Posted on 02/23/2023 2:36:25 PM PST by marktwain
The FDR administration was looking for a test case to take to the Supreme Court, establishing federal regulation of firearms commerce as “constitutional.” Two months before the passage of the 1938 NFA, on 18 April 1938, two small-time criminals were arrested for “making preparation for armed robbery”, by Oklahoma and Arkansas state police. They had in their possession a short-barreled shotgun. They had traveled from Oklahoma to Arkansas. They were brought to Fort Smith, Arkansas.
One of them, Jackson “Jack” Miller, had been an informant and participant in a significant case involving the O’Malley gang. He was known to the U.S. Attorney for the Western District of Arkansas, Clinton R. Barry. Barry saw an opportunity for an NFA of 1934 test case. He wired the United States Attorney General on 23 April 1938, explaining the importance of acting quickly before the pair were released on bail.
Miller was also known to the federal judge who had presided over the O’Malley case, Heartsill Ragon. Judge Heartsill Ragon was the 1930s version of Chuck Schumer, a strong proponent of restrictive federal gun law. He helped push through the New Deal for FDR before being rewarded with a federal judgeship in Arkansas.
The NFA case was given to Judge Heartsill Ragon. He appointed the defense counsel. He refused to accept a guilty plea.
Judge Ragon had the case he wanted, the defendants he wanted, and the defense council he wanted. Judge Ragon then created the only defense for the case, it was his memorandum opinion.
On June 11, 1938 Miller and Layton demurred to the indictment, claiming that it presented insufficient evidence of a transfer requiring payment of a tax and challenging the constitutionality of the NFA under the Second and Tenth Amendments. Surprisingly, Ragon immediately issued a memorandum opinion sustaining the demurrer and quashing the indictment. He held that the NFA violates the Second Amendment by prohibiting the transportation of unregistered covered firearms in interstate commerce.
This position was diametrically opposite to his stated opinion while a legislator. It did not include any facts or analysis to support the proposition.
The FDR administration appealed the case directly to the Supreme Court. With only the government’s side of the case presented, the Court refused to strike down the law. The Miller decision was muddy and subject to interpretation.
The Letters of Marque and Reprisal section of the Constitution implies that privately owned major naval vessels are covered.
Given all that, it should be obvious for SCOTUS to strike down the NFA. Thanks for that post.
And artillery, much to Bidens chagrin.
This makes sense, because Heller only affirmed the Second Amendment protected more than just the ability to form militias from an armed citizenry, but also all the other rights protected by the Second Amendment, such as the right to have arms in case of confrontations.
How far the Second Amendment protects the right to military arms is not absolutely clear. Certainly it protects the right to individual weapons and their accessories.
But if states were forbidden to keep their own navies in peacetime, it is hard to see an individual right to an armed warship. Article I, Section 10:
“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.”
Interesting history lesson, thanks for sharing.
Makes sense. I see it as protecting arms that a typical soldier would carry and use.
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