It’s Election Day, so you’re either in line or refreshing a results map you don’t trust. Let’s talk about something calmer: a sawed-off shotgun, two guys from Oklahoma, and a Supreme Court case that almost everyone quotes and almost nobody reads all the way through.
The case is United States v. Miller, 307 U.S. 174 (1939). Gun-ban lawyers cite it all the time. I think they should be careful what they wish for. If you take Miller at its word, it doesn’t shrink the Second Amendment. It points straight at the scary stuff, and it says that’s the point.
Two Crooks and a Shotgun
Here’s the story. Jack Miller and Frank Layton carried a double-barrel 12-gauge Stevens shotgun from Claremore, Oklahoma, to Siloam Springs, Arkansas. The barrel was under 18 inches. They hadn’t registered it or paid the tax under the brand new National Firearms Act, so the feds charged them.
A federal judge in Arkansas tossed the indictment. He said the law violated the Second Amendment. The government appealed straight to the Supreme Court.
Then it gets weird. Nobody showed up for Miller. The opinion literally says “No appearance for appellees.” No lawyer, no brief, no argument. The government argued against an empty chair, and, shockingly, the government won.
Here’s the line that matters:
“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.”
The Court didn’t say short-barreled shotguns are unprotected forever. It said nobody had put any evidence in the record that they were useful to a militia, and judges couldn’t just assume it. (“Judicial notice” is lawyer talk for “things so obvious we don’t need proof.”) So the Court sent the case back down. By most accounts, it was never retried, and Miller himself didn’t live to see it.
That’s the whole holding. One shotgun, one empty record, no defense lawyer.
Now Take It Seriously
So what’s the test Miller gave us? A weapon is protected if it has “some reasonable relationship to the preservation or efficiency of a well regulated militia.” The Court went on to say the militia was “all males physically capable of acting in concert for the common defense,” and that they were expected to show up “bearing arms supplied by themselves and of the kind in common use at the time.”
So the question Miller asks is basically: would this be useful to a citizen soldier?
Let’s run some guns through that test.
A short-barreled shotgun? The Court said nobody proved it. (Fun fact: American troops carried trench shotguns in World War I, but nobody was in the room to say so.)
A machine gun? Come on. A machine gun in 1939 was about as “ordinary military equipment” as it gets. If the test is militia usefulness, the machine gun isn’t on the edge of the right. It’s the poster child.
A cannon? Same answer. A militia with field artillery is a more “efficient” militia. That’s just the plain meaning of the words.
And this isn’t some wild idea that the founding generation would have found strange. The Constitution itself gives Congress the power to “grant Letters of Marque and Reprisal.” That’s the power to license privateers: private citizens, on private ships they owned and armed themselves, attacking enemy shipping in wartime. Those ships carried cannons. Private cannons, on private boats, owned by private people, with the government’s blessing.
So follow Miller’s logic all the way out and you get a picture that’s absurd and perfectly logical at the same time. A guy named Dale, from Ohio, with a letter of marque, a fishing trawler, two belt-fed machine guns, and a shoulder-fired missile he swears is “for the common defense.” Is Dale ridiculous? Totally. Is he outside Miller’s test? I honestly don’t see how. Militia usefulness is the test, and Dale is very, very useful.
The Court Saw This Coming
You don’t have to take my word for it. The Supreme Court said almost exactly this in District of Columbia v. Heller (2008).
Justice Scalia wrote that Miller’s “ordinary military equipment” line, read alone, “could mean that only those weapons useful in warfare are protected.” Then he said the quiet part out loud:
“That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.”
Startling. That’s the word the Court picked. Not “wrong.” Startling.
So Heller went another way. It leaned on the second half of Miller, the part about arms “in common use at the time,” and said Miller protects arms “typically possessed by law-abiding citizens for lawful purposes.” It tied that to the old tradition of banning “dangerous and unusual weapons.” Heller also said it “may be objected” that if “M-16 rifles and the like” can be banned, the right is “completely detached” from the militia clause. Its answer was basically: yes, the fit between the militia and the right isn’t perfect anymore, and that doesn’t change what the right means.
Fair enough. But notice what happened. The Court looked at the militia test, saw it pointing at machine guns, and stepped around it. Heller didn’t hold that machine guns aren’t arms. It flagged them in a passing comment and moved on. Lower courts have been treating that comment like a holding ever since.
Congress Knew in 1934
Here’s the part I love. Congress in 1934 didn’t think it could just ban machine guns either.
The National Firearms Act didn’t ban anything. It put a $200 tax on transfers of machine guns, short-barreled rifles and shotguns, silencers, and a few other things, and it made owners register them. That $200 was real money in the Depression, roughly what a machine gun cost back then. But it was a tax, not a ban.
Why? Because the people writing the law said so. Attorney General Homer Cummings told the House Ways and Means Committee, in a hearing quoted in Stephen Halbrook’s 1995 law review article:
“You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, ‘We will tax the machine gun’ …”
The Attorney General of the United States said an outright machine gun ban might run into the Constitution. Part of that was about how much power Congress had over local crime at the time. But the Second Amendment was right there in the conversation. A congressman literally asked how the bill got around it.
So they used the taxing power. Tax it. Register it. Leave it legal. That’s the path Congress chose when it still believed the Amendment meant something.
The tax-and-register model is still the law today. Cannons, rockets, and other “destructive devices” got folded into the NFA in 1968, and those still carry the $200 tax. (Starting in 2026, Congress cut the tax on suppressors and short-barreled guns to $0, but kept the registration.) The big exception came in 1986, when Congress froze the civilian supply of machine guns. You can still own one made before May 1986, if you pass the background check, pay the tax, and wait. I’ve written before about how the wait itself can be the infringement, and anyone who’s waited on an NFA stamp knows the feeling.
The Free Pass
Now jump to this week.
On October 28, Virginia filed an amicus brief (a “friend of the court” brief from someone who isn’t a party) in the two semi-automatic rifle cases the Supreme Court hears in December, Viramontes v. Cook County and Grant v. Higgins (Nos. 25-238 and 25-566). The brief is signed by Virginia’s Attorney General, Jay Jones, along with his Solicitor General. It backs Cook County and Connecticut. Here’s the brief’s summary, word for word:
“AR-15s are machineguns, except that they - at least to start - have semiautomatic fire rather than automatic fire.”
I read that three times. It’s like saying a minivan is a fire truck, except it doesn’t have the ladder, the pump, the siren, or the water. At least to start.
But the logic underneath is the real move. The brief says machine guns “are not ‘Arms’” at all, because they’re “dangerous and inapt for self-defense.” Then it says semi-automatic rifles are close enough to machine guns that they aren’t “Arms” either.
That’s trying for a free pass. Under the Court’s test of text, history, and tradition, the first question is whether the thing is an “arm.” If it is, the government has to show a historical tradition that supports the law. That’s hard. So the shortcut is to say the thing isn’t an arm at all. Then you never have to do the history.
But “not an arm” is a strange thing to say about a machine gun. It’s the exact kind of thing Miller said the Amendment was built around. Heller called the reading that protects machine guns “startling,” not impossible. And now a state is stacking a second claim on top: a semi-automatic rifle isn’t an arm because it’s sort of like the first thing, which is supposedly also not an arm.
That’s two steps of pretending, and neither one is in the text of the Second Amendment or the enabling laws.
The Walk-Out
So here’s where I land.
If Miller still means anything, the ban arguments fall apart. You can’t cite Miller’s militia test and then say the most militia-useful weapons in America aren’t “arms.” You can’t use “dangerous and unusual” as a magic phrase that makes a rifle stop being a rifle.
And you don’t have to invent a definition. Between the National Firearms Act, the Gun Control Act, and the Firearm Owners’ Protection Act, federal law already defines what firearms and arms are. The NFA lists the ones it covers: machine guns, short-barreled rifles and shotguns, silencers, destructive devices, and a few other odds and ends. Those are arms under federal law. The Gun Control Act of 1968 extends and clarifies what firearms are and then the ATF wrote clear regulations on all firearms. That framework has been tested in court for decades, starting with Sonzinsky v. United States in 1937, when the Supreme Court upheld the tax-and-register scheme. The most recent round was Silencer Shop Foundation v. ATF this year, where the fight was over what happens to the registration rules after Congress zeroed out the tax on suppressors and short barrels. Notice what nobody was arguing: that those things aren’t arms. The statutes already settled that. What Jay Jones is trying to do in his amicus brief is rewrite that.
The honest path was the one Congress picked in 1934. If you think a weapon is dangerous, tax it and register it. I think the current NFA is too slow, too expensive, and a mess. But it at least admits the thing is an arm, and it at least leaves a door open for the citizen.
A ban doesn’t. A ban says the right was never there.
I don’t expect the Court to rule on machine guns in December. That’s not the question in front of it. But somebody, someday, is going to take Miller’s words literally and litigate it all the way up. When they do, they’ll be quoting a 1939 opinion, a 2008 opinion that called that reading “startling,” and a 1934 Attorney General who wasn’t sure he could ban a machine gun either.
Dale and his trawler will be watching closely.
Go vote.
Machine guns are older than the 2A.
The tax and registration themselves are clearly infringements.