March 17, 2005

As He Told The Miller's Tale: Problems With U.S. v. Miller

It's apperently "reprint older posts" week around here. This one is a critique of the misinterpretations of U.S. v. Miller. I had once considered making it a monthly feature but how many times can I point out that Miller was decided inadequately & has subsequently been misunderstood?

Now I am not the first to tackle the problems with Miller: Brian Puckett wrote a piece entitled United States v. Miller and Short-Barreled Shotguns which I would encourage you to read. (He has more modern examples of shotgun use in the military - with pics!) I've previously touched on Miller here & here But for my own reference felt a more in depth refutation of Miller was necessary.

Many federal courts rely on U.S. v. Miller in which the Supreme Court remanded a case back to the District Court that had overturned the National Firearms Act of 1934. The District Court agreed with Miller that the NFA violated the 2nd Amendment. Justice McReynolds delivered the opinion of the Supreme Court that the weapon in question, a shotgun with a barrel of less than 18", was not known to the court to have use in the militia & therefore the NFA didn't conflict with the 2nd Amendment.

Most federal courts since then have misconstrued this to mean that unless a person was actually serving in a state militia with a state approved weapon then the 2nd Amendment is inapplicable to them. This is flawed simply because the findings in Miller did not state or even imply such a conclusion. In fact Miller went to great lengths to establish that "militia" meant every person capable of serving in the common defense.

Before I get into the Supreme Court's decision in Miller there are a few facts I would like to point out about the case. First of all a gentleman named Patrick L. Aultice compiled all the available information on Miller that he could find. [Note: That link doesn't seem to be working at the moment. I'll try to insert a valid link when I find one. In the meantime here's a link to the District Court decision in Miller. Note: Here's the google cache of the non functioning link. Thanks to Bill of The Freeholder for providing the link.] It contains every document from the district court's grant of bail to the Supreme Court decision itself as well as a brief summation of Jack Miller himself.

It should be noted that Miller was indicted twice for the same violation of the NFA; once on June 2nd, 1938 & again on September 23rd, 1938. In the first instance a demurrer to the indictment listing 5 items was filed on June 11th, 1938 with a memo opinion from Judge Ragon on June 11th, 1938. In the second instance a demurrer to the indictment listing 6 items was filed on January 3rd, 1939 & a memo opinion was given by Judge Ragon on January 3rd, 1939. In Mr. Aultice's chapter on Jack Miller, he mentions that Miller originally plead guilty but the judge advised him to withdraw his plea & he appointed counsel for both him & Mr. Layton (who was indicted along with Miller). I think if you have an interest in the case you'll find all the documents & summaries provided by Mr. Aultice interesting, but I'll leave it to you to click on the link above for the detailed story.

This is Judge Ragon's opinion as stated on January 3rd, 1939:

"The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time 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.

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, '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 demurrer is accordingly sustained."

That & the demurrer itself are all the Supreme Court had to go on from the defense. They did not submit a brief or attend oral arguments.

The briefs from the government in objection to the lower court's ruling were very detailed. Common law was cited as far back as 1686 in England to support the idea that restrictions on arms were justifiable. What they failed to do was demonstrate that the 2nd Amendment sought to adopt the common law of England in its restrictive view of the Right to Arms. But oddly enough the Supreme Court decision itself fills in many gaps that the government left in its briefs concerning militias.

This is an excerpt from Miller where Justice McReynolds states his overall findings concerning the case:

"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"

He then goes on to explain the Congressional power concerning the militia that was granted in the Constitution & concludes that

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

He then continues about the militia:

"The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, 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."

Justice McReynolds spends a great deal of time in discussing the history & purpose of a militia:

"Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out 'that king Alfred first settled a national militia in this kingdom' and traces the subsequent development and use of such forces.

Adam Smith's Wealth of Nations, Book V. Ch. 1, contains an extended account of the Militia. It is there said: 'Men of republican principles have been jealous of a standing army as dangerous to liberty.' 'In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.'

'The American Colonies In The 17th Century', Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England-

'In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to [307 U.S. 174, 180] cooperate in the work of defence.' 'The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.' 'A year later (1632) it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony (Massachusetts).'

Also '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. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers."

He then continues with examples of regulations concerning militias in the states before he concludes:

"Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

In the margin some of the more important opinions and comments by writers are cited. 3 [307 U.S. 174, 183] We are unable to accept the conclusion of the court below and the challenged judgment must be reversed.

The cause will be remanded for further proceedings."

Justice McReynolds never mentions that Miller was not a member of a state militia & therefore had no standing. Rather he concludes that the weapon Miller had was not of a benefit to the militia, but he even left that open by mentioning that it was not within judicial notice.
Now once again here's the relevant passage of Miller:

"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"

Matters of fact are usually left to the trial court, unless it is something very obvious such as the capital of Oregon or the allegation that a river runs from the upper midwest to the Gulf of Mexico or that cars use gasoline. But what is curious is that the Supreme Court at the time had two justices with prior military experience, three if you count a newly appointed justice who recused himself from the case due to his missing the oral arguments. From this page the JPFO put together on Miller I found the following:

"...Two of the Court's members had seen military service, Justice Hugo Black as a Captain in the Field Artillery in 1918 and Justice Felix Frankfurter as a Major in the Army's Legal service. Justice William O. Douglas, who did not take part in the decision, had been a private in the U.S. Army in 1918."

So it should have been possible that at the least Justice Black had some exposure to the military's use of short barreled weapons. From the same article from the JPFO we see numerous examples of the military use of short barreled weapons.

"The British issued a Sea Service flintlock blunderbuss with a 16-inch brass barrel, circa 1760..."

Jumping to the Late Unpleasantness 'Twixt the States:

"The degree to which barrels were amputated depended upon the whim of the cavalryman, or was dictated by battle damage sustained by the gun. Thin gun barrels were often dented or bent. Since weapons were scarce, the damaged portion was simply cut-off to restore the gun to action. This resulted in the discovery that shortened guns were more controllable while mounted; therefore, they were better suited for fighting purposes."

& further:

"In 1861, the Federal government purchased 10,000 Austrian-made carbines (KammerKarabiner, Model 1842). This muzzle-loading .71 caliber firearm resembled a shotgun: it had a 14.5" rifled barrel and no bayonet...The government issued three types of ammunition for this carbine: buckshot and ball combined, ordinary buckshot, and round balls..."

& from WW1:

"...The Ordnance Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers..."

But it is entirely possible that none of the justices were aware that short barreled shotguns not only could be of use, but had & currently were in use by the U.S. military.

Now Article 1 Section 8 of the U.S. Constitution provides in part for Congress to have the authority to:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water..."

A letter of marque is defined at as: "a letter from a government formerly used to grant a private person the power to seize the subjects of a foreign state" & more specifically: "authority granted to a private person to fit out an armed ship to plunder the enemy (usu. used in pl.) (often used in the phrase letters of marque and reprisal)".

Private citizens were granted permission to engage an enemy nation on the seas. Now if any of you have ever spent time aboard any ship you'll understand what a commodity space is. A short barreled shotgun or rifle, not to mention a belt fed machine gun, would be the preferred weapons aboard any ship. I am sure that the U.S. Navy employed shot barreled weapons, including shotguns, aboard her vessels & it would be foolish to conclude that given the options we have today short barreled automatic weapons as well as shotguns would not have been coveted by the early American Navy.

The same part of the Constitution also states that Congress is empowered:

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions..."

Up until the mid 1800's the military (including the militia) was expected to perform the same duties as police officers do today. & considering that in most states citizens have power of arrest when they see a felony or other dangerous crime being committed it would not be unreasonable to conclude that weapons similar to what the police departments use would be well suited to the private citizen. If you weren't aware police departments & other law enforcement agencies do use short barreled shotguns among other NFA weapons.
The justification used in Congress to pass the NFA was that certain weapons such as short barreled shotguns were particularly suited to criminal use. Criminals did use them on occasion. But this points to a another class of people at whom the sale of short barreled shotguns was targeted: law abiding citizens.

Miller was decided foremost on an inaccurate assumption of fact: that short barreled shotguns had no militia use. It's obvious to anyone with more than a moderate knowledge of firearms that literally any weapon is suited to militia use, just as any weapon is suited for criminal use, or police use. It is not the type or design of the weapon that determines their suitability to a specific class of person, but the intent of the individual wielding the weapon.
Moving on to Justice McReynolds finding of law, I cannot begin to fathom how he would have (if indeed he would have) justified the NFA once he was shown that the short barreled shotgun, as well as all other weapons covered by the NFA, do in fact have a use for the militia. But let's just forget that point of fact for the sake of argument.

Justice McReynolds states that, "...With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." The preceding part of his statement merely recited the powers Congress was granted concerning the militia.

So the continuance & possibility of an effective militia was considered the reason for the amendment & all interpretations must be consistent with that goal. To which I must point out that the militia was to be called forth to "...execute the Laws of the Union, suppress Insurrections and repel Invasions". Justice McReynolds states a little later on that "...The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia--civilians primarily, soldiers on occasion."

The same weapons useful for one of the purposes would be useful for the others, providing the wielder of said weapon was proficient with them. Naturally a belt fed machine gun would be useful in repelling an invasion, but also in suppressing a riot or to stop or discourage looters during a black out. & equally a short barreled shotgun would be useful in repelling invaders, as it would be in suppressing a riot or discouraging looters during a black out. The same could be said of any weapon as long it was used by someone who knew its strengths & limitations.

If a person one day finds himself behind a belt fed machine gun, or a short barreled shotgun in the course of his lawful duties within the militia the type of weapon he has will do him little good if he is not properly trained in its use. So if the 2nd Amendment must be interpreted with the goal of keeping a well trained militia capable of acting for the public defense, then the courts must strike down laws which impose burdensome fess or other restrictions on the individual obtaining & practicing with weapons suited to militia use. That would encompass all weapons as a militia may find itself in what we today would consider a military combat role; a military peacekeeping role; an irregular military role; a general police role; or a specialized police role (such as a SWAT team).

A militia was expected at the time to perform the duties of soldiers as well as policeman. Fighting an invading army is the most common thought of use for the militia, but fighting an oppressive government, suppressing insurrections, enforcing laws, controlling & dispersing riots, as well as helping an area during & after a natural disaster would all fall under the duties of the militia. That these duties have been neglected is bad for us not just because of the misunderstanding surrounding the 2nd Amendment, but because our obligations to our communities, states & country have been neglected along with them.

I believe Justice McReynolds own findings established that the militia is any able bodied person capable of acting in the public defense. But I will add a few quotes from those around at the time of the Revolution as well as some who lived to see the Constitution ratified:

"A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." - Richard Henry Lee, Additional Letters from the Federal Framer (1788) at p. 169

"It is reported that the Governor has said, that he has Three Things in Command from the Ministry, more grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed." - "ABC" (PSEUD., SAMUEL ADAMS)

"The said Constitution be never construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, during Massachusetts's Convention to Ratify the Constitution (1788).

"The people are not to be disarmed of their weapons. They are left in full possession of them." - Zachariah Johnson, 3 Elliot, Debates at 646

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people." - Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788.

"No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion." - James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses [London, 1774-1775].

"The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..." - James Madison, I Annals of Congress 434, June 8, 1789.

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

"The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States....Such men form the best barrier to the liberties of America" - Gazette of the United States, October 14, 1789.

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." - James Madison, The Federalist Papers No. 46 at 243-244.

"...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights..." - Alexander Hamilton speaking of standing armies in Federalist No. 29.

"The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops." - Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787).

You get the idea: the militia was thought of as the body of the people that were capable of bearing arms. The law that currently defines the militia in the United States can be found at 10 U.S.C. ยง 311. While it only includes males between the ages of 17 & 45 I would say its safe to say that with the case law concerning equality between the sexes that women should not count themselves out of the militia just yet. & it should be noted that whether this age range is applicable depends entirely on the occasion for which the militia is called up; should a hurricane ravage a town along one of our coasts or an invading force attempt entry at our borders then I would think the time honored definition of "any able bodied person capable of acting" would be what's required.

& I'll beg your forgiveness as the next bit of information I was going to present isn't where I thought it was. It's a case the Supreme Court decided in the early 1900's or possibly the last decade of the 1800'2. The name escapes me but it was a tax case & it more or less held that taxation must not be for any regulatory purpose but solely for raising revenue. I'd kindly ask for anyone who recalls the name of this case to drop me a note as I don't expect anyone to merely rely on my word that such a case exists or that it found what I say it found. So if you'll pardon the lack of citation I'll submit that a taxing measure must not be for regulation: its sole purpose must be to generate revenue.

I must ask, is a $200 tax on a short barreled shotgun (which prior to the NFA sold for between $10 & $40) something that you would do to generate revenue? I could possibly see a tax of 10% or even 50% of certain items, but 200%? & instead of requiring a tax stamp that is transferable without any further oversight, a request for permission for the tax stamp, as well as much paperwork must be delivered to the government & your request could very well be denied. Further in 1968 all weapons in existence that fell under the NFA & that were not registered & taxed were declared contraband & wouldn't be able to be registered after a grace period ended. In 1986 all newly manufactured weapons were prohibited from being added to the registration. I realize these last two things happened long after Miller was decided, but can there be any doubt about the NFA's purpose being one other than taxation?

To further that I offer you this testimony from the congressional debate concerning the NFA in April & May of 1934. In it Mr. Frederick (President of the NRA) discusses his views on the proposed NFA. Several times it is mentioned that the purpose of the bill is a regulatory measure under the guise of a revenue measure & towards the end there is open discussion about the goals of the legislation, which is to target gangsters.

In Murdock v. Pennsylvania it was found that:

"A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution."

So even if on the surface the NFA was a revenue raising measure it would not be applicable to possession of firearms. I would offer that a sales tax as is common to other items similar in value & collectible at the retail purchase of a firearm would not fall under the provision of Murdock, but I cannot see how a $200 tax on items that at the time were as cheap as $2 (sound suppressors) & currently could still be half the value of the tax (single barrel shotguns are commonly available for $100) would not run afoul of Murdock.

The militia is comprised of the people which would include anyone capable of acting in the militia. To preserve that militia the individuals who comprise it must be able to own & train with suitable weapons. Given the wide range of duties the militia may be called up for any weapon may have valid militia use. Short barreled shotguns & all other NFA weapons would have militia use & are in current use with the military & police forces of the U.S. A tax law must be designed with the sole purpose of revenue & not regulation. A Right guaranteed by the Constitution may not be taxed or licensed.

Because of these conclusions the finding of the lower courts that the 2nd amendment relates to a collective, rather than an individual Right & that Congress has the authority to regulate firearms is absurd & is not supported by the facts or the law.

Posted by Publicola at March 17, 2005 06:31 PM

Here's the Google cache of the compilation page:

Posted by: Bill at March 28, 2005 02:15 PM

Back in the early '60's Congress did all this and the judicial committee decided to stand firmly on an individual rights interpretation. They also differentiated between "Organized" militia, the so-called "Armed Bands" or State Guard type units, and "unorganized" militia, individuals utilising their individual right to keep and bear arms. The amendment says the "security of a free state" not the defence. It included , as the preface to the Virginia constitution stated, the "right to hunt, subject to reasonable restraints of season and limits of game taken, the right of self defense, and defense of the state. The Federal Supreme Court has ruled that the state constitutions are dependant from the Federal, excepting only that of Virginia's, from which the U.S. Constitution was copied virtually word for word. In effect, they are one and the same document, and the preamble of the Virginia document is binding on the Federal document.But, I've lost the damned reference to the Supreme Court ruling concerning the Virginia Constitution's unique relationship to the National Constitution. Can somebody help me out here? It totally changes the entire debate, and I could really use it. It's been thirty years since I saw it in a blue, two volume commentary on the bill of rights in the school library. Does that ring any bells?

Posted by: Ed Foster at March 28, 2005 05:31 PM

Many many thanks.

Posted by: Publicola at March 30, 2005 02:42 PM
Post a comment

Remember personal info?