The Peculiar Story of United States v. Miller
On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Fire-arms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.
Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. But courts struggle to decipher its holding. Some find Miller adopted an individual right theory of the Second Amendment, some find it adopted a collective right theory, and some find it adopted a hybrid theory, protecting the right to possess a firearm in connection with militia service. Most recently, in Parker v. District of Columbia, the D.C. Circuit concluded Miller assumed the Second Amendment protects an individual right to possess and use weapons “’of the kind in common use at the time,’” including handguns.
