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The strange case of United States v. Miller

By Dr. Michael S. Brown
web posted August 6, 2001

In a recent letter attacking Attorney General Ashcroft's gun policy, Senator Dianne Feinstein (D-CA) misquoted a section of a 1938 Supreme Court decision known as United States v. Miller. Gun rights advocates loudly protested and offered the correct quote which is more favorable to gun rights.

The Miller case is important, because it was the last time the Supreme Court ruled directly on a Second Amendment defense. It is unusual in that people on both sides of a political debate claim that it supports their position. Some say that it reaffirms an individual right to own firearms and some say it does just the opposite.

With the extreme polarization of the modern gun debate, this case has assumed an importance far beyond what anyone expected in 1938. It should come as no surprise that behind this strange state of affairs is a very strange court case.

The story begins with the National Firearms Act of 1934, which was the first federal law regulating firearms. Prior to that time, it was generally believed that the Constitution did not grant the federal government this power

The Firearms Act levied a prohibitive $200 dollar tax on machine guns and sawed off shotguns. Government officials claimed that these were the weapons of choice for the criminal gangs that evolved during prohibition.

This law was enacted during a period when a determined effort was being made to expand federal police power at the expense of the states. A crafty legislative tactic of that time was to construct new federal criminal laws as commerce measures, which could be justified as revenue producers in the event they were challenged by supporters of state's rights.

Some have speculated that the 1934 Firearms Act was passed to provide job security for federal agents who were threatened with unemployment by the repeal of alcohol prohibition in 1933.

Like most criminal cases, U.S. v. Miller involved some rather unsavory characters.

Jack Miller, a bank robber and moonshiner with many enemies, felt the need to carry a sawed off shotgun without paying the tax. He and his associate, Frank Layton, had the misfortune to be caught transporting it from Oklahoma to Arkansas and were arrested in June of 1938 by federal agents on charges of violating the Firearms Act.

They were brought before United States District Court Judge Heartsill Ragon in Fort Smith, Arkansas who encouraged them to plead not guilty and appointed an attorney to represent them. He then found in their favor, declaring that the relevant section of the Firearms Act was in violation of the Second Amendment and therefore unconstitutional.

Federal law enforcement authorities were not pleased. Judge Ragon's decision threatened the expansion of federal power, so the case was quickly appealed to the Supreme Court.

The resulting decision issued in May of 1939 stated that "in the absence of any evidence" the Supreme Court could not say that a sawed off shotgun had any relationship to the militia. The critical point here is the absence of evidence.

The record shows that no arguments were made and no evidence presented on behalf of Jack Miller or the Second Amendment. The Justice Department attorneys were able to present their case without any opposition.

Miller had no resources to finance his argument against the government's appeal and it is doubtful that he had any interest in defending Constitutional rights. In fact, he died before the decision was rendered. His body was discovered in April of 1939, with multiple .38 caliber bullet wounds. His own .45 pistol lay by his side with four rounds expended. Perhaps he had a legitimate need for that shotgun after all.

Frank Layton must have decided that it wasn't his job to act as a constitutional test case. After the government's successful appeal, he entered a guilty plea and was placed on four years probation by the original Judge Ragon.

Today it seems bizarre that a Supreme Court case could be decided without the court hearing both sides of the argument. Yet this was the perfect opportunity for advocates of greater federal power to advance their agenda. With no opposition, they could not lose.

But the right to keep and bear arms was too deeply enshrined in American culture for the court to bury it completely as modern gun control advocates like Senator Feinstein would have us believe.

The Supreme Court opinion, written by Justice James Clark McReynolds, was notable in that it did not completely cave in to the government demands. It is a rather short document that is easily available on the web, so you need not accept another person's opinion about it. Read it yourself.

The court finding simply said that no evidence had been presented to prove that a sawed-off shotgun was a useful military weapon. Of course that was literally correct, since Miller's side never showed up in court.

After stating the court's opinion, McReynolds included passages from various historical sources to show that the militia consists of all able-bodied men who have a right, perhaps even a duty, to own firearms suitable for military service. There was little reason to include these references unless McReynolds wished to protect the Amendment from further encroachment.

The case was returned to the lower court where Miller, if living, could have made further arguments on his own behalf. He could have easily and correctly argued that short-barreled shotguns had been popular military weapons in the trenches of the First World War. It was lucky for the federal government that he was dead.

The end result was a confusing decision that is often used to support both sides of the gun rights debate. The anti-gun lobby can say that it permits reasonable regulation of firearms. Gun rights advocates can say that it supports the right to own military style weapons. With this unsatisfying legal precedent by the highest court, it is no wonder that the court system has not taken the Second Amendment seriously.

Beginning with Cases v. United States in 1942, the court system conducted a steady degradation of the Second Amendment that was often based on misinterpretations of the Miller case. Each time the Miller opinion was distorted by a lower court, the new opinion became part of case law and made it easier for the next case to further erode Second Amendment protections.

Since judges are generally members of society's elite, it is not surprising that they would be hostile to the idea of ordinary people bearing arms for personal defense or to protect against tyranny.

Law schools ignored the Second Amendment, because it was not politically correct. Students were told that it was not worthy of study, as it applied only to the obsolete right of states to form militias. The few idealistic lawyers who challenged the prevailing view quickly discovered that this was not a smart career move.

It was not until the 1990's that legal scholars began to conduct serious research into the intent of the Second Amendment. The overwhelming majority has concluded that it does indeed guarantee an individual right to keep and bear arms. This is gradually becoming more difficult for the legal establishment to ignore.

Legal experts say that sometime in the next few years the Supreme Court will end its half-century of neglect and once again rule on a Second Amendment case.

U.S. v. Miller will no doubt be mentioned countless times in the media and it will be misrepresented almost every time by self-serving politicians and biased or poorly informed journalists.

Just remember what a strange case it was. ESR

Dr. Michael S. Brown is an optometrist and member of Doctors for Sensible Gun Laws. He may be reached at rkba2000@yahoo.com.

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