Congress is again considering an “assault weapons ban.” The call is for compromise, reasonable restrictions and common sense gun control. I could go on a lengthy diatribe that was comprehensive in nature regarding the proposed legislation, but others have already responded thoroughly.
Owing to the nature of this blog, I will instead offer a perspective taken from previous court opinions that may be relevant to the proposal.
Our journey begins with the National Firearms Act (NFA) of 1934. The law imposed a tax on machine guns, short barreled rifles and shotguns, sound suppression devices and other destructive devices.
The NFA was challenged before the Supreme Court in 1939. Jack Miller and Frank Layton had transported a double barrel shotgun with a barrel length less than 18 inches from Oklahoma to Arkansas. The firearm was not registered nor was there a tax stamp affixed order for the gun as defined by the NFA. The District Court struck down the NFA on Second Amendment grounds. On hearing the case (United States v. Miller) the Supreme Court overturned the lower court and held the NFA to not violate the Second Amendment.
The primary reasoning of the Court was that automatic weapons and short-barreled weapons bore no relation to the needs of the common infantryman at the time.
From the ruling:
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.
Further, the Court found “that the Militia comprised all males physically capable of acting in concert for the common defense… 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.”
In subsequent references to Miller (of which there are seven), the Court has repeatedly held this basic principle. The Second Amendment protects the right of the people to possess those guns that would be used by infantryman to defend our freedom.
There have been challenges to the nature of the right Miller defined. United States v. Warin and United States v. Oakes are most prominent. The Court’s rulings had painted a picture where the Second Amendment was meaningless. Under the rulings of Miller, Warin and to notes in Oakes, the Court protected neither a right to keep arms for personal defense nor a right to keep arms to be used in a citizen militia. I am hard pressed to understand what exactly the Second Amendment was protecting in the years leading up to 2008.
In 2008 the Second Amendment received its first direct review since Miller. District of Columbia v. Heller challenged the District of Columbia’s handgun ban. The Supreme Court held that the Second Amendment protects an individual right to guns for self defense within the home and within federal enclaves.
Heller, however, left the question of incorporation open. This was settled two years later in McDonald v. City of Chicago when the Court extended the individual right to all citizens of the United States via the Due Process clause. The ruling struck down the Chicago gun ban and cleared the confusion regarding Heller’s application to the states.
Taken together, we see that the court has held that the Second Amendment protects an individual right (Heller) of all citizens (McDonald) to guns relevant to self defense (Heller) or guns that bear a relation to individual service in the militia at a given time (Miller).
At the time of Miller, the official primary infantry arm was the United States Rifle, Cal. 30 M1, commonly known as the M1 Garand. This gun had an 8 round magazine and was a gas operated semi-automatic action. That is, for each time the trigger is depressed, one round (shot) is fired. While officially adopted in 1936, it was not fully deployed until 1941. Many soldiers at the time of Miller were still issued the 1903 Springfield bolt-action rifle. Both of these guns sported barrels in excess of 22″ of length.
Today, the modern infantryman is equipped with M4, which is a derivative
of the M16/AR-15 line of guns. The M4 is a carbine with an overall length of 33 inches and a barrel length of 14.5 inches.Â The stock is adjustable for length, it is issued with a 30 round detachable box magazine and a flash hider. The gun has three fire control modes: safe, semi-automatic and 3-round burst. The M4A1 which is issued to certain squads has a different trigger pack: safe, semi-automatic and fully automatic. In addition, in a ten-man squad, you will see two men equipped with M249 Squad Automatic Weapons System, a light machine gun. General officers, medics, and other non-combat personnel in a combat zone are issued a Beretta M9, a high-capacity 9mm semi-automatic handgun for personal defense.
If the description modern infantry guns sounds familiar, it should. They are the very weapons at the top of the list that certain members of congress want to ban. But, they are also the very guns called out by the philosophy of Miller, as protected by the Second Amendment.
- US vs Miller – Court battle where US Argued 2nd Amend Protects “Military Style Weapons” (gunmartblog.com)
- Illinois’ Ban on Carrying Weapons Overturned; The Second Amendment Applies in Public (reason.com)