November 9, 1938 There was no warning at all. One moment the watch repair shop on Bergerstrasse was quiet and peaceful, occupied only by its owner. An instant later, the storefront window vanished, imploding inward in a shower of glass shards under the force of three expertly-wielded truncheons.

Before the jagged pieces had all come to rest on the drab but immaculate shop floor, the watchmaker knew. He knew that the whispers he had been pretending didn't exist were true. He knew that the hope he had held out had been utter self-deception. He knew that however bad things were going to be tonight, they would get much worse in the days and months to come. He had talked-oh, how endlessly he had talked!-to the other Munich shopkeepers and merchants in the area. They had all agreed that it was nothing to worry about. The sentiments that were building were nothing new. Hadn't they always been resented for their business skills? Hadn't they always succeeded in commerce, and part of that success meant accepting hostility? They had agreed to do nothing, for taking action might bring them harm.

That was what they had all agreed, and the watchmaker now saw, with absolute clarity, the fate to which they had consigned themselves.

"Schnell!" came the harsh voices of the three uniformed men stepping over the windowsill into his shop. "Filthy Jewish swine! Get over here! You are under arrest!"

The man did not protest. He knew it would only enrage these animals further. He knew that any resistance would be an excuse to use their truncheons on his old bones, and he doubted that his body would hold up any better than his storefront window had. He knew that the only thing to do was go along, and pray for the best.

He thought of his favorite nephew, Irwin Mann, who lived in Danzig and sold produce and tinned goods. He had always hoped Irwin would prosper as he had. Now look who's the prosperous one he thought bitterly. He did not know that in four years his nephew would be 'relocated' to Warsaw, and soon find himself faced with a similar problem. Young Irwin Mann, however, would respond in a very different manner than had his uncle.

The future of his nephew and the role that the young man would play in history was only one of the many things that the watchmaker did not know. He did not know that in addition to being arrested that night, he would also be fined for damage to his own shop. He did not know that there would be twenty thousand others like him arrested in the next forty-eight hours. He did not know that he would never again be a free man.

He most certainly did not know that within a year, he would weigh less than half his current sixty-eight kilos, that most of his fingers and toes would have been lost to frostbite and gangrene, and that when he finally died of internal bleeding, he would have lived the last seven weeks of his life as a blind man.

He did not know, but would come to learn, that he would soon spend the rest of his life, (all sixteen months of it) in a facility not twenty kilometers northwest of his Munich watch repair shop, just outside a town on the Amper River. The town was a small one, over five hundred years old, whose previously innocuous name had recently taken on a sinister air whenever Germans spoke of it.

The watchmaker shared a fate with almost a quarter-million of his countrymen and every single one of his relatives who was still in Germany as of November 9, 1938.

He was going to Dachau.

January 3, 1939 "All rise. District Court, Western District of Arkansas, Fort Smith Division, is now in session, Judge Heartsill Ragon presiding."

"You may be seated. First case, UNITED STATES v. MILLER et al. Mr. Gutensohn?"

"Right here, your Honor." The defense lawyer from Fort Smith stood up. Paul Gutensohn was a smallish man with thinning black hair who wore round, wire-rimmed spectacles. His quick movements and his sharp, prominent nose gave him a slight hawklike appearance.

"Your Honor, if it please the Court, my clients, Mr. Miller and Mr. Layton, are guilty of no crime whatsoever. Their arrest under Section 11, 48 statute 1239, is clearly in violation of their Constitutional rights for two obvious reasons. First, the so-called National Firearms Act, though presented as a revenue measure, is clearly a Federal attempt to usurp power reserved to the States. This should be obvious as the so-called 'tax' of two hundred dollars is greatly in excess of the value of the arms on which it is levied. Second, the National Firearms Act of 1934 is completely in conflict with the second article to our Constitution's Bill of Rights. To wit, '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.'

"Inasmuch as both Mr. Miller and Mr. Layton are able-bodied and between the ages of sixteen and fortyfive, they are clearly members of the Militia of which the framers of our Constitution spoke. Further, unlike the Fourth Amendment against 'unreasonable' search and seizure, the Second Amendment makes no mention of 'reasonable' infringements on the people's right to keep and bear arms. The article states that this right shall not be infringed, period. There is no way to interpret our government's attempts to levy a tax of two hundred dollars on any weapon which can be used to defend oneself and one's freedoms as anything other than a gross and willful infringement on the people's right to keep and bear arms.

"Mr. Miller and Mr. Layton are guilty of nothing more than exercising their Second Amendment rights. Indeed, the arresting agents reported that both my clients obeyed all orders given by the agents, and that at no time did either of the defendants threaten either agent in any way, with or without the weapon in question. In fact, the agents both admit that the shotgun in question was found by one of the agents on the seat of Mr. Miller's unoccupied vehicle when the arrest was made.

"Accordingly, I have 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 You have the demurrer before you, your Honor." Gutensohn sat down.

District Judge Heartsill Ragon looked at the slender man and his two clients. He had read the demurrer already, and it had been a rare experience for him. He could not recall the last time that he had felt so strongly in this particular way about a case presented before him. He had seen numerous cases where the arresting officers had lied, made up charges, manufactured evidence, and beaten suspects into confessing.

This case was not like that. The Treasury agents who had arrested the two men had behaved properly in every possible way. Their arrest procedures had been straight out of the textbook. The problem with this case was why the two men had been arrested in the first place. Judge Ragon knew that the reason the Treasury agents had followed the defendants was to catch them making liquor without a license. He also knew that due to bad luck, there hadn't been any moonshine to be found when the agents had sprung their trap.

But the agents hadn't let the men go. No, the agents had acted in a reasonable and prudent manner when they had arrested Miller and Layton for being in clear violation of a Federal statute.

The problem with this case was that defense counsel was exactly right. The Federal statute, the National Firearms Act of 1934, was absolutely and unquestionably in violation of the Second Amendment to the United States Constitution.

Judge Heartsill Ragon paused a moment to reflect on the men in the Federal legislature who had created this piece of legal garbage. What kind of person would propose that a man be put in prison for five years based on the length of the weapon he carried to protect himself? What kind of person would expect the man to pay twenty times the value of the weapon to the Treasury for each such weapon he owned to avoid going to prison, and then pay the $200 again when he sold the gun? What kind of legislature had agreed to this insanity?

The law was even worse than this case would indicate, the judge reflected. He had taken the time to read all the provisions of the 1934 statute, and Judge Ragon had been amazed at what he had seen. In addition to throwing people in prison if they didn't pay $200 taxes on ten-dollar guns, the National Firearms Act put people in prison if they failed to pay $200 taxes on three-dollar sound mufflers. This was a cruel addition to an already terrible law.

Judge Ragon had spent his adult life studying the law and had not fired a gun since his service in the war with Spain in 1898, but that was not the case with his three brothers. All three of the now middle-aged men had fired guns their whole lives. And all three were now almost completely deaf, and there was nothing that any doctor could do about it. What was next? wondered the judge. $200 taxes on knives?

Judge Ragon took a deep breath and looked at the U.S. District Attorney, C.R. Barry.

"Mr. District Attorney?"

"Your Honor, the National Firearms Act of 1934 is not in any way in contravention with our United States Constitution. The defendants were found transporting a sawed-off shotgun in interstate commerce. Neither defendant disputes this fact. Nowhere in the United States is a sawed-off shotgun of the type transported by Mr. Miller and Mr. Layton issued to members of the military. Accordingly, it is entirely reasonable that the Treasury enforce the National Firearms Act as a revenue-raising measure, and demand that those who are in violation of it be sent to prison, just as we tax liquor producers and expect those people who make illegal alcohol products to be sent to prison."

The judge smiled at the D.A., but it was entirely without humor. "Mr. Barry," he said in a resonant voice, "there is no mention made in the Constitution about making whiskey. There is a very clear mention made of the right to keep and bear arms. You may be entirely right that our government does not issue our soldiers shotguns of the exact type that Mr. Miller had in his truck. However, you are forgetting everything you were taught in grade school civics class." The District Attorney turned crimson at this barb.

The judge went on. "A militia, by definition, is a group of citizens who use their own weapons for defense of themselves and their freedoms. We cannot throw them in prison or fine them five thousand dollars for failing to have exactly the same type arms as are carried by the National Guard or any other branch of our standing army, or expect them to pay two hundred dollar taxes at the whim of the Treasury merely to exercise their Constitutional rights."

"But, your Honor..."

"Mister Barry, I have carefully reviewed this 'National Firearms Act' of yours, and it imposes the same five year prison sentence and $5000 fine on interstate transport of automatic weapons as well." The District Attorney got a sick look on his face. He knew where this was going. "Tell me, Mr. Barry. Are you familiar with the Browning Automatic Rifle, the model 1918 BAR?"

"Yes, your Honor."

"So am I. In fact, my son carried one in France at the very end of the Great War. A marve lous weapon, and one he could well have used at the beginning of the war and not just the end. In fact, the BAR is a weapon which I wish / had had when I fought in the war with Spain in 1898. And, Mr. District Attorney, the Browning Automatic Rifle is, I believe, currently issued to U.S. soldiers and members of the Arkansas National Guard, is it not?"

"I believe so, your Honor."

"Mr. Barry, if the Treasury agents had found a BAR and not a shotgun in Mr. Miller's truck, would they have arrested him for violating the National Firearms Act?"

"I can't say what the agents would or wouldn't have done, your Honor."

"I'll rephrase the question, Mr. Barry. If the agents had arrested Miller and Layton for possessing a Browning Automatic Rifle without having paid a $200 tax and without possessing the stamp-affixed federal order form as per this National Firearms Act, would you be prosecuting them under the National Firearms Act as you are now doing?"

The District Attorney licked his lips. How the hell do I answer this one?

"Well, Mr. Barry?"

"They would be in violation of the Act, so yes, I would prosecute them, your Honor."

"And if I happened to have a Browning Automatic Rifle at home in my bedroom, the very same type weapon that my son carried proudly defending our country in 1918, and if this weapon in my bedroom was not stolen from a government arsenal, but rather one that I had bought with my own money from the Colt factory in 1920 so that I would be prepared to act as a member of the militia, or to defend myself from an abusive government should the need arise, and if I had brought this BAR here to my Arkansas bedroom from my former residence outside the state, would you prosecute me for violating the National Firearms Act and recommend that I be thrown in prison for five years, Mr. District Attorney?"

The D.A. was sweating despite the cool air in the courtroom. "Your Honor, I would never prosecute someone who has not been arrested."

"And if I were arrested, Mr. District Attorney? Should I then go to prison for five years, pay a $5000 fine, and be disbarred, according to you and your National Firearms Act?"

"Your Honor," he said, holding his hands palms up and pleading with the judge, "the Treasury agents would never arrest you."

"Why not?" thundered Judge Ragon. Because I'm a judge? Because I'm not a moonshiner? Mr. District Attorney, I see no exemptions in this National Firearms Act for judges or any other categories of 'the people', to which our Bill of Rights refers. Do you?"

"No, your Honor," Barry said softly.

"I didn't think so. I believe you understand my position, Mr. District Attorney. Mr. Gutensohn," he said, addressing the defense lawyer, "the demurrer you filed is accordingly sustained. The National Firearms Act of 1934 violates the Second Amendment to the Constitution of the United States." He banged his gavel once upon the bench. "Case dismissed. Mr. Miller and Mr. Layton, you are free to go."

Paul Gutensohn stood up. His heart was racing. There was no feeling like this one. Winning a case on a technicality or insufficient evidence was one thing. This was so much better. He, Paul Gutensohn, had seen that the law which had been applied to his clients was in fundamental violation of their rights, and he had made it stick. A piece of illegal Federal legislation had been struck down because of his efforts, and his efforts alone. This was better than money. Hell, he thought recklessly, it's better than sex.

Jack Miller and Frank Layton stood in front of him. They were wearing their best clothes, which was to say they each looked a little more shabby than the people in the back of the courtroom. Miller twisted his hat in his callused hands. He was obviously relieved at the decision, but also anxious about what he wanted to tell his lawyer.

"We made it, didn't we?" Gutensohn said, clapping Miller on the back with a broad grin. Jack Miller looked slightly embarrassed.

"Mr. Gutensohn," Miller began awkwardly, "I never did feel right about you agreein' to do all this work on your own just 'cause you thought what them Fed'ral men done wa'n't right. I didn't have no money when we first talked, and you said no matter. Well, that ain't the way I ever done things. Here," he said, thrusting his hand out to the lawyer. "It pro'ly ain't what you got comin' to you, but it's all I got. It ain't been stole."

Paul Gutensohn took the handful of bills. He had seen this happen before. Sometimes it was five or ten dollars in ones, sometimes a side of beef, a slab of bacon, or fresh vegetables from a client's garden. The lawyer looked at the money, and was startled to see it was six twenty-dollar bills. This is probably the most money this man has ever had in his hand at one time in his entire life Gutensohn thought. He looked up uncertainly at Miller.

Jack Miller gave an embarrassed smile. "I figure it's a sight better'n goin' to prison, V havin' my family left with no way to get by. An' it's less than what them Fed'ral men said I was s'posed to give 'em back in '34 to keep my gun."

Gutensohn smiled and nodded once. Miller looked relieved, and quickly put on his hat. "We got to go," he said quickly, and he and Frank Layton walked out of the courtroom.

Paul Gutensohn picked up his valise and looked around the courtroom with satisfaction. His step was light and his pace even quicker than usual as he walked out of the building and into the chill January air. Normally he hated cold weather, but for some reason it felt invigorating today. He looked up into the clear blue sky and fingered the bills in the pants pocket of his grey suit. It's great to be alive he thought happily. '"Morning, Paul. Welcome back to our wonderful Arkansas weather."

"Right. I was thinking I should have stayed in Mississippi. What did I miss while I was off being the dutiful son? Did you sell our practice?"

"I wish. No, it's been pretty quiet around here. Got one lover's quarrel late last week. Guy belted his lady friend, cracked her jaw. Her dad's making her press charges. I'm representing Romeo, if it ever gets to court."

"What's your defense?"

"You know, typical shouting match that went a little too far, 'this is the first time it's ever happened, your Honor, don't throw my client in the jug, he has a steady job and will of course make restitution, blah, blah' the usual drill. Oh, I almost forgot. Just after you left-that case you nailed just after New Year's on Constitutional grounds? The Feds have appealed it to the Supreme Court. I tried for almost a week to track down your buddy Jack Miller, but the guy's vanished, and no one has a clue where to find him. Same with that Frank Layton. The notice is right there, on top of your pile of mail."

Paul Gutensohn sighed as he picked up the Notice of Appeal. This was the last thing he wanted to hear first thing on Monday after being out of the office for two weeks. He looked at the court date for the case: Thursday, March 30. Three weeks. He folded the document and put it back in the envelope.

"So what are you going to do?"

"I don't know-try to find out where Miller is, I guess. Although I doubt he'll be up for another round in court, especially a thousand miles from here in Washington, D.C. I can't say as I have any burning desire to hop on a train and pay for a hotel room for Lord knows how long. Whatever Mr. Miller's desires might be, providing I can find him, I don't think paying my expenses are within his budget, to say nothing of the actual legal fees."

"You going to file a brief on his behalf? Mail it to 'em?"

Paul Gutensohn sighed again. This was starting to give him a headache. "I don't know. I ought to, but you know the rules. The U.S. Supreme Court won't accept typed briefs. They're above all that. For them, you have to get your briefs printed. I'm not eager to pay for that out of my own pocket, either. I think we're at the point where we're not going to do these charity cases any more." He thought for a moment before continuing. "I'll try to get hold of Miller or Layton. Maybe I can convince one of them that paying for a little more of my time and effort is good insurance against having their case overturned."

"You think the Feds have much of a shot?"

Gutensohn shrugged. "I don't think so. Ragon laid it out pretty plainly in his Western District ruling. That National Firearms Act is garbage. Completely unconstitutional. You know, I think maybe they passed it because with Prohibition gone, all those Treasury agents needed something to enforce." He chuckled to himself. "You ever hear of our government laying a bunch of their own people off?" His partner laughed out loud.

"Ever since our current president seized power, I haven't been able to keep up with the alphabet soup of three-letter government programs. And you know, that Socialist bastard would never have managed to get any of his schemes passed into law without packing the Supreme Court first. What's that they're saying now-something like, 'Become a Roosevelt Democrat-it beats having to find a real job'?"

The partner's tone became more serious. "To answer your question, Paul, no, I can't imagine the Treasury Department laying off three-fourths of its agents just because there isn't the Volstead Act to enforce any more. They have to have a bogeyman to go after. I looked at your case, though. It was ironclad. I don't see how the Supreme Court could reverse, even if King George himself were Chief Justice."

Paul Gutensohn's partner did not know it, but he had just delivered what would prove to be the worst legal opinion of his entire career.

"The Supreme court of the United States is now in session, Chief Justice McReynolds presiding."

"UNITED STATES v. MILLER et al. Mr. Gordon Dean for the United States. For the appellees...?" Chief Justice McReynolds looked around the courtroom. No one volunteered to speak for Jack Miller or Frank Layton, because no one was there on their behalf. "Well, then. Mr. Dean?"

Gordon Dean took a deep breath. He had prayed that no opposing legal counsel would show up, and when he had learned that no brief had been filed, he realized that his prayers had been answered. An opponent to challenge what he was about to say would have doomed his argument. Without opposition, there was a chance he could squeak by. All it would take was some creative manipulation of the facts, and some monumental omissions.

"Yes, your Honor. If it please the Court, the District Court's prior dismissal of this case and ruling that the National Firearms Act is in contravention to our Constitution has no rational basis in the law. The National Firearms Act levies a tax on the interstate commerce in sawed-off shotguns, and affixes a Federal stamp to the order as proof that the tax has been paid. Mr. Miller and Mr. Layton transported in interstate commerce a sawed-off shotgun without having in their possession a stamp-affixed written order for the firearm. That fact is not in dispute.

"The weapon that Messrs. Miller and Layton transported in interstate commerce, a double-barrel Stevens 12-gauge shotgun having a barrel less than 18 inches in length and bearing serial number 76230, is not issued to any military entity anywhere in our country. To say that this weapon is part of any well-regulated militia is utter nonsense."

Gordon Dean knew he had just stretched the truth about as far as he ever had in his professional life. Shortbarreled shotguns had been used in every military engagement in the last fifty years, but what Dean had actually said was that serial number 76230 was not government issue, so it wasn't a lie. That's what the lawyer told himself, at any rate.

The U.S. lawyer looked into the eyes of each of the Supreme Court Justices and felt a trickle of sweat run down his spine. He was searching for any sign that one of these men had seen military service, and had used a shotgun with a barrel shorter than eighteen inches. If any one of them has, he's going to skin me alive Dean thought. He pressed on.

"The National Firearms Act is, once again, a revenue-raising measure. It raises monies for the Treasury by levying a tax on certain weapons. Mr. Miller's right to keep and bear arms was in no way infringed. He was merely required to pay a tax on a weapon that has no relationship whatsoever to a militia. Mr. Miller could have paid this tax, and he would have committed no crime. He also could have chosen to transport a different weapon across state lines, such as a military rifle, and again, he would have committed no crime. He failed to pay this tax, and then transported the NFA-controlled weapon in interstate commerce. This is a crime, pure and simple. You have the Government's brief, your Honor."

Gordon Dean held his breath. He was dreading the inevitable question about the National Firearms Act also restricting interstate commerce in automatic military arms. He also dreaded the question of how a $200 tax on a $10 gun could be anything but an infringement on the right to keep the weapon. As he stood there in front of the U.S. Supreme Court, he could not help but think about the purpose of the Second Article in the Bill of Rights.

The Second Amendment is a recognition of the danger of standing armies. Its purpose is to recognize that every citizen has the right to keep and bear the same type of basic arms as a soldier in a modern military. A militia embodies all able-bodied men over the age of sixteen. Therefore, a militia will always outnumber a standing army by at least twenty to one. If this militia is armed with weapons similar to those used by the individuals comprising the standing army, it will be impossible for that standing army to inflict the will of a tyrannical government upon the people. The Second Amendment is the guarantee behind all the other articles in the Bill of Rights. It is the ultimate guarantee that citizens in the United States will remain free.

Gordon Dean waited for the Justices to look at the wording of the National Firearms Act and ask him, based on his own arguments, how the Act could restrict private commerce in not only Stevens shotgun serial number 76230, but also the exact weapons currently issued to infantrymen in our military.

I'm not cut out for lying to the Supreme Court. This isn't what I had in mind when I went to law school he thought. Thank God there's no opposing counsel to bring out the truth. He was beginning to feel physically ill.

The question from the Justices never came.

World events were coming to a head. The Munich Conference had been held eight months earlier, and British Prime Minister Neville Chamberlain had made his famous claim of having secured 'Peace in our time' by acceding to Hitler's demand to occupy western Czechoslovakia with German troops. Although most Americans did not even know how to spell Czechoslovakia, let alone care what happened between it and Germany, in three and a half months the little man with the toothbrush mustache would start the invasion of Poland. America would soon agree with Winston Churchill's assessment of the seriousness of the Axis threat.

Those national sentiments were months in the future on this Monday in May, however. On this spring morning, the Supreme Court would issue a ruling that virtually no one at the time would notice. Further, the ultimate results of the decision would not fully be felt by U.S. citizens for many decades.

The Court had spent considerable time reviewing the government's brief in the case. It was not often that a district court ruled that a federal law was unconstitutional. It was even rarer that one of the participants not even show up to argue its side of a Supreme Court case, or file a brief on behalf of the client.