Public Document Case heading, cropped and scaled by Dean Weingarten Posted on 08/27/2022 7:03:22 AM PDT by marktwain
Public Document Case heading, cropped and scaled by Dean Weingarten
U.S.A. –-(Ammoland.com)- Many Second Amendment supporters have heard of the National Firearms Act (NFA) of 1934. It went into effect on 26 June 1934. It was the first national gun law to have a substantially limiting effect. It was the first federal statute challenged in the Supreme Court based on the Second Amendment in United States v. Miller. The story of that challenge may be read, in short form, on an AmmoLand News article from 2013.
Far fewer people are familiar with the National Firearms Act of 1938. The NFA of 1934 was passed in Franklin Delano Roosevelt’s (FDR) first term. It is believed that the case that challenged it was set up in 1938 to curb resistance to the National Firearms Act of 1938, passed in FDR’s second term.
The infamous National Firearms Act of 1934 required commercial manufacturers to stamp serial numbers on machine guns, silencers, short-barreled rifles, and short-barreled shotguns manufactured from that date on.
A rare Welrod Mark II Clandestine Pistol with Integral Silencer, 1938
Few people worried about the law because it only affected items that crossed state lines. Few people owned machine guns or silencers; few crossed state lines with them or short-barreled rifles or shotguns. Because of concerns about constitutionality, the NFA of 1934 was a gun ban disguised as a tax. The transfer tax of $200 was equivalent to about $3,800 in 2018. It was prohibitive for all but the very well-off. Consequently, it raised very little money.
Attorney General: Homer Stillé Cummings
The original target of the NFA of 1934 was to register and regulate the ownership of all handguns. Short barreled rifles and shotguns were included to prevent circumventing the regulation of handguns by cutting down rifles and shotguns. The National Rifle Association (NRA) successfully stripped handguns from the bill. Because silencers, machine guns, short-barreled rifles, and shotguns were less commonly owned, the NRA did not contest that part of the law.
The progressives in the Roosevelt administration, especially Attorney General Homer Cummings, wanted to register all pistols and regulate all pistol sales. The attempt to do so in the 1934 NFA had failed. Another trial balloon to do so was proposed by Cummings in 1936 but failed to make headway.
The National Firearms Act of 1938 was different.
It required federal licenses for commercial manufacture and sales of all firearms and parts involved in interstate commerce or inside federal territories that were not states. It was an incremental move toward federal control of all common firearms. Whether this was constitutional under the Second Amendment was disputed and debated.
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.
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.
Progressives used the Miller case to claim the Second Amendment did not protect an individual right. Progressive judges appointed by FDR and Truman came to dominate the federal appeals courts.
U.S. v. Miller was used to prevent challenges to the NFA of 1938. While Miller clearly implied that military arms were protected by the Second Amendment, FDR-appointed judges ruled it did not.
In Cases v. United States, 1942, a three-judge panel on the First Circuit ruled it was unlikely Miller meant military arms were protected by the Second Amendment: From Cases:
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.
All three judges on the First Circuit in Cases v. United States, John Mahoney, Calvert Magruder, and Peter Woodbury, were appointed by FDR.
The Supreme Court refused to hear another Second Amendment case until 2008.
The NFA of 1938 established the precedent that the federal government could regulate the interstate commerce of common, ordinary firearms and the sale of firearms in non-state territories. It established the precedent the federal government could create classes of people who were not allowed to purchase firearms across state lines. It established the notion of a federal license to sell or manufacture ordinary firearms commercially.
The NFA of 1938 was passed before the seminal Supreme Court decision of Wickard v. Filburn in 1942, when the nation was in the middle of World War II. Wickard is recognized as an inflection point at which virtually everything in the United States was considered to be affecting interstate commerce and thus subject to regulation by the federal government. Still, interstate commerce and the limitation on government power held meaning. In police training in the late 1970s, I was taught interstate commerce had to cross state lines; and that criminal statutes were part of state powers, while federal power was not concerned with local criminal acts.
While people were concerned with the NFA of 1938, dealer’s licenses were shall issue and only cost a dollar. Individuals who were not dealers could purchase firearms across state lines. In theory, all firearms parts were regulated. In practice, the regulation was minimal to non-existent.
No serial numbers were required except on machine guns, silencers, and short-barreled rifles and shotguns. Removing the manufacturer’s serial numbers was illegal, but manufacturers were not required to place serial numbers on most firearms.
The 1938 NFA did not require record-keeping or pre-approval of any sales or manufacture, except for machine guns, silencers, and short-barreled shotguns and rifles.
Mail Order Machine Guns Catalog
The FDR administration continued to float proposals for the registration of all firearms in the United States, but World War II intervened. AG Homer Cummings retired in January of 1939. No one was pushing for keeping Americans from having guns in the middle of a war. After the war was won, millions of rifles, pistols, and shotguns were purchased from powers all over the globe and sold to the American people at bargain prices. It was a golden age for firearms collectors, hunters, and shooters. Crime was low. Guns were available over the counter for cash and by mail order. If you wanted to purchase across state lines, from dealers, without hindrance, a Federal Firearms License (FFL) was easily obtained for a dollar. Many firearms enthusiasts obtained FFLs to ease firearms transactions.
Anti-tank cannon, anti-aircraft cannon, and their ammunition were advertised on the pages of the American Rifleman, and purchased by mail order. Only one crime was recorded where an anti-tank rifle was used. No one was injured.
The precedents of the 1934 NFA and 1938 NFA were the seeds of the infamous 1968 Gun Control Act (GCA). Again, the NRA mitigated the worst part of the bill and won a small reversal of earlier overreach.
It was argued that regulation of all firearms parts was burdensome and silly. There was no sense in regulating bolts, screws, and grips. A firearm was defined as the receiver that had the serial number. On handguns, the same part is called the frame. Except for the receiver or frame, firearms parts could be commercially manufactured and sold without a firearms manufacturer’s license. It was regarded as a commonsense approach.
Lyndon Johnson wanted full registration of all pistols. That provision was struck from the bill.
Significant new infringements were passed and became law with GCA 1968. All new firearms were required to have serial numbers. Federal dealers were required to record sales, personal information, make, model, and the newly required serial numbers. Individuals’ purchases of firearms across state lines, except through federal dealers, were made illegal. More firearms and weapons were placed under strict controls. More categories of persons were prohibited from buying from federal dealers.
The NFA of 1934, the NFA of 1938, and the GCA of 1968 are all points on the slippery slope of ever more infringements on Second Amendment rights. The Second Amendment as outdated and irrelevant, came with Progressive philosophy. Progressive philosophy holds the Constitution to be outdated and limits on government to be immoral.
President Trump appointed dozens of originalist and textualist judges. Originalist and textualist judges believe in enforcing the original intent of the Constitution. As such, they will likely remove many “living Constitution” constructs and restore limits to federal power.
The information is highly relevant with the Biden Administration shenanigans with the ATF at present.
A correction, some documents and this article refer to the 1938 law as the National Firarms Act of 1938. That is incorrect.
It is the Federal Firearms act of 1938.
Geez, it’s almost like the Miller case was misinterpreted from the beginning.
bttt
Amendment XXI repealed Amendment XVIII.
The 1934 NFA was passed after Amendment XVIII (which might have allowed it to be constitutional) was repealed.
There is an “Untouchables” episode about machine guns which concludes that only a small number were eventually left in the hands of organized crime.
The entire ediface of the Federal appelate Courts claiming the Second Amendment is not an individual right, is built on willful misreading of the Miller case.
Pure deliberate, willful, Bill of Rights destroying misreading.
Remember, Progressives have always hated the Constitution. It is in their DNA.
The courts were dominated by "Progressive" ideology judges for at least 70 years, from 1940 to 2008.
The Taliban never lacked for guns.
Thirty thousand Taliban sent the US military packing.
Whenever I first became aware of the Miller case and read a summary of it I thought “What a load of crap!”. But, I surely don’t have the money or time to take them to court. Hard to do when “they” have an unlimited amount of tax money to spend defending their lies.
If a frontier family didn’t have the ability to fight off Indians with guns, they would not have survived an Indian attack.
Well supplied by the Chinese, Iranians, and Pakistanis
Thirty thousand Taliban sent the US military packing.
Yes. Because the American people would not sanction the destruction of Taliban supporting villages.
The Biden Administration has indicated it is willing to nuke American cites to stay in power...
I would not worry about the outcome, if I thought the Average American were as tough as the Average Afghan.
I don't think Biden and his supporters have the cajones to use nukes. But they are sure trying to purge the military of anyone who might oppose them.
“We the people of the United States....the right of the people to keep and bear arms...”
The right to vote and “to keep and bear” are fundamentally related.
I agree.
The Hessians riled up the people of New Jersey.
Let us hope the FBI is “riling up” the American people.
Bkmk
“I don’t think Biden and his supporters have the cajones to use nukes.”...
I don’t think they’ll use nukes either but I am confident they will allow circumstances to develope that will make it easier for them or successors a term or 2 after them to begin a type of literal genocide against people they perceive are their enemies.
Yes, I think you have a grasp of the plan, or, at least, its shadowy image.
More likely Obiden will do a quid quo pro with China. They invade Taiwan, we lob a few and get rid of their Uighur ‘problem’ and they take out a few of our ‘untouchable’ targets.
Perhaps of interest.
Judicial efforts to undermine constitutionally protected freedoms should be a crime punished by death. The difference between treason and constitutional subterfuge is semantics only. The problem is that there is no downside for this type of behavior. The percentage of public servants in prison needs to go way up.
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