Southern California Law Review
Volume 7 (1933-34): 114
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

CONSTITUTIONAL LAW--SECOND AMENDMENT-NATIONAL FIREARMS ACT.--The "National Firearms Act"1 of 1934 in part makes unlawful the transportation in interstate commerce of certain firearms by a person who has not registered the same, or who has not in his possession a stamp-affixed order representing the payment of a tax, as required by the provisions of the act. The defendant charged with violating this section of the act, interposed a demurrer which alleged that the act violated the Second Amendment to the Constitution;2 and which was sustained by the district court.3 The Supreme Court reversed the decision and held that the act constituted no infringement of the Second Amendment. United States v. Miller, 59 Sup.Ct. 816, 83 L.Ed. (Adv.Ops.) 795 (1939).

The right to keep and bear arms was not a Common Law right, a f act proved by the Statute of Northampton, 2 Edw. III, ch. 3, passed in 1328, which declared that no man should "go nor ride armed by night or by day in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere."4 Also, under the statute of 22 Car. 11, ch. 25, §3, no person who had not lands of the yearly value Of L100 (other than the son and heir of an esquire, or other person of higher degree), could keep a gun. However, landed proprietors were required at their own expense to keep men and arms ready for military service; this was the early militia. When Charles II was restored to the throne, he brought with him from France the idea of a standing army, and accomplished the nucleus of such an army in his personal guard, which James II built into a regular army, at the same time disarming the Protestants in his kingdom and placing his Catholic soldiers among the people.5 In 1688, Parliament, under William and Mary, passed a Bill of Rights, which said in part that "subjects, which are Protestants, may have arms for their defense suitable to their condition, and as allowed by law."6 The evil caused by disarming the People was that the King could compel them to submit to the most arbitrary measures, whereas if they had been armed, they could have resisted. Their grievances were of public character; no private defense was contemplated.7

As in England, the militia system was established in the colonies, and included regulations as to the possession-of arms and ammunition.8 The people had an [end Page 129] intense dislike of standing armies, which is manifested in the Declaration of Independence, where, among the list of grievances, is found: "He has kept among us, in times of peace, standing armies without the consent of our legislature. He has affected to render the military independent of, and superior to, the civil power." It was natural, therefore, that the Constitution should provide for a militia;9 and the combining in the Second Amendment of the statement that a militia is necessary to the security of a free state with the pronouncement of the right to keep and bear arms indicates that the latter is guaranteed against infringement10 only insofar as it is essential to the effectiveness of the former.11

The majority of state constitutions have similar provisions,12 the interpretations of which indicate what is meant by the right to keep and bear arms. State decisions frequently have held that the right refers to the people as a collective body,13 although there are some exceptions where the individual right to protect oneself is upheld.14 They declare that the right relates solely to such arms as are recognized in civilized warfare, and their use to defend the State or to preserve the public order.15 They hold that the right does not extend to times or places where the militia is not acting as an organized group.16 They illustrate clearly the belief that the right is guaranteed only in a military sense, and that a regulation of any other type as to the carrying of deadly weapons is a valid exercise of the police power.17

The instant case, therefore, is in accord with history, with the implications in the Constitution itself, and with the trend of state decisions, when it holds that taxing a sawed-off shotgun carried in interstate commerce is not an infringement right guaranteed by the Second Amendment.-WILLIMINA MONTAGUE.

FOOTNOTES

1.Act of June 26, 1934, c.757, 48 Stat.atL. 1237, 26 U.S.C. §1132d.

2. "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."

3. United States v. Miller, 26 Fed.Supp. 1002 (D.C. Ark. 1939).

Cf. United States v. Adams, 11 Fed.Supp. 216 (D.C. Fla. 1935), where the National Firearms Act was sustained as a revenue measure, the court saying that the Second Amendment had no application to the act because the Amendment did not refer to individual rights, but to the militia, a collective body and consequently did not grant racketeers the privilege of carrying weapons of the character dealt with in the act.

4. Bishop, Statutory Crimes (Early's 3d ed. 1901), 530, §783.

5. Emery, The Constitutional Right to Keep and Bear Arms, 28 Harv.L.Rev. 473 (1915)

6. 2 Story, Constitution of the United States (Bigelow's 5th ed. 1891), 647, §1898.

7. Aymette v. State, 2 Humphr. 154 (Tenn. 1840) ; I Cooley, Constitutional Limitations (Carrington's 8th ed. 1927), 729; 2 Story, Constitution of the United States (Bigelow's 5th ed. 1891), 646, §1897.

8. 1 Osgood, The American Colonies in the Seventeenth Century (1904), 499.

9. Art.I, §8(15).

10. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), where the Supreme Court held that the Second Amendment restricts only the powers of the national government, not those of the States; accord: Presser v. Illinois, 116 U.S. 252, 6 Sup.Ct. 580, 29 L. Ed. 615 (1886) ; Miller v. Texas, 153 U. S. 535, 14 Sup.Ct. 874, 38 I-Ed. 812 (1894); Brown v. Walker, 161 U.S. 591, 16 Sup.Ct. 644, 40 L.Ed. 819 (18%).

11. Robertson v. Baldwin, 165 U.S. 275, 281, 17 Sup.Ct. 326, 329, 41 L.Ed. 715, 717 (1897), where the Supreme Court said that the first ten Amendments to the Constitution were intended "simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions, arising from the necessities of the case; in incorporating these into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed;" and that therefore Article 2 of the Amendments is not infringed by laws prohibiting the carrying of concealed weapons.

12. McKenna, The Right To Keep and Bear Arms, 12 Marq.L.Rev. 138, n.5 (1928) ; however, California has no such provision, and the California Legislature has been held to be entirely free to deal with the subject: Ex Parte Rameriz, 193 Cal. 633, 226 Pac. 914, 34 A.L.R. 51 (1924) ; People v. Camperlingo, 69 Cal.App. 466, 231 Pac. 601 (1924).

13. State v. Buzzard, 4 Ark. 18 (1842) ; Aymette v. State, 2 Humphr. 154 (Tenn. 1840); State v. Workman, 35 W.Va. 367, 14 S.E. 9, 14 L.R.A. 600 (1891).

14. Nunn v. State, 1 Ga. 243 (1846) ; State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921), where the decision depended largely upon the peculiar provision of the state constitution; Andrews v. State, 3 Heisk. 165, 8 Am.Rep. 8 (Tenn. 1871).

15. Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619, 3 L.R.A. [N.S.] 168, 7 Ann.Cas. 925, 115 Am.St.Rep. 1% (1905); State v. Smith, 11 La.Ann. 633, 66 Am.Dec. 208 (1856) ; Pierce v. State, 42 Okla.Cr. 272, 275 Pac. 393, 73 A.L.R. 833 (1929) ; English v. State, 35 Tex. 473, 14 Am.Rep. 374 (1872).

16. Hill v. State, 53 Ga. 472, 479 (1874), where the court concluded that "the right to keep and bear arms is not infringed if the exercise of it be by law prohibited at places and times when a proper respect for the majesty of the law, a sense of decency and propriety, or the danger of a breach of the peace forbid it;" see: State v. Kerner, 181 N.C. 574, 578, 107 S.E. 222, 225 (1921) Andrews v. State, 3 Heisk. 165, 182, 8 Am.Rep. 8, 15 (Tenn. 1871).

17. State v. Reid, I Ala. 612, 35 Am.Dec. 44 (1840) Glenn v. State, 10 Ga.App. 128, 72 S.E. 927 (1911) -, State v. Jumel, 13 La.Ann. 399 (1858); Commonwealth v. Murphy 166 Mass. 171, 44 N.E. 138, 32 L.R.A. 606 (18%) ; contra: In re Brickey, 8 Idaho 597, 70 Pac. 609, 1 Ann.Cas. 55, 101 Am.St.Rep. 215 (1902), where the court held that an act prohibiting the carrying of deadly weapons in cities, towns, and villages was invalid, saying that the Legislature could regulate the exercise of the right to bear arms, but could not prohibit it; Bliss v. Commonwealth, 2 Litt. 90, 13 Am.Dec. 251 (Ky. 1822), where the court held that a statute forbidding the wearing of concealed weapons except when on a journey was void (a later constitution gave the Assembly the express right to pass such a statute).