May 15, 1939, was 69 years before Heller and 83 years before Bruen. Eugene Stoner was 16 years old; it would be 15 years before he went to work for Armalite.
On that day, Associate Justice James McReynolds delivered the Supreme Court’s 8-0 decision in United States v. Miller, 307 U.S. 174.
Citing Aymette v. State, the Court said: “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.”
It’s often forgotten the only type of gun that was “on trial” was the sawed-off shotgun found in the possession of a couple of outlaws, Jack Miller and Frank Layton. This is important; it was the first time the Supreme Court established a standard for the types of bearable arms protected by the Second Amendment.
In Miller, the Court said such protection applied only to weapons “hav(ing) some reasonable relationship to the preservation or efficiency of a well regulated militia.”
Many, including more than one Supreme Court justice, have interpreted this to mean the Second Amendment protects only a collective right, linking the keeping and bearing of arms strictly to service in a militia. Even a cursory examination of McReynolds’ statement shows the flaws in this interpretation.
In 1939, the United States militia included all able-bodied men at least eighteen years of age and less than forty-five. After the passage of the Militia Act of 1903, the militia was subdivided into two groups: the organized militia was named the National Guard, while the balance of the group became the Reserve Militia.
According to Article I, §8, Clause 16 of the U.S. Constitution, the government is obliged to pay only for the arming, equipping, and training of the National Guard and pay them at the same rate as a soldier in the regular Army. According to some quick, back-of-the-napkin calculations, this means roughly 36.6 million adult males are members of the Reserve Militia in 2025.
In the event of a clear-and-present danger to the U.S., the President has the constitutional power to call up as much of the Reserve Militia as is deemed needed. As was true in 1792, members of the Reserve Militia would be expected to supply their own kit, including a suitable firearm meeting the standard set by the National Guard for general-issue guns.
In 1939, the standard National Guard firearms included: M1903 Springfield bolt-action rifle and the M1 Garand semi-automatic rifle, both chambered for .30-06; the M1918 Browning Automatic Rifle, also in .30-06; M1, M1A1 and M2 carbines in .30 carbine; M97 12 ga. pump shotgun with a 20-inch barrel; M1921 Thompson submachine gun, M1911/M1911A1 semi-automatic pistols, and M1917 revolvers, all in .45 ACP.
In the civilian world, the bolt-action .30-06 rifle was fairly common, but the lever-action .30-30 rifle rivaled it in popularity. The Remington Model 8, chambered for .35 Remington, was among the most popular semiautomatic rifles. A fair percentage of rifles owned by American hunters were chambered for other calibers.
The most common shotguns were 12-gauges in pump, break-action, or single-shot versions. The semiautomatic Browning A-5, also sold as the Remington Model 11 and Savage Model 720, had been around since 1902, but they were not common in U.S. military arsenals.
Thanks to thousands “liberated” after World War I, .45-caliber handguns were fairly common, but there were also lots of pistols and revolvers chambered for various 38-caliber cartridges, including .38 Special, along with a large array of handguns chambered for .32 and other calibers. 9X19mm handguns were generally Lugers and Mausers brought back as war trophies and a limited number of Browning Hi-Powers, which was first introduced in Europe by Fabrique National in 1935.
The Miller opinion didn’t include any specific guidelines for determining what was suitable for militia use, but strongly suggested weapons that were part of “the ordinary military equipment” were more likely to be protected by the Second Amendment. To be sure, guns chambered for the most common military calibers would ease logistical and supply issues.
Flash forward to today. The M4 Carbine chambered for 5.56×45 NATO is the National Guard’s standard-issue rifle. With its selective-fire capability, the M4 also replaced the need for a submachine gun, and the BAR has been superseded by the M249 Squad Automatic Weapon (SAW). The standard pistol is the M17 9mm, with perhaps a few M9s, also in 9mm, lingering around. The Mossberg 590A1 12-gauge pump is the most common shotgun.
According to the Miller standard, self-loading rifles using 5.56×45 NATO cartridges and self-loading 9mm pistols are fully protected by the Second Amendment and not subject to government regulation.
What have been the best-selling firearms in America for well over a decade? Self-loading rifles (at least those capable of handling 5.56×45 NATO or chambered for .223 Wylde) and 9mm handguns. Rifles capable of accepting standard military magazines get extra points and there’s a bonus for a bayonet lug.
Lower court rulings upholding assault weapon bans because AR-15s look like or function almost like military rifles fail completely. Judges obviously haven’t taken a close look at United States v. Miller: Those resemblances are really the reason AR-platform rifles would be suitable for militia use and therefore cannot be banned. The fact that they also easily meet the “in common use for lawful purposes” benchmark established by Heller is just icing on the cake.
As for the “dangerous and unusual” standard set in Heller, the AR-15 is no more dangerous than any other semiautomatic rifle when handled properly. It’s certainly not unusual, having been the best-selling type of rifle in America for a number of years.
This may all sound like it’s coming out of left field. Full disclosure: I am not an attorney and I don’t play one on TV. However, I can read and I have decent comprehension, even when it comes to legal documents and judicial findings.
Based on careful study of the Supreme Court’s jurisprudence and Justice Antonin Scalia’s affirmation of the Miller decision in Heller, I have to stand by my conclusions.
On Monday, May 15, 1939, about 23 years before Colt introduced the AR-15 Sporter rifle, the Supreme Court of the United States ruled it was protected by the Second Amendment.
About Bill Cawthon
Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.
