Depending on who you ask, the Second Amendment is either an anachronism from a time when most gun owners were farmers with muskets, or a clause that safeguards my right to walk into a Pizza Hut with an AK-47. Both pro and anti-gun activists are so far apart on this issue, there’s only one thing they’re both agreed on: the Constitution and subsequent Supreme Court rulings on the subject back up their position.

In the current “is the dress white and gold or black and blue” debate over the Second Amendment, the case of US v Miller is noted as one of the more important rulings on the subject. Given both sides predictably agree this case exists in a quantum state of being simultaneously both pro and anti-gun control, I invited Brian Frye, Associate Professor at the University of Kentucky’s School of Law to join me on the latest edition of You Don’t Have to Yell (recording below) to explain exactly what US v Miller says about our right to bear arms.

The bad news: it doesn’t say anything. The even worse news: neither does the Constitution.


The Case

The case of US v Miller involved two men who were caught with sawed off shotguns and arrested in violation of the National Firearms Act - a law that places a prohibitively high tax on certain kinds of weapons that’s still in effect today. (Fun fact: you can still own that AK-47 for a modest fee of $200 per rifle and an additional $200 per round of ammunition.)

At the time the law was written in 1934, the parts that could be viewed as an infringement on the Second Amendment weren’t all that controversial. With the rise of organized crime in the 20s, people were actually OK with laws that kept guns commonly used in crime out of the hands of criminals.

Novel concept.

What was more controversial was how this law played into a larger expansion of federal regulatory authority under FDR, as the law effectively gave the federal government the power to regulate interstate commerce via taxation. This power hadn’t been proven out in the courts yet, and this case offered a way to do so. 


OK - I’m lost. What about the guns?

The only reason US v Miller is considered a Second Amendment ruling is because the judge presiding over the original case in US District Court who, probably totally coincidentally, was appointed by FDR, rejected a guilty plea by the defendant and ruled the NFA was in violation of the Constitution. This, much to the chagrin of the defendant, guaranteed the case to be tried in the Supreme Court and the federal government’s regulatory authority be put to the test.

The Second Amendment was merely a pretense to get this case brought before the highest court in the land.

(At this point, it’s worth noting neither Miller nor his attorney showed up to any subsequent proceedings)

In the opinion, Justice James Clark McReynolds sided with the federal government’s right to tax interstate commerce, and also wrote the National Firearms Act didn’t violate the Second Amendment as sawed off shotguns weren’t used in warfare. 

So - to sum things up - the government wanted to prove out the authority of Congress to regulate interstate commerce so it appealed the case of someone who probably would have been happy with a jail sentence all the way to the Supreme Court to rule that the only weapons people should own are the kinds used in warfare.

Effectively, under this interpretation, you’re better off owning a rocket propelled grenade than a hunting rifle.


Wait. What?


The only reason you can’t own that RPG is because a subsequent act of Congress prohibits weapons classified as “destructive devices”. Despite contradicting what the Supreme Court said about weapons in US v Miller, this law has never been challenged in court, most likely because everyone feels this would be universally stupid.

I guess we can agree on some things. 

What US v Miller says about the Constitution and the Second Amendment, more than anything, is that the courts are another channel for exerting political will, and the Constitution is more of a safeguard to ensure government control can’t be extended without some level of discussion. If you look at the Supreme Court rulings now cited as Second Amendment cases that precede US v Miller, you’ll see a similar trend of the Amendment being used for the purposes of reaching a much different political goal far more relevant to the time.

The only reason any of these cases are cited as rulings on the Second Amendment, is because gun control is an important and controversial subject now. We’re trying to reach a conclusion as to where the rights of those living in dense, urban areas with high levels of gun violence outweigh the rights of those who live in  rural parts of the country where it can take an hour for the police to arrive and where you have the legitimate threat of bears.

I’m 100% not joking about the bear part. I've been to Montana.

It’s a worthwhile conversation to have, and not one that’s going to be resolved by debating what a bunch of people in the 1700’s meant by "a well regulated militia".

Also - for what it’s worth - the dress is white and gold. I don’t care what the internet says.