In US v. Miller, the Supreme Court found that the NFA was constitutional because short-barreled shotguns have no military uses. Assuming for the sake of argument that's true (it's not), how can the machine gun clauses of the NFA be constitutional? Nobody would say machine guns have no military uses; in fact I'd guess weapons meeting the legal definition of machine guns are more common in the military than other weapons. So what gives?

  • I’m voting to close this question because it's better discussed on politics.stackexchange.com Jun 1, 2021 at 18:17
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    The controlling precedent is now DC v. Heller, which I recommend reading if you are interested in this issue. In particular, on page 52 the court considers this exact question, and determines, based on Miller, that the Second Amendment does not protect the right to possess machine guns. Jun 1, 2021 at 18:45
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    @BlueDogRanch The question seems to be asking about how a law that's been passed was found to be constitutional, and there is a comment with a SCOTUS ruling on the exact issue in the question. That seems to be on-topic. Jun 1, 2021 at 19:03
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    Questions as to the meaning and effect of US Supreme Court decisions and the legal interpretation of the US constitution are fully on-topic here, even if they are also on topic at Politics.se. This should not be closed or migrated. Jun 1, 2021 at 19:05
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    Yes, "How is X constitutional?" is about as obviously legal as a question can get.
    – bdb484
    Jun 1, 2021 at 20:41

1 Answer 1


Because that’s not what Miller says

The court evaluated and expanded Miller in District of Columbia v. Heller, 554 U.S. 570 (2008) at p.52:

Read in isolation, Miller’s phrase “part of ordi­ nary military equipment” could mean that only those weapons useful in warfare are protected. 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. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. … We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

And at p.54:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts rou­tinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. …Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws impos­ing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” …

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim­ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

“Nobody would say machine guns have no military uses” - indubitably. However, nobody would say that they had a military use in the seventeenth century or that they are “typically possessed by law-abiding citizens for lawful purposes” in the twenty-first. Either of these make the prohibition of machine guns constitutional.

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    Except that the muskets militiamen brought from home were equivalent to the muskets issued to the military. Seems like by that logic I should be allowed to own the same rifles as the modern military. And the only reason they are not "typically possessed by law-abiding citizens for lawful purposes" is that they've been banned so long. Not saying this isn't the answer to my question, just that I find the SC's position unconvincing.
    – Ryan_L
    Jun 2, 2021 at 0:16
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    Whether you find it convincing is irrelevant: it’s authoritative.
    – Dale M
    Jun 2, 2021 at 1:25
  • Unfortunately I agree.
    – Ryan_L
    Jun 2, 2021 at 2:12
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    @Ryan_L Dale's answer is the correct legal one. The extra-legal answer is simple: it's legal because the government has said it's legal, and the government gets to decide what's legal unless the people overthrow the government. The government hasn't yet made people angry enough to do that, and so the ruling stands.
    – Patrick87
    Jun 2, 2021 at 12:43
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    @DaleM There are legal ways to change the laws, and extra-legal ways. I prefer thinking of things like violent revolution as being extra-legal rather than illegal (though they are certainly called illegal at the time, and remain being considered illegal if they fail). But extra-legal remedies are not on-topic for this site.
    – Patrick87
    Jun 2, 2021 at 13:33

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