19 The Founding and Decades of Neglect

The general ineffectiveness of the Articles of Confederation—which did not permit the national legislature to fund or maintain a military—convinced many Framers that the new nation would need more effective armed forces, including a standing army. The Constitution thus explicitly granted Congress the power to raise and fund both an army and a navy.

This power, however, was anathema to many other members of the Founding generation, who were convinced that a standing army would be a constant danger to liberty, capable of being directed by would-be tyrants against the public. They instead preferred militias—volunteer bodies of citizens who would gather together to defend their homes as needed. Such militias, moreover, would be governed at the state level, standing as a defense against any potential federal tyranny.

Fear of a new national government supported by a standing army helped drive Anti-Federalist attacks on the new Constitution, particularly as the document also gave Congress the power to call up, organize, and arm state militias in times of need. Likely confident that an attempt by Congress to simply ban militias would lead to massive resistance, the Anti-Federalists instead worried about a subtler approach: that Congress could use its powers in the original Constitution to weaken militias by chronically underfunding and under-arming them, making them useless as a bulwark against potential national tyranny.

The Second Amendment—like the Bill of Rights more broadly—was born from Anti-Federalist concerns and the promises of the Federalists to address them in the First Congress. The text makes clear—if it makes clear little else—that there was now some degree of protection for militias in the constitution. Whether that protection was intended to be granted to the states as political units or individual gun owners, however, was less clear, and would be hotly debated when gun rights ultimately emerged as a salient political issue two hundred years later.

Like most other portions of the Bill of Rights, the Second Amendment was mainly absent in political debate during the first hundred years of the Republic. The country was mainly rural; then, as now, gun laws were deemed more necessary or desirable in urban areas than rural ones. Nevertheless, regulations of firearms were common enough, ranging from requirements to keep one’s arms maintained for potential militia service, to bans on carrying guns in public (particularly if one intended to enter a bar or store), to registration requirements. However, these were almost universally state laws, with challenges offered up under state constitutions. Neither Congress nor the federal Constitution played much of a role.

Nor did the Second Amendment play much of a role in most of the 20^th century. The distrust of standing armies faded away as the United States took on an increasingly powerful role in global affairs. The nation could now look to its national military forces for defense, as well as for protecting American interests abroad or projecting national power. At the same, militias as understood by the Founding generation had fallen into disuse. In 1903, Congress passed the Militia Act and authorized states to instead create National Guard entities, which had more in common with reserve forces in a standing army than traditional volunteer militias (later amendments to the law would allow National Guard units to serve overseas when needed).

The Second Amendment was also among the few sections of the Bill of Rights to miss both the first and second waves of incorporation. It was not incorporated for at least two reasons. First, there was little to no Second Amendment jurisprudence to speak of. Compared to issues of free speech, religion, or criminal procedure, disputes over gun rights and regulations were simply less important to the courts or the public. Second, it wasn’t clear—at least at this point—that the Second Amendment even created an individual right at all. If the Second Amendment was a guarantee to states that Congress could not abolish or underfund their militias, it made little sense to apply that guarantee against the states themselves.

An example of the lesser importance of the Second Amendment during this time period can be seen in the first time the Court addressed the Amendment, in United States v. Miller (1939). Miller addressed the appeal to a conviction under the 1934 National Firearms Act, a law passed in response to Prohibition-era gun and gang violence. The law mandated registration and taxation for certain types of firearms, such as fully automatic weapons or short-barreled rifles and shotguns (with the intent of making it more difficult to own such weapons).

Miller and his partner Layton—both career criminals—were charged with violating the act, having transported unregistered guns (in this case sawed-off shotguns) across state lines. The case then took an unusual turn. The trial judge—a known proponent of the National Firearms Act—struck down the law as a violation of the Second Amendment. He almost certainly did so with the purpose of having his own ruling struck down on appeal, creating a precedent that would support the law against any other future challenges. There are two key points of evidence in favor of this theory. First, the judge’s opinion justifying striking down the law was threadbare in its legal logic, making a reversal likely. Second, the judge knew that Miller—who was scheduled to testify as a government witness in an unrelated bank robbery case—would thereafter go into hiding and be extremely unlikely to appear at his appeal, meaning the government could present its legal arguments unopposed.

The appeal played out more or less as the trial judge had hoped. The Court heard from the government but no one was on hand to represent Miller (who was found dead not long after oral arguments). The Court unanimously ruled that the National Firearms Act did not violate the Second Amendment, and Justice McReynolds—perhaps unmotivated to write a more searching argument—crafted a terse opinion that would later be cited by all sides of the current gun debate.

United States v. Miller

307 U.S. 174 (1939)

Facts: In response to Prohibition-era violence, Congress passed the 1934 National Firearms Act, which required registration of and taxation on certain types of firearms, such as fully automatic weapons and short-barreled rifles and shotguns. Miller and Layton were charged for transporting unregistered shotguns across state lines.

At trial—and almost certainly as part of a test case to entice the Supreme Court to uphold the law—the trial court judge struck down the NFA as a violation of the Second Amendment. He did so knowing that Miller—who had testified against as a government witness in a different case—would go into hiding after trial, meaning there would be no one to offer legal arguments against the government on appeal.

Question: Did Miller’s charge under the National Firearms Act violate the Second Amendment

Vote: No 8-0

For the Court: Justice McReynolds

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 … a double-barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length … and not having in their possession a stamp-affixed written order for said firearm as provided by United States Code…”

A duly interposed demurrer alleged [that] the National Firearms Act 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.”

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.

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…

… 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 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…

[McReynolds then notes some colonial statutes dealing with militias]

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…

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.

Miller would almost certainly have vanished into legal history had it not been the only Supreme Court case to squarely address the constitutionality of a firearms regulation under the Second Amendment. Since it was the only such case, however, scholars and pundits would later parse its unwieldy legal argument: that short-barreled shotguns could be regulated without violating the Second Amendment because the guns had “no reasonable relationship” to the preservation of a militia.