The Supreme Court Already Said “Assault Weapons” Are Protected

Some words from a second amendment activist and law STUDENT (key word is “student”; I am NOT an attorney). Forgive the length, but hopefully appreciate the education because this case has never been overturned and currently the common law of the land.

Richmond Democrats will begin the process of dismantling the second amendment and Article I, Section 13 of the Virginia Constitution by passing what I call “ban everything” legislation. The legislation will make the number one hunting and self-defense rifle (and many others) “illegal.”
However, the Supreme Court has already ruled on these weapons and determined they were specifically protected. In United States v Miller, 307 U.S. 174 (1939), the Supreme Court heard a case challenging the National Firearms Act, 26 U.S.C.S. § 1132. In this case, the defendants, Jack Miller and Frank Layton, were arrested for possession of a double-barreled shotgun with a barrel less than 18 inches in length (a short-barreled shotgun). The defendants claimed that the law violated the 2nd amendment and the district court agreed, throwing out the case. However, the feds appealed to the Supreme Court.

The court made several statements that are important to today’s fight. First of all, the court reiterated what and who is meant by the first clause of the 2nd amendment – “a well-regulated militia.” The court affirmed that the militia is comprised all males physically capable of acting in concert for the common defense. “In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.” Miller, 307 U.S. at 179 (quoting Adam Smith’s Wealth of Nations, Book V, Ch. 1).
The Virginia Constitution is even more clear than the 2nd Amendment. Article I, Section 13, defines the militia as “composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.” It doesn’t say “some people” or “military people.” It says the “body” of the people. You and me. If the second amendment only applied to the military, as those on the left suggest, then it would have been redundant. Article I, Section 8, Clause 16 of the US Consitution already gives Congress the authority to “provide for organizing, arming, and disciplining, the Militia.” If Congress already had the authority under Article I to arm the militia, the second amendment would have been unnecessary to give the militia the right to keep and bear arms. The Constitution already provided that.

However, the second amendment isn’t just about the militia. There are two clauses: the right to form a well-regulated militia AND the right of the people to keep and bear arms. So, now we get to the question of which arms are the people entitled to keep and bear. The Miller court answered that question.

The General Assembly of Virginia, October, 1785, (12 Hening’s Statutes) declared, “The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.” The CITIZENS, not the military! However, the court also noted that it is our responsibility to be proficient in the use of arms in defense of ourselves and our state.

Ultimately, the feds won their appeal and the case was sent back to trial. But, why, CJ? Here is where we get the answer as to exactly what is protected by the Second Amendment (thank you for being patient). The defendants, as I noted at the beginning, were charged with possession of short-barreled shotguns (sawed-off shotguns) in violation of federal law. The court determined that their shotguns were not protected because they were not “any part of the ordinary military equipment or that its use could contribute to the common defense.” Miller, 307 U.S. at 178.

In 1939, the short-barreled shotgun was not a part of the military compliment of arms. The court reasoned that because the military didn’t employ such short-barreled weapons in its common inventory, that they were not necessary for the common defense. The specific right that the court acknowledged were those arms that were “ordinary military equipment.”
As we all know, the main military rifles used in the United States military was the Enfield, Springfield, M14, and M1 Garand Rifles. The 1911 pistol was also “ordinary military equipment.” In 1966, the US military began issuing the M16 (which was based off the Armalite AR-15). Since 1966, the M16 and its M4 successor have been the “ordinary military equipment” of the US military. Since 1966, the AR-15 has been specifically protected under the Second Amendment as “necessary for the common defense.”

I would argue that the Miller court decision also protects short-bareled rifles and shotguns today. During WWI, the US military was the only military that issued a combat shotgun, a modified Winchester Model 1897, known officially as the Model 1917 Trench Shotgun. However, the Model 1917 wasn’t a short-barreled shotgun. Today, the US Army employs the Mossberg Model 590A1 shotgun, which has a 14″ barrel. Every infantry squad and other units have these assigned to every team. I would argue that today the Miller precedent would actually protect these firearms in a way that they weren’t protected in 1939 because they are now in “”ordinary military equipment.”

Let me finally add that when Democrats lose on the gun control agenda, they will no doubt shift to trying to regulate ammunition. The Miller court also recognized that ammunition is just as vital under the 2A as the firearms themselves. “The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.” Miller, 307 U.S. at 180 (quoting “The American Colonies In The 17th Century,” Osgood, Vol. 1, ch. XIII).

I hope you learned something! If not, at least I got a short break from studying.

Note: I am not giving legal advice. I am not an attorney. If you have legal questions, please contact an attorney.


2 Comments on “The Supreme Court Already Said “Assault Weapons” Are Protected

  1. I enjoyed the Article and I believe you to be correct in your reasoning on “Short barreled Shotguns” ! With by the way are as short as 10inches and the Second Amendment has a 2nd part to it staying that citizens should stock pile Ammo just for the same reason ! ??

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.