1934 NFA, the Failed 1938 NFA, Miller, & the Regulation of Gun Parts


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.

Welrod Mark II Clandestine Pistol with Integral Silencer
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
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.

Despite thousands of objections to the passage of the NFA of 1938, it was passed and became law on June 30, 1938.

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.

The NFA case was given to Judge Heartsill Ragon.  He appointed the defense counsel. He refused to accept a guilty plea.

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.

The judges did not want military arms protected, so they ruled they were not protected.

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
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.

Dozens of Progressive judges appointed by FDR and later presidents cemented the progressive view of a “living Constitution” into the American legal system.

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.

About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering and retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.

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Learning point: Progressive equals anti liberty.. Any time you hear that word associated with a person or policy you must immediately turn on your defenses. To progressives and other leftists the law is what they say the law is dependent not on principle but upon their particular needs at the time. That changes over time, and they do not feel compelled to explain it to you. So, over night your liberty disappears in the name of popularly supported common sense solutions. Constitution and justice be damned. And that is how it has worked for over 100 years in America. While… Read more »

Green Mtn. Boy

Bottom line all gun control laws past, present or future are unConstitutional, it’s about something every tyrant covets, Control.


Dean, this is the BEST and MOST ENLIGHTENING story I’ve ever read here. It shows that these leeches have been using the same template for almost 100 years! 100years, and most people have not caught on yet, and the ones who have have not found a way to beat them yet?
Dirty, dirty judges. Those are the real animals.


I agree with the exception of the part where the NRA valiantly tried to save our rights and was only able to get handguns off the registry. All BS even by the NRA’s own account in their own publication, the American Rifleman. http://jpfo.org/articles-assd02/nra-supported-nfa34.htm


Great article. The progressives are surly going to try to put forth a new control scheme sometime soon after the 2022 election. They won’t try before the election, but I’d expect it soon after if the retain or expand their power. Make sure that everyone in your house, that is eligible, votes. Do everything you can to make sure that all your like-minded friends and family votes. If we can make it to 2024 unscathed, and can change the White House, we stand a good chance of appointing more originalist judges to ensure that our freedoms last a while longer.… Read more »

Wild Bill

I don’t think that the marxist socialist democrat party will be able to pass gun control after the election. I am thinking that they will try while they have a majority. Better buy that Ruger 10/22 for your kid asap.
Oh, and welcome to the site.


The whole damn thing needs to be thrown out. There are rules and regulations that make no sense at all, take for instants: I can take a 8″ 5.56 barrel put a “support” brace on it and it’s a “pistol”, on the other hand I take a 9mm put a standard stock on it and it’s a “rifle” and its considered a SBR and requires a $200 tax stamp. WTF.


Great article, thank you!


I agree.Mr.Weingarten hit a grand slam with this piece.


Cheney goes down hard about 25pts! At least the people of Wyoming got it right this time!


But…We already knew that. The important thing is, did Palin win in Alaska, Genius? LOL!

“Maybe the good people of Alaska will send Murkowski packing tonite too with a Palin win.”
-The Genius ex(?)-cop known as Ope-TEX-Bruce-Will-FordWill et socks

Last edited 1 month ago by Russn8r

Dean, this is the best article I’ve read on Ammoland in years. Thanks.

Roland T. Gunner

Good article Dean, but you give too much credit to the NRA.


WAY too much. NRA was far more heavily behind The Big 3 Gun Control acts than Dean states.


If Americans knew the truth about the GCA of 1968 they might wake up. It was the brain child of the traitorous dog Thomas J. Dodd Democrat of Connecticut. But the original is the German Weapons Control Act of 1938.
Traitor Dodd had the Library of CONgress translated said act and he copied almost word for word! Wake up Sheeple!

Wild Bill

Boy howdie, that is a good article! Dean that is the best article that I have ever read on the subject!


I’ll believe it when I see it.

What we consider Constitutionalists they consider we support the Constitution BUT.

When I see the 1934,38,68 etc ruled unconstitutional by SCOTUS, then I will believe it.


@Yak – Like at least one other poster, you seem to be insisting that others start violence on your behalf. You will need dramatically better leadership skills to convince anyone to fight for you. Step one might be to stop insulting those who you wish to have do your bidding. Difficulty in rescinding NFA is that too small a fraction of the population desires to own the restricted devices. Also too many of the sheep figure those devices are regulated or illegal for a reason – and are thus scary and dangerous. Tough to win votes outnumbered a hundred to… Read more »

Wild Bill

@Finnky, Good observations.

Wild Bill

, That is an outstanding review of anti-Second Amendment history, and your best article that I have ever read! This is no less that a public service. I am printing it and putting it in one of my horn books.


We need all the conservative judges President Trump can nominate and get approved by the Senate. It is becoming more clear by the day that the progressive Soc/Libs will ravage the constitution if given a chance. Only a strong judicial branch and more conservative supreme court judges can maintain the strengths and continuity of the constitution’s Bill of Rights and the rule of law.


I soiled my linen when I looked at the $150 price of a Browning machine gun (tripod included)!

Sigh . . . . .

Ryben Flynn

And that price today is about $50,000 if you can find somebody willing to part with theirs.


With simple inflation, that would be around $3,000 today, or slightly less. Respectably expensive, but not prohibitive to everyone.


Just as I predicted Sarah Palin wins in Alaska heading to the general election in November. Cheney goes down hard in Wyoming losing by over 30pts. Then after that hysterical ass whipping she compared herself to Abraham Lincoln and says she might run for President. Mental illness is a terrible thing.


Premature. Palin, running for house, not Senate, did not yet officially “win” in Alaska. The Democrat got the plurality, and Palin’s primary Republican opponent Begich has not yet been eliminated. Alaska says it won’t complete rank-choice until Aug 31. 80% of precinct results have been published so far.



At least the people of Wyoming got it right this time. Cheney goes down hard!


Off topic,but polls just closed in Wyoming in Hageman/Cheney race. Final results should only take two or three minutes to be in.


Uh huh, because you’re the expert on Wyoming “individuals”. Will you stop trashing Wyo if she loses big?


Cheney don’t get democrat cross over vote like she expected. The election will be called in a couple minutes. Cheney goes down hard by about 25 pts. I’m sure glad the people of Wyoming managed to get it right this time.

Watch um

And with that this nation became a shit hole of violations of the Constitution.
May all those past presidents and liberal judges continue to burn for ever lasting eternity


Lawyers & Judges the powerful tools of the democratic party and the elite. When you write law and break those same laws without fear of prosecution, this clearly describes the democratic socialist party of the twenty first century. Funny those who protested the government at places like Haight Ashbury 1960s counterculture are the same folks we are now up against. Today’s version buys cases of plastic bottled water and complains about climate change to progress the left’s agenda. The hands on the clock continue to round and the earth spins round and round so far gravity is holding strong. Mankind… Read more »


it will come down to 3% that value their rights to clean up the mess again


Dean could have mentioned that the Gun Control Act of 1968 had its basis in the German Gun Control Act of 1938, who’s main author was Senator Dodd who was an Army Intelligence officer in WWII, who just so happened to come across it after the war.

So the NRA prevented handgun registration in the 1930’s as well as the 1960’s but I read posts here that claim the NRA has done NOTHING, but was responsible for ALL gun laws passed in the USA.

Wild Bill

, yeah, the NRA opposed part and failed to oppose the entirety of each of those statutes. In other words, the NRA compromised a little of our rights away each time. I call that failure.
Half a clic up for your first paragraph. Half a click down for your last paragraph.


For your amusement, the genius “individual” ex(?)-cop Ope just posted & deleted this. I figger he was trying to rip on me, then realized he was also ripping others here, like you.

“A certain little person relying to a two year old comment is funnier than all get out!!! Lol! !”


Not sure why these comments show 2yrs ago on an article posted yesterday. Ammoland glitch.

Last edited 1 month ago by Russn8r

Sen Thomas Dodd (Christopher’s corrupt, demonrat father; another political dynasty) had many roles in government including a stint with the FBI, and was second ranking lawyer at the Nuremberg Trials, it is there where he is said to have obtained and retained a copy of the Nazi’s Gun Control Acts. … Many will recall JPFO translated the Nazi 1938 Act and compared it to US GCA of 1968 proposed by Dodd; they are in all material respects the same legislation.

Wild Bill

Yes, “Gun Control: Gateway to Tyranny” and “Lethal Laws: Gun Control is the Key to Genocide”. Both were authored by Jay Simkin, Aaron Zelman, and Alan M. Rice.


Retired U.S. Army Lieutenant General Milton Reckord, who was the National Guard Lieutenant General, Adjutant General of the State of Maryland and Executive Vice President of the National Rifle Association of America, was a wimp at the Hearings before the Committee on Ways and Means House of Representatives, 73rd Congress.  This guy had credentials; he was also the very definition of a fudd. Reckord vacillated on the legislation, but in the end, he fully supported the onerous federal regulation of machineguns, short barreled rifles, short barreled shotguns, any other firearm capable of being concealed on the person, and silencers. He only… Read more »

Last edited 1 month ago by JSNMGC

The NRA did NOT prevent handgun registration in the 1960s. GCA’68 is de facto gunowner registration on all sales. Every time a dealer goes under or ATF shuts one down, GCA’68 lets the federales keep the records including the identification of all gun buyers. They’ve already collected hundreds of millions of records that way.


Love it…excellent article.


Sometimes when I think about our history, it just seems like a series of unfortunate events. Woodrow Wilson,was a president who had previous work experience as college president. The first World War broke out and he brought the first income tax to pay for it. Up until that time alcohol taxes pretty much paid for most of government. The temperance movement ( no alcohol rights) and women’s voting rights ( the sufferage movement) led to women getting the right to vote.. In the meantime the first world war was over ,war debt retired, income tax no longer needed. But now… Read more »


Franklin D. Roosevelt was following his master & mentor, Woodrow Wilson. Wilson was a rich elitist. When Jews and Italians started joining his exclusive Men’s clubs, he decided that an unconstitutional income tax, just as the Communist Manifesto recommends, was in order to keep American citizens, those peasants, from acquiring wealth. Wilson implemented segregation in the federal government. At each turn, the American people sat quietly as the harness was placed, tighter and tighter, on their necks. Meek submission to their master…government. In 2016, there was unconstitutional spying and wiretapping against American citizen Donald Trump. The unconstitutional coup continued against… Read more »

Wild Bill

ttj, Most of the American public did not even know what was going on. But you correctly identify that government corruption and elitism goes back at least one hundred years.


I agree. Just one thing. It was Jefferson who mentioned refreshing the tree of liberty. Not Patrick Henry.


I would say the founding fathers understood popular reticence to begin the fight. They had spent years pushing the idea of revolution, attempting to convince people that t was possible, winnable, moral and beneficial. I suspect many of these flowery quotes were developed during that effort. They insured the best would be retained for history because they understood that once we had peace, we would be very reluctant to rise up again. They well knew that each generation must learn for themselves, grow a spine, and find their own leaders. I believe this is a primary reason for the first… Read more »

Roland T. Gunner

That was very well laid out, thank you.


Well said, and I agree.


The two Majors who participated in the attack on the bonus marchers were George S. Patton AND Dwight D. Eisenhower under the command of the Army Chief of Staff Douglas McArthur. My father, who fought in the Pacific throughout WW II referred to him as “Dugout Doug”.


May they Rot In Hell for that. There’s quite a bit on it in Unintended Consequences.


You cover Ragon’s bias, but you forgot to mention Hugo Black. Hugo Black was ALSO in Congress to vote for the NFA and was a known member of the KKK. He also wrote the Korematsu decision.

Wild Bill

@Nan, Yeah, Hugo Black was the worst! He corrupted the meaning of the First Amendment and pushed God out of the schools.

Greg K

The other thing Wickard V. Filburn did was give the Bureaucracy ability to tailor and make punitive adjustments to laws…This get left out, but is extremely important. Interestingly, when our soldiers were done with WW2 and found out, the Government passed the Administrative Procedures Act (1947 I believe), which calls for public forumn before the agencies can make changes.


Dean,thanks for the clarification.

Wild Bill

No public forum required. A period of “notice and comment”. Of course the agency does not read the comments because that would take employees and time, and there is no way to prove that the agency didn’t read the comments.

Greg K

While your assertion of Government Non-Compliance is correct, Public Forum comes from the original text of the APA. It’s been amended over the years so I don’t know if it remains…Here is the definition of “forum”. You will find that in the first definition, type c the internet, newspapers, etc., provide a vehicle for “forum”. https://www.merriam-webster.com/dictionary/forum

Ricardo Pacetti

Back to the article, Can someone confirm that senator Dobbs Father actually took Hilers gun law and hd re-written it for form the GCA of 1938, which passed on my Birthday.

Wild Bill

Yes, I can. In the book, “Gun Control, Gateway to Tyranny,” by Aaron Zelman and Jay Simkin, Senator Thomas J. Dodd, Sen. Edward Kennedy and the Senate Judiciary Committee crafted a gun control scheme based upon several Nazi gun control statutes. The book documents Sen. Thomas Dodd’s letter to the Library of Congress requesting a translation from German to English, on page 130 is a photo copy of the letter. The German statutes are on pages 14-80; and a side by side comparison with the GCA of 1968 begins on page 83, and following. I got my copy along with… Read more »

Last edited 29 days ago by Wild Bill

“NRA stripped handguns from the bill. Since silencers, machine guns, short-barreled rifles & shotguns were less commonly owned NRA did not contest that” ~DW

No, it’s because they were FUDDs

“I never believed in the general practice of carrying. I seldom carry. I don’t believe in the general promiscuous toting of guns. It should be sharply restricted & only under license.” ~Karl T Frederick, NRA Pres

DICKINSON: “Does this bill interfere with the RKBA or to be secure against unreasonable search? Is it unconstitutional? Does it violate any constitutional provision?”

KTF: “I haven’t given it any study from that POV”

Last edited 1 month ago by Russn8r
Mike Carbine

Mr. Weingarten very informative article. AT guns and small AA, those were the times. Too bad so many Greatest Generation did such a lousy job raising the Boomers…is it any wonder our inner-cities resemble Mogadishu and half the voting populace is trying to elect an avowed communist…


“Maybe the good people of Alaska will send Murkowski packing tonite too with a Palin win.”
-The genius known as Ope-TEX-Bruce-Will-FordWill et ilk

Palin isn’t on the ballot.

Last edited 1 month ago by Russn8r

LOL. The Genius ex(?)-cop puppeteer deleted its post again.


Milton Reckord, NRA EVP, National Guard Lieutenant General, Adjutant General of the State of Maryland and retired U.S. Army, Lieutenant General, was a wimp at the Hearings before the Committee on Ways and Means House of Representatives, 73rd Congress.   Reckord vacillated on the legislation, but in the end, he fully supported the onerous federal regulation of machineguns, short barreled rifles, short barreled shotguns, any other firearm capable of being concealed on the person, and silencers. He only stood somewhat firm on removing handguns from the purview of the Bill. The DOJ indicated “gangsters” used handguns, so they shouldn’t be removed from… Read more »


The American people for the most part accept that there is no control over the elected. Americans expect that one side should balance the other, the scales of justice. While social media consumes their lives with each passing day Americans feel that our voices are not recognized by the elected and accept their fate. This is a truthful statement today even more so with the socialist democratic party in control. When the political party in power places cement walls barb wire around Washington DC to protect themselves. Calls for the office of disinformation the national police force to expand throughout… Read more »


How about you lead from the front ??

Instead of crying like a bitch saying people should use there guns.
Nobody is impressed with your comments.