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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.

No. 3926.

District Court, W. D. Arkansas,
Fort Smith Division.

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. 2.

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 indictment.

Demurrer sustained.

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.