U.S. v. Warin

• Decision Date: 21 June 1976
• Docket Number: No. 75--1734,75--1734
• Citation: 37 A.L.R. Fed. 687,530 F.2d 103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis T. WARIN, Defendant-Appellant, Second Amendment Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 103

530 F.2d 103

37 A.L.R.Fed. 687

UNITED STATES of America, Plaintiff-Appellee, v. Francis T. WARIN, Defendant-Appellant Second Amendment Foundation, Amicus Curiae.

No. 75--1734.

United States Court of Appeals Sixth Circuit.

Argued Dec. 16, 1975.

Decided Feb. 4, 1976.

Certiorari Denied June 21, 1976.

See 96 S.Ct. 3168.

Norman G. Zemmelman, Britz & Zemmelman, Toledo, Ohio, for defendant-appellant.

Richard A. Derham, Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for amicus curiae.

Fredrick M. Coleman, U.S. Atty., Erie D. Chapman, III, Asst. U.S. Atty., Toledo, ohio, Harry H. Ellis, Regional Counsel, Bureau of Alcohol, Tobacco & Firearms, Cincinnati, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This case requires a determination of whether certain provisions of the National Firearms Act as amended by the Gun Control Act of 1968, 26 U.S.C. § 5801 et seq., are an invalid infringement on the right to keep and bear arms guaranteed by the Second Amendment to the Constitution which provides--

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 defendant appeals from his conviction of the charge that he 'willfully and knowingly possessed a firearm, that is a 9 mm prototype submachine gun measuring approximately 21 inches overall length, with a barrel length of approximately 7 1/2 inches, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53, Title 26, United States Code' in violation of 26 U.S.C. §§ 5861(d) and 5871.

At trial before the court, the following facts were stipulated to be true:

That on or about the 19th day of March, 1974, in the Northern District of Ohio, Western Division, Francis J. Warin willfully and knowingly possessed a firearm, that is, a 9-millimeter prototype submachine gun measuring approximately twenty-one inches overall length, with a barrel length of approximately seven and a half inches, which had not been registered to him in the National Firearms Registration and Transfer Record, . . . that submachine guns are used by the armed forces of the United States, and that submachine guns contribute to the efficient operation of the armed forces of the United States in their function of defending the country . . .. (T)hat the weapon involved in this case is a submachine gun . . .. (T)hat 9-millimeter submachine guns have been used by at least one Special Forces Unit of the Army in the Vietnam, . . . although they are not in general use. 9-millimeter submachine guns have been used by the military forces of the United States on at least one occasion during the Vietnam war . . .. (T)hat submachine guns are part of the military equipment of the United States military--. . . and that firearms of this general type, that is, submachine guns, do bear some relationship, some reasonable relationship, to the preservation or efficiency of the military forces.

The district court found that the defendant, as an adult male resident and citizen of Ohio, is a member of the 'sedentary militia' of the State. ¹ It was not contended that Warin was a member of the active militia. The court also found that the defendant was an engineer and designer of firearms whose employer develops weapons for the government and--

. . . that the defendant had made the weapon in question, which is indeed a firearm as described in the Act. It is also clear from the evidence that the weapon was of a type which is standard for military use, and fires the ammunition which is in common military use for the weapons used by individual soldiers in combat. The defendant testified that he had designed and built the weapon for the purpose of testing and refining it so that it could be offered to the Government as an improvement on the military weapons presently in use. The weapon was not registered to him as required by law.

These findings are not disputed.

In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the Supreme Court held that the National Firearms Act of 1934 did not violate the Second Amendment. In its opinion the Court stated:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Id. at 178, 59 S.Ct. at 818 (citation omitted).

Warin argues that the necessary implication of the quoted language is that a member of the 'sedentary militia' may possess any weapon having military capability and that application of 26 U.S.C. § 5861(d) ² to such a person violates the Second Amendment. We disagree. In Miller the Supreme Court did not reach the question of the extent to which a weapon which is 'part of the ordinary military equipment' or whose 'use could contribute to the common defense' may be regulated. In holding that the absence of evidence placing the weapon involved in the charges against Miller in one of these categories precluded the trial court from quashing the indictment on Second Amendment grounds, the Court did not hold the converse--that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action.

Within a few years after Miller v. United States was announced the First Circuit dealt with arguments similar to those made by Warin in the present case. In Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943), the court held that the Supreme Court did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case. The court of appeals noted the development of new weaponry during the early years of World War II and concluded that it was not the intention of the Supreme Court to hold that the Second Amendment prohibits Congress from regulating any weapons except antiques 'such as a flintlock musket or a matchlock harquebus.' 131 F.2d at 922. If the logical extension of the defendant's argument for the holding of Miller was inconceivable in 1942, it is completely irrational in this time of nuclear weapons.

Agreeing as we do with the conclusion in Cases v. United States,supra, that the Supreme Court did not lay down a general rule in Miller, we consider the present case on its own facts and in light of applicable authoritative decisions. It is clear that the Second Amendment guarantees a collective rather than an individual right. In Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971), this court held, in a case challenging the constitutionality of 18 U.S.C.App. § 1202(a)(1):

Since the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

See also, United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

It is also established that the collective right of the militia is limited to keeping and bearing arms, the possession or use of which 'at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, . . ..' United States v. Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. See also, United States v. Johnson, supra; Cody v. United States, 460 F.2d 34, 37 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972).

The fact that the defendant Warin, in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question. By statute the State of Ohio exempts 'members of . . . the organized militia of this or any other state, . . .' (emphasis added) from the provision, 'No person shall knowingly acquire, have, carry, or use any dangerous ordnance.' Ohio Revised Code § 2923.17. 'Dangerous ordnance' is defined to include any automatic firearm. O.R.C. § 2923.11. There is no such exemption for members of the 'sedentary militia.' Furthermore, there is absolutely no evidence that a submachine gun in the hands of an individual 'sedentary militia' mumber would have any, much less a 'reasonable relationship to the preservation or efficiency of a well regulated militia.' Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. Thus we conclude that the defendant has no private right to keep and bear arms under the Second Amendment which would bar his prosecution and conviction for violating 26 U.S.C. § 5861(d).

Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms. After considering several arguments the Third Circuit in United States v. Tot, supra, stated that it decided the case on the 'broader ground' that '(w)eapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since.' 131 F.2d at 266 (footnote omitted). In Stevens v. United States, supra, this court discussed the broad power of Congress in relying on the commerce clause of the Constitution to deal with the changing needs of the nation. 440 F.2d at 150--152. In United States v....