was incorporated into that instrument. It declares that "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 evil that was produced by disarming the people in the time of James the second was that the King, by means of a standing army, quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel, and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the King to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands. No private defence was contemplated or would have availed anything. If the subjects had been armed, they could have resisted the payment of excessive fines, or the infliction of illegal and cruel punishments. When, therefore, Parliament says, that "subjects which are Protestants may have arms for their defence, suitable to their condition as allowed by law," it does not mean for private defence, but being armed, they may as a body, rise up to defend their just rights, and compel their rulers to respect the laws. This declaration of right is made in reference to the fact before complained of, that the people had been disarmed, and soldiers had been quartered among them contrary to law. The complaint was against the government. The grievances to which they were thus forced to submit were for the most part of a public character, and could have been redressed only by the people rising up for their common defence to vindicate their rights.
In this country, as in England, it has been almost universally recognized that the right to keep and bear arms, guaranteed in both the Federal and State Constitutions, had its origin in the attachment of the people to the utilization as a protective force of a well-regulated militia as contrasted with a standing army which might possibly be used to oppress them. (People v. Brown, 253 Mich. 537, 539; Cooley's Constitutional Limitations (8th ed.), vol. 1, p. 729; Story on the Constitution (2d ed.), vol. 2, secs. 1897-1898; 28 Harvard Law Review 473; see also the Third Amendment to the Constitution.) Indeed, the very declaration in the Second Amendment that "a well- regulated militia, being necessary to the security of a free State," indicates that the right secured by that Amendment to the people to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state. In Salina v. Blaksley, 72 Kan. 230, the court, in referring to the provision of the State Constitution declaring that the people had the right to bear arms for their defense and security, said (pp. 232- 233):
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution, which says: "A well-regu- lated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Here also the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law.
And in State v. Buzzard, 4 Ark. 18, the court, in referring to the Second Amendment, said (pp. 24-25):
If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which the right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown; consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood, that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in times of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, which produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not designed to operate as an immunity to those, who should so keep or bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.
While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State, supra, it was said (p. 158):
As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.
In State v. Workman, 35 W. Va. 367, 373, supra, it was likewise said:
* * * in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets--arms to be used in defending the State and civil liberty--and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperadoes, to the terror of the community and the injury of the State. Bish. Crim. St. 792.
See also State v. Blaksley, 72 Kan. 230; People v. Persce, 204 N. Y. 397; People v. Warden, 139 N. Y. S. 277; People v. Ferguson, 129 Cal. App. 300; Ex parte Thomas, 1 Okla. Cr. R. 210; Andrews v. State, 3 Heisk. (Tenn.) 165; Fife v. State, 31 Ark. 455; State v. Duke, 42 Tex. 455; People v. Brown, 253 Mich. 537; State v. Hogan, 63 Ohio St. 202; Pierce v. State, 42 Okla. Cr. R. 272; Mathews v. State, 33 Okla. Cr. R. 347; English v. State, 35 Tex. 473; State v. Kerner, 181 N. C. 574; Glenn v. State, 10 Ga. App. 128; Hill v. State, 53 Ga. 472. 
In recognition of this principle, this Court, in Robertson v. Baldwin, 165 U. S. 275, 281-282, stated that the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.
That the foregoing cases conclusively establish that the Second Amendment has relation only to the right of the people to keep and bear arms for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals. On the contrary they frequently constitute the arsenal of the "public enemy" and the "gangster" and are not weapons of the character which, as was said in People v. Brown, 253 Mich. 537, 542, are recognized by the common opinion of good citizens as proper for defence.
In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment (United States v. Adams, 11 F. Supp. 216 (S. D. Fla.)), the contention was summarily rejected as follows (pp. 218-219):
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights. * * *
ROBERT H. JACKSON,
Assistant Attorney General.
WILLIAM W. BARRON,
Special Assistant to the Attorney General.
FRED E. STRINE,
GEORGE F. KNEIP,
W. MARVIN SMITH,
1. As amended by the Act of April 10, 1936, c. 169, 49 Stat. 1192 (infra, p. 22), the term firearm does not include a rifle which is within the foregoing provisions solely by reason of the length of its barrel if the calibre of such rifle is .22 or smaller and if its barrel is 16 inches or more in length.
2. Hawkins Pleas of the Crown (6th Ed.), Vol. I, p. 266; Wharton on Criminal Law (11th Ed.), Vol. 3, sec. 1869; Russell on Crimes (6th Ed.), Vol. 1, pp. 588-589; Hochheimer's Criminal Law (2d Ed.), sec. 281; Blackstone Comm., Vol. 4, p. 149.
3. Bishop's Statutory Crimes (3d Ed.), sec. 784; McClain on Criminal Law, Vol. 2, sec. 1029. See also State v. Huntly, 25 N. C. 418; State v. Roten, 86 N. C. 701.
This statute (1 Statutes at Large of England, p.
422), so far as pertinent, provides:
"Item it is enacted, That no Man great nor small, of what Condition soever he be, except the King's Servants in his Presence, and his Ministers in executing of the King's Precepts, or of their Office, and such as be in their Company assisting them, and also upon a Cry made for Arms to keep the Peace, and the same in such Places where such Acts happen, be so hardy to come before the King's Justices, or other of the King's Ministers doing their Office with Force and Arms, (2) nor bring no Force in affray of the Peace, (3) nor to go nor ride armed by Night nor by Day, in Fairs, Markets, nor in the Presence of the Justices or other Ministers, nor in no Part elsewhere, upon Pain to forfeit their Armour to the King, and their Bodies to Prison at the King's Pleasure. * * *"
5. See also Rex v. Meade, 19 T. L. R. 540 (1903), where the court said that the firing of a revolver in a public place, with the result that the people were terrorized, was an offense not only under the Statute of Northampton, but also under the common law.
6. It has even been said in Walter v. State, 3 Ohio N. P. N. S. 13, that it is doubtful whether a shotgun is within the meaning of the term "arms" as used in the Constitution of Ohio.