In my previous post I noted that a commenter to a Lincoln Journal Star Editorial seemingly did not understand the true significance of U.S. v. Miller.
Miller has been used by the anti-gun panty-waists for decades to infer that the Supreme Court ruled that the Second Amendment is not an individual Right and that it only applies to the National Guard.
Since I have read and studied the "Miller Decision" extensively I have always failed to see the merit to that claim. At the end of this treatise there is a link to all of the documents that emanated from that case.
After reading it completely I also fail to see how anyone of average intelligence can make the claim that the Court held the Right to Keep and Bear Arms is anything but an individual Right.
In the Beginning
In September 1938 Jack Miller and Frank Layton were re-indicted for transporting a "Sawed-off" shotgun from Claremore, Oklahoma to Siloam Springs, Arkansas in violation of the National Firearms act of 1934.
Although Miller and Layton originally plead guilty, Federal Judge Heartsill Ragon on hearing the case suggested that they change their plea and appointed them representation.
Miller and Laytons attorney filed a demurrer to the indictment holding that the law under which they were charged was according to the Second Amendment unconstitutional. Judge Ragon agreed and so ruled.
The Governments Reacts
The prosecution in the personage of Clinton R. Barry et. al. appealed Judge Ragons decision to the United States Supreme Court. Barry's premise, was based on two parts;
- 1. That the National Firearms Act of 1934 prohibiting possesses of certain weapons without an appropriate tax stamp was Constitutional and,
- 2. That a short-barreled shotgun was a weapon only used by gangsters and desperadoes and had no legitimate use as a military/militia and/or weapon.
Barry also cited English Common laws dating back to the 1300's that forbade "riding or going about armed with dangerous or unusual weapons to the terror of the people" as proof that regulation of the "Right to Keep and Bear arms is permissible.
Authors Note: Barrys main assertion on English Common Law holds that "riding or going about armed with dangerous or unusual weapons to the terror of the people" assumes that people are/were terrified simply at the sight of such weapons. This was not the case "to the terror of the people" meant that the person possessing a dangerous or unusual weapon was threatening to use said weapon on or against specific individual/s. Possession is not a terroristic act, threatening to actually use it to the harm or death of an other was.
Barry incorrectly avers that pre-existence of the Rights retained by the people in the Second Amendment began only when those Rights were conferred to the people by English Royalty.
Barrys other assertion that the short-barreled shotgun was not a suitable weapon for military/militia use belies the fact that "Sawed-off" shotguns were used with much success by American forces in World-War I.
As was the original demurrer by Miller and Laytons attorney and Barrys subsequent appeal two in part so was the majority remand written by Justice James Clark McReynolds.
Authors Note: Miller and Layton were not represented during oral arguments before the Supreme Court, only the Government was present to make itself heard.
The Supreme Courts Speaks
In the first part as to whether the National Firearms Act of 1934 was Constitutional the Court issued the following statement;
...the objection that the Act usurps police power reserved to the States is plainly untenable.
Authors Note: In plain English they said the act was constitutional in that it did not effect powers reserved to the States.
Concerning part two of the matter before them the majority cited numerous references in early American law;
"Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs
....shall equip himself, and be constantly provided with a good fire arm,
...provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; . . ."
...that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
The Misunderstanding of Miller
Authors Note: This is where Miller has been so often misquoted and misunderstood. The Supreme Court clearly recognized that personal possession and acquisition of military/militia type firearms was not only protected by the Second Amendment, but laws stemming from it, enacted by the states actually required it.
The Court further stated that;
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.
Authors Note: The Court essentially said that you did not tell us that a short-barreled shotgun is or is not an instrument of the militia and we were not asked to determine such. The importance of that statement is the inference that the Second Amendment guarantees the Right to keep and bear arms. They wrote they could not say the Second Amendment Guaranteed the Right to Keep and Bear that one specific firearm.
Since, as I noted earlier that the "Sawed-off shotgun", "Trench gun", "Ally Sweeper" was so successfully used during World War I it is clearly more than a tool used only by gangsters and deparados avered by Barry. This statement by the High Court implies that had information been provided that the firearm in question has a legitimate purpose as an instrument of the militia they would have "decided" in Millers favor.
We are unable to accept the conclusion of the court below and the challenged judgement must be reversed. The cause will be remanded for further proceedings.
Authors Note: In their "decision" the Supreme Court did "decide" that the National Firearms Act of 1934 was not unconstitutional.
They DID NOT conclude that the Second Amendment was a Collective Right as many claim. They DID remand the case back to Judge Ragons Court to determine whether a "sawed-off shotgun" was a suitable instrument of the militia. Since Miller was not represented in oral argument before the court the Justice's in their opinion appear to have actually taken Millers side. Instead they remanded the case back to Ragon, a highly unusual move considering that Millers attorney was not present when the case was heard. They ordered Judge Ragon to rehear the case and determine whether the short barreled shotgun was an instrument of the militia.
The Supreme Court "decision" on Miller emanated from their October 1938 Term. In April of 1939 prior to the remanded further proceedings by the Supreme Court Miller was murdered.
With Millers death the case died as well and the re-hearing ordered by the Supreme Court never took place.
Authors Note: Had Judge Ragon reheard the case and determined that the firearm in question was in fact a legitimate instrument of the militia on any re-application to the Supreme Court Miller would not be the controversy it is today. This reasonable inference is made based on Judge Ragons actions at the very beginning, as a Judge he advised Miller and Layton to withdraw their guilty pleas and appointed them legal counsel. Judge Ragon did not find Miller or Layton guilty or not guilty, he only ruled on a demurrer that the law under which they were charged was unconstitutional. That left the door open for Clinton Barry to appeal. The Supreme Court simply ordered that, because the National Firearms Act of 1934 was Constitutional Miller and Layton be re-charged and taken to trial. Had Judge Ragon held a trial and issued a likely not guilty verdict in the original instance the double jeopardy requirements of the Constitution would have never allowed it to get to the Supreme Court in the first place.
The "determination" that the Supreme Court ordered never took place. In that regard for all intents and purposes Miller is still an open case and until some court specifically rules that a "short barreled shotgun IS or IS NOT a suitable instrument of the military/militia Miller will never have been "decided".
Final note: All bold text is the product of this author for emphasis. I would also like to thank Patrick L. Aultice for much of the information that I relied on for this narrative. Pat has compiled in one place the most complete work on Miller as may exist.
He has published all of the official court documents relating to U.S. v. Miller on the internet and they can be read by anyone in their entirety here.