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, 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.
26 F. Supp.
1002, reversed.
APPEAL under the Criminal Appeals Act from a judgment sustaining
a demurrer to an indictment for violation of the National Firearms
Act.
Page 307 U. S. 175
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
An indictment in the District Court, Western District Arkansas,
charged that Jack Miller and Frank Layton
"did unlawfully, knowingly, willfully, and feloniously transport
in interstate commerce from the town of Claremore in the State of
Oklahoma to the town of Siloam Springs in the State of Arkansas a
certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun
having a barrel less than 18 inches in length, bearing
identification number 76230, said defendants, at the time of so
transporting said firearm in interstate commerce as aforesaid, not
having registered said firearm as required by Section 1132d of
Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4
[§ 5], 48 Stat. 1237), and not having in their possession a
stamp-affixed written order for said firearm as provided by Section
1132c, Title 2, United States Code (June 26, 1934, c. 737, Sec. 4,
48 Stat. 1237) and the regulations issued under authority of the
said Act of Congress known as the 'National Firearms Act,' approved
June 26, 1934, contrary to the form of the statute in such case
made and provided, and against the peace and dignity of the United
States. [
Footnote 1] "
Page 307 U. S. 176
A duly interposed demurrer alleged: the National Firearms Act is
not a revenue measure, but an attempt to usurp police power
reserved to the States, and is therefore unconstitutional. Also, it
offends the inhibition of the Second Amendment to the Constitution
-- "A well regulated Militia, being necessary to the security of a
free State, the right of people to keep and bear Arms, shall not be
infringed."
Page 307 U. S. 177
The District Court held that section eleven of the Act violates
the Second Amendment. It accordingly sustained the demurrer and
quashed the indictment.
The cause is here by direct appeal.
Considering
Sonzinsky v. United States (1937),
300 U. S. 506,
300 U. S. 513,
and what was ruled in sundry causes arising
Page 307 U. S. 178
under the Harrison Narcotic Act [
Footnote 2] --
United States v. Jin Fuey Moy
(1916),
241 U. S. 394,
United States v. Doremus (1919),
249 U. S.
86,
249 U. S. 94;
Linder v. United States (1925),
268 U. S.
5;
Alston v. United States (1927),
274 U.
S. 289;
Nigro v. United States (1928),
276 U. S. 332 --
the objection that the Act usurps police power reserved to the
States is plainly untenable.
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.
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."
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
Page 307 U. S. 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 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 American Colonies In The 17th Century," Osgood, Vol. 1, ch.
XIII, affirms in reference to the early system of defense in New
England --
"In all the colonies, as in England, the militia system was
based on the principle of the assize of arms. This implied the
general obligation of all adult male inhabitants to possess arms,
and, with certain exceptions, to
Page 307 U. S. 180
cooperate in the work of defence."
"The possession of arms also implied the possession of
ammunition, and the authorities paid quite as much attention to the
latter as to the former."
"A year later [1632] it was ordered that any single man who had
not furnished himself with arms might be put out to service, and
this became a permanent part of the legislation of the colony
[Massachusetts]."
Also,
"Clauses intended to insure the possession of arms and
ammunition by all who were subject to military service appear in
all the important enactments concerning military affairs. Fines
were the penalty for delinquency, whether of towns or individuals.
According to the usage of the times, the infantry of Massachusetts
consisted of pikemen and musketeers. The law, as enacted in 1649
and thereafter, provided that each of the former should be armed
with a pike, corselet, head-piece, sword, and knapsack. The
musketeer should carry a 'good fixed musket,' not under bastard
musket bore, not less than three feet, nine inches, nor more than
four feet three inches in length, a priming wire, scourer, and
mould, a sword, rest, bandoleers, one pound of powder, twenty
bullets, and two fathoms of match. The law also required that
two-thirds of each company should be musketeers."
The General Court of Massachusetts, January Session 1784,
provided for the organization and government of the Militia. It
directed that the Train Band should "contain all able bodied men,
from sixteen to forty years of age, and the Alarm List, all other
men under sixty years of age, . . ." Also,
"That every noncommissioned officer and private soldier of the
said militia not under the controul of parents, masters or
guardians, and being of sufficient ability therefor in the judgment
of the Selectmen of the town in which he shall dwell, shall equip
himself, and be constantly provided with a good fire arm,"
etc.
By an Act passed April 4, 1786, the New York Legislature
directed:
"That every able-bodied Male Person, being
Page 307 U. S. 181
a Citizen of this State, or of any of the United States, and
residing in this State, (except such Persons as are hereinafter
excepted) and who are of the Age of Sixteen, and under the Age of
Forty-five Years, shall, by the Captain or commanding Officer of
the Beat in which such Citizens shall reside, within four Months
after the passing of this Act, be enrolled in the Company of such
Beat. . . . That every Citizen so enrolled and notified shall,
within three Months thereafter, provide himself, at his own
Expense, with a good Musket or Firelock, a sufficient Bayonet and
Belt, a Pouch with a Box therein to contain not less than
Twenty-four Cartridges suited to the Bore of his Musket or
Firelock, each Cartridge containing a proper Quantity of Powder and
Ball, two spare Flints, a Blanket and Knapsack; . . ."
The General Assembly of Virginia, October, 1785, (12 Hening's
Statutes) 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
Page 307 U. S. 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."
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 seems to afford any material support for the challenged
ruling of the court below.
In the margin, some of the more important opinions and comments
by writers are cited. [
Footnote
3]
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.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this cause.
[
Footnote 1]
Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C. §
1132.
"That for the purposes of this Act --"
"(a) The term 'firearm' means a shotgun or rifle having a barrel
of less than eighteen 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 [The Act of April 10, 1936, c. 169, 49 Stat.
1192 added the words], but does not include any rifle which is
within the foregoing provisions solely by reason of the length of
its barrel if the caliber of such rifle is .22 or smaller and if
its barrel is sixteen inches or more in length."
"Sec. 3. (a) There shall be levied, collected, and paid upon
firearms transferred in the continental United States a tax at the
rate of $200 for each firearm, such tax to be paid by the
transferor, and to be represented by appropriate stamps to be
provided by the Commissioner, with the approval of the Secretary,
and the stamps herein provided shall be affixed to the order for
such firearm, hereinafter provided for. The tax imposed by this
section shall be in addition to any import duty imposed on such
firearm."
"Sec. 4. (a) It shall be unlawful for any person to transfer a
firearm except in pursuance of a written order from the person
seeking to obtain such article, on an application form issued in
blank in duplicate for that purpose by the Commissioner. Such order
shall identify the applicant by such means of identification as may
be prescribed by regulations under this Act:
Provided,
That, if the applicant is an individual, such identification shall
include fingerprints and a photograph thereof."
"(c) Every person so transferring a firearm shall set forth in
each copy of such order the manufacturer's number or other mark
identifying such firearm, and shall forward a copy of such order to
the Commissioner. The original thereof, with stamps affixed, shall
be returned to the applicant."
"(d) No person shall transfer a firearm which has previously
been transferred on or after the effective date of this Act, unless
such person, in addition to complying with subsection (c),
transfers therewith the stamp-affixed order provided for in this
section for each such prior transfer, in compliance with such
regulations as may be prescribed under this Act for proof of
payment of all taxes on such firearms."
"Sec. 5. (a) Within sixty days after the effective date of this
Act every person possessing a firearm shall register, with the
collector of the district in which he resides, the number or other
mark identifying such firearm, together with his name, address,
place where such firearm is usually kept, and place of business or
employment, and, if such person is other than a natural person, the
name and home address of an executive officer thereof:
Provided, That no person shall be required to register
under this section with respect to any firearm acquired after the
effective date of, and in conformity with the provisions of, this
Act."
"Sec. 6. It shall be unlawful for any person to receive or
possess any firearm which has at any time been transferred in
violation of section 3 or 4 of this Act."
"Sec. 11. 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."
"Sec. 12. The Commissioner, with the approval of the Secretary,
shall prescribe such rules and regulations as may be necessary for
carrying the provisions of this Act into effect."
"Sec. 14. Any person who violates or fails to comply with any of
the requirements of this Act shall, upon conviction, be fined not
more than $2,000 or be imprisoned for not more than five years, or
both, in the discretion of the court."
"Sec. 16. If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the
remainder of the Act, and the application of such provision to
other persons or circumstances, shall not be affected thereby."
"Sec. 18. This Act may be cited as the 'National Firearms
Act.'"
[
Footnote 2]
Act December 17, 1914, c. 1, 38 Stat. 785; February 24, 1919, c.
18, 40 Stat. 1057.
[
Footnote 3]
Concerning The Militia --
Presser v. Illinois,
116 U. S. 252;
Robertson v. Baldwin, 165 U. S. 275;
Fife v. State, 31 Ark. 455;
Jeffers v. Fair, 33
Ga. 347;
Salina v. Blaksley, 72 Kan. 230; 83 P. 619;
People v. Brown, 253 Mich. 537; 235 N.W. 245;
Aymette
v. State, 2 Humphr. (Tenn.) 154;
State v. Duke, 42
Texas 455;
State v. Workman, 35 W.Va. 367; 14 S.E. 9;
Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on The
Constitution, 5th Ed., Vol. 2, p. 646; Encyclopaedia of the Social
Sciences, Vol. X, p. 471, 474.