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[Cite U.S. v. Miller, 26 F.Supp 1002 (W.D. Ark
1939), rev'd, 307 U.S. 174.]
UNITED STATES v. MILLER et al.
District Court, W. D. Arkansas,
Jan. 3, 1939.
A provision in National Firearms Act prohibiting
delivery of firearms in interstate commerce without a stamp-affixed order is
violative of constitutional amendment providing that right of people to keep and
bear arms should not be infringed. National Firearms Act §§ 4, 11,
26 U.S.C.A. §§ 1132c, 1132j; U.S.C.A. Const. Amend.
Jack Miller and Frank Layton were charged with
unlawfully transporting a firearm in interstate commerce without having in their
possession a stamp-affixed written order for such firearm. On demurrer to
C. R. Barry, U.S. Dist. Atty., and Duke Fredrick,
Asst. U.S. Dist. Atty., both of Fort Smith, Ark.
Paul Gutensohn, of Fort Smith, Ark., for defendants.
HEARTSILL RAGON, District Judge.
The defendants in this case are charged with unlawfully and
feloniously transporting in interstate commerce from the town of Claremore,
Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double
barrel twelve gauge shot gun having a barrel less than eighteen inches in
length, and at the time of so transporting said fire arm in interstate commerce
they (p.1003)did not have in their possession
a stamp-affixed written order for said fire arm as required by Section 1132c, Title 26 U.S.C.A., and the regulations issued
under the authority of said Act of Congress known as the National
Firearms Act, 26 U.S.C.A. § 1132 et seq.
The defendants in due time filed a demurrer challenging the
sufficiency of the facts stated in the indictment to constitute a crime and
further challenging the sections under which said indictment was returned as
being in contravention of the Second Amendment to the Constitution
of the United States, U.S.C.A.
The indictment is based upon the Act of June 26, 1934,
C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. § 1132j. The court is of
the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States,
U.S.C.A., providing, "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."
The demurrer is accordingly sustained.