The U.S. v Miller, revisited
Key Points
♦ Jack Miller and Frank Layton were indicted for taking an unregistered short-barreled shotgun across state lines, allegedly in violation of the National Firearms Arm of 1934 (NFA ’34)
♦ the defendants argued that NFA ’34 violated the Second Amendment
♦ the District Court: ~
◊ held that NFA ’34 was unconstitutional
◊ did not ask the defendants to justify their views in detail
◊ record thus contained no explanation of the defendants’ views
♦ the government asked the Supreme Court to review the District Court decision
♦ the Supreme Court:
◊ never read or heard the defendants’ views, because they were not represented in any form
◊ heard only one side of the matter, the government’s side
◊ did not accept most of the government’s arguments
◊ based its conclusion on a small part of the government’s argument
◊ declared that a short-barreled shotgun was not a "militia" or "military-type" firearm, at the time the Second Amendment was written (late 1700s)
♦ a brief for Miller and Layton might have argued that:
◊ short-barreled and sawed-off shotguns were military weapons, having been usedby both sides in the Civil War
◊ shotguns were widely used by U.S. forces in World War I
◊ the Supreme Court in 1856 implicitly reaffirmed the law-abiding person’s civil right to be armed, when it declared that the government, in the form of a sheriff, had no duty to protect the average person
♦ because Miller and Layton were not represented before it, the Supreme Court:
◊ heard no such evidence or arguments
◊ recognized it had heard only one side of the matter
◊ carefully limited its decision in scope and duration
♦ U.S. courts must rule on the evidence actually presented
♦ Everything must be proved, except very obvious facts
♦ in deciding U.S. v. Miller the Court only declared that ownership of a firearm could be restricted if, and only if, it had no connection to military or militia activity
♦ U.S. v. Miller strongly suggests that bans on military-type firearms, ammunition, and magazines are unconstitutional, as these devices plainly are central to the militia/military
♦ the strongest challenge to U.S. v. Miller rests on the Supreme Court’s having implied that the law-abiding person has a civil right to be armed, when it held in 1856 that the government had no duty to protect the average person.
Introduction
Only once in the Twentieth Century has the U.S. Supreme Court interpreted any part of the Second Amendment. That case was U.S. v. Miller, which the Court heard and decided in 1939. 1 The Court held that the National Firearms Act – under which machineguns, shotguns with barrels under 18" in length, short-barreled rifles, and firearms silencers had to be registered and a $200/item tax paid was constitutional.
Few who discuss this decision have actually read it, and so know that the Court heard only one side of the matter, the Government’s. Fewer still have read the entire record, and so know that the Court rejected most of the Government’s claims about the Second Amendment. In keeping with our pledge to give you all of the facts, we set forth below not just the facts in the record, but facts that might have moved the Court to decide differently, had anyone represented Miller before the Court.
The Facts
The indictment alleged that on 18 April 1938, Jack Miller and Frank Layton transported a double-barreled 12 gauge shotgun – with barrels shorter than 18" – between Claremont, Oklahoma and Siloam Springs, Arkansas. Said shotgun had not been registered pursuant to Section 1132c of Title 26 United States Code (National Firearms Act, 48 Stat. 1237). Neither Miller nor Layton had, "in their possession astamped-affixed written order for said firearm as provided by Section 1132c … " 2
District Court Proceedings
Miller and Layton were represented by Paul E. Gutensohn, of Ft. Smith, Arkansas. Gutensohn, who had been a member of the Arkansas bar since February 1934, apparently was a solo practitioner. He became a Federal prosecutor after military service in World War II.
Gutensohn asked the District Court to quash the indictment. Gutensohn declared that his clients had committed no crime because the National Firearms Act, "is not a revenue measure and is an attempt to usurp the police powers of the State and reserved to each of the States in the United States, [and – auths.] is unconstitutional … " After quoting the text of the Second Amendment, Gutensohn declared that, "said ’National Firearms Act’ is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendantsunder the allegations of the indictment, is unconstitutional...."
The District Court Judge, Heartsill Ragon, on 3 January 1939 declared that:
The Court is of the opinion that this section is invalid in that it violated the Second Amendment to the Constitution of the United States providing, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The demurrer is accordingly sustained." 4
In short, Judge Ragon found no basis to uphold the indictment of Miller and Layton, i.e., that they had committed no crime when they transported a short-barreled shotgun across state lines, because provisions of NFA ’34 violated the Second Amendment.
On 30 January 1939, the government declared it would appeal this decision to the Supreme Court, because, "the Court committed material error against the plaintiff [the government – auths.] in holding that Section 11 of the National Firearms Act of June 26, 1934 ... is invalid as violating the Second Amendment to the Constitution of the United States..." 5 The law then provided for direct appeals to the Supreme Court of decisions in criminal cases, in which a matter of constitutionality had been directly raised. 6
In explaining to the Supreme Court the grounds for its appeal, the government — in the persons of Robert H. Jackson, Solicitor General, and Clinton R. Barry, U.S. Attorney for the Western District of Arkansas — declared that:
"the question decided by the District Court is a substantial and important one and has not hitherto been settled by a decision of the Supreme Court of the United States. It is contrary to the decision in United Statesv. Adams, 11 F. Supp. 216 (S.D. Fla) and it is believed also to be in conflict with the principles enumerated in the decision of the Supreme Court of the United States in Sonzinsky v. United States, 300 U.S.506." 7
On the same day, Paul Gutensohn received – on behalf of Miller and Layton – notice from the government that it intended to appeal to the Supreme Court. Judge Ragon permitted the appeal. 8 Miller and Layton had 15 days to object to the appeal. 9 There is no record of their having offered any objections. 10 Because Miller and Layton did not have legal representation after the District Court proceedings, the Supreme Court never heard their views. There is only one brief on record in this case, that filed for the United States. Attorney Gutensohn only represented Miller and Layton in District Court. If he explained to District Judge Ragon the reasoning for his clients’ challenge to the indictment, no record was made and kept. As a result, the Supreme Court did not have before it any argumentssupporting Miller and Layton.
There were no amicus curiae (friend of the Court) briefs, filed by parties with an interest in the outcome, e.g., the National Rifle Association. Such briefs can provide the Court with additional insights into the matter before it. Prior to World War II, the filing of an amicus brief was most unusual.
The case attracted little attention. The New York Times devoted just seven lines to it, at the end of a summary of Supreme Court actions. While stating that a shotgun was involved, no mention was made that it had a barrel less than 18" in length. 11
The Government’s Brief for the Supreme Court
Robert Jackson led a six-man team which prepared the government’s brief. It covered 21 pages, and may be divided into four parts of about equal length. The first quarter of the brief summarized the indictment and the District Court decision which had prompted the government to appeal to the Supreme Court. 12 In the second quarter of his brief, Jackson:
♦ argued that the National Firearms Act applied only to a narrow group of firearms and did not even ban them, but simply imposed limits on their possession. 13
♦ asserted that the Second Amendment did not "guarantee to the criminal the right to maintain and utilise arms which are particularly adaptable to his purpose." 14
♦ declared that the Second Amendment recognized the prior existence of a right to keep and bear arms rather than establishing any new right – and barred its infringement by Congress. 15
The key to the government’s case—that the Second Amendment provided only a very narrow right to keep and bear arms — is found in the third quarter of the brief. 16 Jackson argued that the Second Amendment was rooted in English Common Law, which law:
♦ strictly limited the right to keep and to bear arms; 17
♦ allowed the people to take up arms in self-defense against "tyrannical and unprincipled rulers". 18
♦ "did not permit the keeping of arms for purposes of private defense." 19
♦ "only allowed persons of a certain rank to have arms, and consequently this declaration of right had reference to such [persons – auths.] only." 20
♦ along with the Federal and State Constitutions recognized the right to keep and bear arms in connection with the maintenance of an effective militia, "as contrasted with a standing army which might possibly be used to oppress..." 21
As a result, Jackson concluded that the right to keep and bear arms, "is not one which may be utilized for private purposes but only ... for the protection of the state." 22
In the last quarter of his brief, Jackson explained that even when Courts had held that individuals could bear arms for personal protection, "the term ’arms’ as used in constitutional provisions refers only to those weapons which are ordinarilyused for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. 23 Thus, "Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimateuse in the hands of private individuals. On the contrary they ... are not weapons of the character which are recognized by the common opinion of good citizens as proper for defence. 24
In support of this conclusion, Jackson quoted from a Report of the House Ways and Means Committee
"The growing frequency of crimes of violence in which people are killed or injured by the use of dangerous weapons needs no comment. The gangster as a law violator must be deprived of his most dangerous weapon, the machine gun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machine guns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting.arms. But while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a machine gun or sawed-off shotgun. 25
How an Attorney for Miller Might Have Replied
The Ownership of Firearms
Formally limiting the government’s powers was the main goal of the American Revolution. That goal had been achieved only by the use of armed force. It is plainly absurd to argue that the Framers intended directly – or indirectly by creating a foundation on which some later law-makers might build – to provide for an actual or potential government monopoly on the use of armed force or on the ownership of arms themselves.
When they wrote the Second Amendment to the U.S. Constitution, they adhered closely to English Common law, which provided that arms could be owned and carried for self defense, so long as the intent of these actions was not to terrorize others. The type of arms that could be owned or carried for self-defense could be regulated by law, but bans on the ownership or keeping of arms were unlawful.
That each person is responsible for his own defense against criminals has long been the law in the United States. The U.S. Supreme Court implied this in 1856, when it decided South v. Maryland, and held that a sheriff did not have aduty to protect an ordinary person, but only had a duty generally to uphold the Law. 27 The Court indirectly re-affirmed Americans’ private and personal right to keep and to bear arms for self-defense purposes. More recently, a U.S.Appellate Court reaffirmed that the government has no duty to protect the average person. 28
In 1939 the Supreme Court was not asked to recognize that Americans never have had a right to protection by the government, and so have a right to keep and bear arms for self-defense. Because the average person’s right to self-defense – and to the possession of firearms for that purpose – has not been explicitly recognized,criminals’ abuse of firearms has been used to justify sharp curtailments of law-abiding persons’ civil right to be armed. Laws concerning the ownership of firearms for personal defense need to be adjusted to recognize that South v. Maryland implicitly re-affirmed Americans’ right to own firearms for personal defense. As a result, criminals’ abuse of firearms cannot lawfully be a pretext to deprive the law-abiding of those firearms.
The Shotgun as a Military Weapon
There is irrefutable proof that the shotgun has long been a military weapon in Europe and the United States. 29 For example, the forerunner of the shotgun – the blunderbuss – was issued to British forces prior to the Revolutionary War. The British issued a Sea Service flintlock blunderbuss with a 16-inch brass barrel, circa 1760. 30 During the Civil War, both Union and Confederate governments issued - or permitted the use of privately-owned – shotguns and rifles, some of which definitely had barrels shorter than 18". Because the Confederacy had relatively fewfirearms-makers, weapons were scarce. As a result, "many southern volunteers equippedthemselves with their personal or family double-barrel shotgun". 31 Among Confederate forces short-barreled shotguns were common.
"The degree to which barrels were amputated depended upon the whim of the cavalryman, or was dictated by battle damage sustained by the gun. Thin gun barrels were often dented or bent. Since weapons were scarce, the damaged portion was simply cut-off to restore the gun to action. This resulted in the discovery that shortened guns were more controllable while mounted; therefore, they were better suited for fighting purposes." 32 (See photos).
![[shotgun 1]](/images02/miller-shotgun1.jpg)
![[shotgun 2]](/images02/miller-shotgun2.jpg)
In 1861, the Federal government purchased 10,000 Austrian-made carbines (KammerKarabiner, Model 1842). This muzzle-loading .71 caliber firearm resembled a shotgun: it had a 14.5" rifled barrel and no bayonet. It was issued to The Second Regiment of the Wisconsin Volunteer Cavalry (also known as the Washburn Cavalry), and likely was issued to other units. 33 The government issued three typesof ammunition for this carbine: buckshot and ball combined, ordinary buckshot, and round balls (see illustration below). Two of these three were specially suited for use in shotguns. Most of the ammunition actually purchased was of the buckshot, or buckshot-and-ball type. 34
![[shotgun ammo]](/images02/miller-ammo.jpg)
Shotguns became standard issue U.S. Army weapons during the Moro rebellion in thePhilippine Islands, during the first decade of the 1900s. 35 In World War I, shotguns definitely were widely used by U.S. troops:
"When American troops were in the heat of the fighting in the summer of 1918, the German government sent a protest through a neutral agency to our Government asserting that our men were using shotguns against German troops in the trenches. The allegation was true; but our State Department replied that the use of such weapons was not forbidden by the Geneva Convention as the Germans had asserted.Manufactured primarily for the purpose of arming guards placed over German prisoners,these shotguns were undoubtedly in some instances carried into the actual fighting. The Ordnance Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers. The shell provided for these guns each contained a charge of nine heavy buckshot, a combination likely to have murderous effect in close fighting." 36
The most common military shotguns of World War I – officially known as "Trench guns" – were made by Winchester, Models 97 and 12. Both were chambered for the 2 3/4" 12 gauge shell, had a pump action, 20" barrel, and a five-round tube magazine (a sixth round could be carried in the chamber). "Issued to AEF [Allied Expeditionary Force - auths.] soldiers with paper-hulled 00 buckshot loads holding nine pellets, the 97 could put 54 .33 caliber projectiles down-range in a matter of seconds, simply by having its trigger held back and the slide worked...." 37
Shotguns plainly had been military issue firearms for at least 30 years before the Supreme Court reviewed Judge Ragon’s decision to quash Miller’s indictment. Many veterans of World War I were alive. Some Justices may have known that the U.S. Army had issued shotguns to its soldiers during World War I, even though no such evidence was put before the Court to prove the matter. Two of the Court’s members had seen military service, Justice Hugo Black as a Captain in the Field Artillery in 1918 andJustice Felix Frankfurter as a Major in the Army’s Legal service. Justice William O.Douglas, who did not take part in the decision, had been a private in the U.S. Army in 1918.
The Court’s Decision
The Court’s decision of 15 May 1939 was unanimous. However, Justice Douglas recused himself, most likely because he was appointed to the Court on 4 April 1939, and so had not heard oral arguments on 30 March. Justice James Clark McReynolds delivered the six-page decision. The first third contained:
♦ almost the entire text of the indictment; 38
♦ the full text of the National Firearms Act; 39
♦ the claims by Miller and Layton to Judge Ragon that NFA ’34 was unconstitutional, i.e., it
◊ attempted to usurp police power reserved to the States by taxing items that the States had the power to regulate;
◊ Violated the Second Amendment. 40
The court summarily dismissed – with a paragraph of case citations – "the objection that the Act usurps police power reserved to the States". 41 The cases cited showed that Congress could impose taxes as it saw fit, if such taxes were meant to raise meaningful amounts of revenue, even if the States had the powers to regulatepossession of or commerce in the items in question.
Justice McReynolds then dealt with the remaining matter, the scope of the Second Amendment. In a single paragraph the Court narrowly defined the issue. The question turned on the nature of the short-barreled shotgun:
"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." 42
The Court thus defined and answered, in the negative, a narrow question: whether a specific type of firearm, i.e., a shotgun having a barrel length of less than 18 inches, may lawfully be owned without being subject to any special formalities,permits, or fees.
The Court ignored – and so did not endorse – the government’s other claims, i.e., that:
♦ the right to keep and bear arms was limited to the arms that were best suited to relieve political oppression, and so did not extend to arms used for personal defense;
♦ Sawed-off shotguns, sawed-off rifles and machineguns were weapons that had no legitimate use in the hands of private individuals.
The Court thus plainly did not accept the government’s claim that it could restrict the right to keep and bear arms in any way that it chose to do so.
The Court made clear its reasons for making a narrow decision by the words it used to convey the decision:
♦ "In the absence of any evidence", shows the Court knew:
◊ it had heard only the government’s view
◊ that contrary evidence might have existed but had not been presented
◊ it should leave open the possibility of review, when more evidence might be available.
◊ "at this time" may have emphasized the Court’s view that the matter should berevisited, if, for example, short-barreled shotguns became military or militiafirearms
♦ "such an instrument" plainly limits the decision’s scope:
◊ if broadly construed, to shotguns with barrels of less than 18" in length
◊ if narrowly construed, perhaps only to double-barreled shotguns, given that the shotgun in question is described very specifically, by quoting the indictments, in the decision
◊ had the Court wanted its decision to be broadly construed, it could have usedwords such as, "any kind of shotgun", or "any firearm of whatever characteristics".
♦ "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", shows that the Court:
◊ left open the possibility there was evidence the U.S. military had used shotgunshaving barrels shorter than 18 inches, or that civilians had used them in their commondefense.
◊ re-emphasized that no such evidence had been submitted.
The Court then explained that at the Constitution’s inception, the Militia had most of the tasks assigned to the Regular Army by 1939: enforcing Federal laws, suppressing "insurrections", and repelling invasions. At the outset, the States appointed militia officers and trained the militia to standards set by the U.S. Congress.
While five and one-half pages of the government’s brief had dwelled on the EnglishCommon Law roots of the right to keep and bear arms – with a focus on the limitations of that right – the Court devoted just 11 1lines (in two paragraphs) to the English roots of this right. Eight of the 11 lines set forth the views of an English economist, Adam Smith, on militias: "In a militia, the character of the laborer, artificer, ortradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character". 43
By dealing so briefly with the English Common Law definition of the right to keep and bear arms – and citing the definition of a militia offered by an English economist, rather than that of an English judge or legal scholar – the Court in effect dismissed the government’s narrowly restrictive view of the right to keep and bear arms, under which the government alone could determine both personal eligibility to own armsand the types of arms that could be owned. The Court said nothing about the personal backgrounds of Miller or Layton, presumably because it saw no need to determine their personal suitability to own and to transport a short-barreled shotgun. By ignoring Miller and Layton’s personal qualifications, the Court signalled it did not want access to and ownership of firearms to be based on arbitrary considerations. So far as the Court was concerned, the question was simply one of whether or not a short-barreled shotgun had been a military or militia firearm.
To emphasize that the key issue raised by U.S. v. Miller was whether or not short-barreled shotguns were, or had been, military firearms, the Court devoted one-third of the text of its judgment to lengthy quotes from early American enactments regarding militia firearms and membership qualifications.
The key points of these quotations:
♦ the militia consisted of all adult males
♦ each militia member was required by law to own the requisite arms, whether firearms (rifles or muskets) or edged weapons, such as the pike.
The justices cited enactments of Massachusetts (1632, 1649, and 1784), New York (1786) and Virginia (1785), to make the point that the militia’s weapons were specified carefully, and that shotguns were not included.
Thus, New York on 4 April 1786 required every able-bodied man between 16 and 45 years of age to enroll in the militia, and that:
" … every citizen so enrolled and notified shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket andKnapsack;..." 44
Virginia in October 1785 required that, "all free male persons between the ages of eighteen and fifty years", to be militia members and that every non-commissioned officer and private should have, "a good, clean musket carrying an ounce ball, and three feet.eight inches long in the barrel, with a good bayonet and iron ramrodwell fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen … " 45
The basic concept on which the Court relied is that the types of firearms that may lawfully be owned depends solely on whether or not such weapons have militia or military uses. There can be no other explanation for the Court’s including in its long quotations from colonial era militia statutes, the passages giving details of military firearms, ammunition and accessories. As the Court had heard no evidence that short-barreled shotguns had militia or military uses, it rejected the claim by Miller and Layton that they did not have to register such a weapon according to NFA ’34.
The Outcome
Thus, on 15 May 1939 the Court over-turned District Court Judge Ragon’s decision to quash the indictment of Miller and Layton. On 12 June 1939 Chief Justice Charles E. Hughes issued an order conveying the Supreme Court’s decision to Judge Ragon. That order was received on 14 June 1939. However, the District Court docket shows that on 17 June 1939, Jack Miller was reported to be dead; the prosecution of him was dropped. On 8 January 1940 Frank Layton entered a plea of "guilty" and was placed on probation for five years. 46
The Supreme Court’s decision was not headline news. The New York Times reported it on 16 May 1939, on page 15:
"But today Justice McReynolds drawled from the bench:
’We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia."
"And in his written opinion, he said:
’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."’
This article suggests that Miller and Layton had been represented before the Court: "Attorneys for the two men contended...". At no point did Miller and Layton have more than one attorney, and, as noted above, they were not represented before the Supreme Court.
Conclusions
As the 20th Century draws to a close, it seems ever more clear that U.S. v. Miller – because it is a very narrow decision – is ever less useful to define the scope of the Second Amendment right to be armed.
Those who think the Supreme Court’s decision in U.S. v. Miller was a broad-based general ruling which gave the government license to restrict Americans’ civil right to be armed – should also accept the Court’s logic, and so considerplainly unconstitutional bans on:
♦ new manufacture of fully-automatic and semi-automatic military-type firearms;
♦ the new manufacture of detachable ammunition holders (magazines), especially those types of magazines which are standard U.S. military issue
♦ possession and sale of armor-piercing ammunition.
These types of firearms, accessories, and ammunition are precisely those most suitable for military and militia use. and have been so issued by the Federal government to U.S. armed forces. The Court held that the keeping and bearing ofsuch firearms was explicitly protected by the Second Amendment.
Those who think the Supreme Court made a narrow decision in 1939 – one which affected only short-barreled shotguns – should think the above bans are plainly unconstitutional, and so in need of Supreme Court review. The authors are of this opinion.
Thus, if an opportunity should arise for these matters to be brought before the Supreme Court, it is of paramount importance that powerful evidence — documentary and from expert witnesses – must be presented which establishes beyond even the slightest shadow of. doubt that:
♦ the use by U.S. military and militia forces of classes of firearms, ammunition, and magazines – civilians’ possession of which has been banned – makes such bans unconstitutional
♦ South v. Maryland ( 1856) and a large body of later Federal and State jurisprudence – by relieving the government of a duty to protect the average person – implicitly recognize the civil right of the law-abiding person to keep and bear arms for personal defense;
♦ if the law-abiding person has a civil right to be armed for self-defense, criminals’ abuse of firearms cannot be used to justify depriving the law-abiding of those firearms.
by ... Richard W. Stevens, and Aaron Zelman
Richard is Adjunct Professor of Law, George Washington University, National Law Center.
Aaron is Executive Director, JPFO.
The authors gratefully acknowledge help from Robert Kraus (Philadelphia PA), who generously shared books from his personal library; Charles Foster (Milwaukee, WI), an expert on Civil War firearms; and Thomas Swearengen (SC) who shared his encyclopedic knowledge of military shotguns.
Endnotes
1. U.S. v. Miller, 307 U.S. 174; 59 S.Ct. 816 [1939].
2. U.S. National Archives, Forth Worth (TX) Branch; Record Croup 21, U.S. District Courts, Western District of Arkansas; Fort Smith Division, Criminal;Case #3926. Indictment filed 21 September 1938. Cited as USNA, FWB, USDC, Western District of Arkansas, Ft. Smith Div., Criminal Case #3926).
3. loc. cit., Demurrer to Indictment, 3 January 1939.
4. loc cit., Memo. Opinion, 3 January 1939.
5. loc. cit., Assignments of Error, 30 lanuary 1939.
6. Criminal Appeals Act of 2 March 1907, 34 Stat. 1246 (U.S.C., Title 18, Sec. 682) and Section 238 of the Judicial Code as amended (U.S.C., Title 28, Sec. 345).The U.S. Code Citations refer to the Code as at 1939.
7. Statement of Jurisdiction, USNA, FWB, USDC, Western District of Arkansas, Ft. Smith Div., Criminal Case #3926.
8. Supreme Court of the United States, Transcript of Record; October Term, 1938; No. 696, The United States of America, Appellant vs. Jack Miller and Frank Layton; Filed February 20, 1939; p. 5. Cited as Supreme Court Transcript.
9. loc. cit.
10. loc. cit.
11. New York Times, 14 March 1939, p. 36.
12. Supreme Court Transcript, Brief for the United States; Filed March 29, 1939; pp. 1-5.
13. ibid., pp. 5-8.
14. ibid., p. 8.
15. ibid., p. 9.
16. ibid., pp. 10-15.
17. ibid., pp. 10-12.
18. ibid., p. 12.
19. ibid., p. 12.
20. ibid., p. 13.
21. ibid., p. 15.
22. ibid., p. 15.
23. ibid,. p. 18.
24. ibid., p. 20.
25. U.S. House of Representatives, Report No. 1780, 73rd Congress, 2nd Session. pp. 1-2. quoted in ibid., pp. 7-8.
26. Stephen P. Halbrook, That Every Man Be Armed; The Independent lnstitute, Oakland CA, 1994; Chapter 2, pp. 37-54.
27. 59 U.S. (18 How) 396. 15 L.Ed. 43.] (1856).
28. Bowers v. Devito, 6X6 F.2d 616 (1982).
29. Thomas F. Swearengen, The World’s Fighting Shotguns; Chesa Ltd., Hong Kong, 1978; pp. 1-5. Swearengen retired from the United States Marine Corps as a Chief Warrant Officer.
30. Warren Moore, Weapons of the American Revolution and Accoutrements; Funk and Wagnalls, 1967, p. 90..31. Swearengen, p. 5.
32. ibid., p. 6.
33. Frederick P. Todd, et al, American Military Equipage, 1851 - 1872; Charles Scribner’s Sons, New York, 1980; Vol I, pp. 134-35; Vol. II, p. 1306.
34. Berkeley R. Lewis, Notes on Ammunition of the American Civil War.-1861-1865; The American Ordnance Association, Washington, D.C., 1959. Colonel Berkeley Lewis retired from the U.S. Army Ordnance Corps. There is an appendix, ."Ordnance and Ordnance Stores [Supplies] Purchased by the Ordnance Department, U.S.A., January 1, 1861 to June 30, 1866". It shows that the government paid $66,193 for 10,051 "foreign carbines" (p. 26). The three cartridge types are shown in Fig 1, on p. 2. Foreign muskets in cal. .69, .70., and .71 were supplied with U.S. ammunition of cal. .69, buckshot-andball, and ordinary ball (Table IV, p. 10). The Appendix, under heading"Class X" (p. 77), provides data that show users of the Austrian carbine mainly were supplied with shotgun-type ammunition. Specifically, the government bought:
♦ 6,021,220 rounds of cal. .69 buck & ball ammunition at a cost of $86,982;
♦ 2,735,180 rounds of ball ammunition – which quantity includes both .54 and cal. 69 balls – at a total cost of $51,273;
♦ 830,014 pounds of buckshot. at a cost of $78,432.
35. Swearengen, pp. 8-9. See also Guns & Ammo, "Shooting America’s Military Shotguns"; January 1991, pp. 50-51. Cited as Guns & Ammo.
36. Benedict Crowell, America’s Munitions, 1917-1918; Government Printing Office, Washington D.C., 1919; pp. 185-86. Benedict Crowell was Assistant Secretary of War, Director of Munitions. See also Swearengen, pp. 9-10.
37. Guns & Ammo, pp. 53-54.
38. 307 U.S. at 175.
39. ibid., at 175-77, Footnote 1.
40. ibid., at 177-78.
41. ibid., at 178.
42. ibid., at 178. Black’s Law Dictionary (Abridged 5th Edition, 1984, p. 441) states that, "A court takes ’judicial notice’ of facts that do not require proof because they are universally regarded as true by common knowledge. Examples of such facts include historical events, main geographical features, and indisputable facts of science and nature."
43. ibid., at 179.
44. ibid., at 180-81. Capitalization as in original.
45. ibid., at 181.
46. See Criminal Docket, No. 3926; Clerk’s Office, U.S. District Court, Western District of Arkansas, Ft. Smith Division; Fort Smith, Arkansas