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Briefing "schedule" on US v Miller

The Supreme Court case of US v. Miller (1939) is the only modern case (i.e., since Dred Scott) to say much about what the Second Amendment means. It's been noted (first by me, in a 1975 article) that only the prosecution filed a brief or appeared in that case.

I was just looking at the clerk's documents in the case. Compared to modern Supreme Court practice, where you have months to file a brief and prepare for argument, they paint an extraordinary picture of how things were done in days of yore.

March 13, 1939: Court notes probable jurisdiction (i.e., "takes the appeal").

March 15, 1939: Court writes defense counsel a one-sentence note, simply saying "Counsel should be here on Friday, March 31st, for argument of the case of [citations follow]." Sixteen days' notice! And counsel is in Arkansas, and this is before fax or Fedex, and mails appear to have taken quite three or so days to reach him.

March 22, 1939: Defense counsel writes back. Unable to understand, upon reading rules of Supremes, how it can be set this soon. Have not even received government's brief yet. Don't have printed record, either. Was appointed as counsel and will probably not be paid for it. Probably not possible to appear for argument, but would like to file brief.

March 25, 1939: Clerk writes defense counsel. Normally appellant is required to file brief 3 weeks before argument. "Toward the end of the Term cases are reached so promptly after preliminary consideration that it is very often impossible to comply with the rules as to the filing of briefs and the argument of the cases is not delayed for that reason." Understand gov't has given you a typed copy of brief, suggest you file yours this coming week. If not, we can continue argument to week of April 17. Should file petition in forma pauperis, signed by client under oath (Note: client had been released and apparently fled).

March 28, 1939: Defense counsel sends telegram to Court. "Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be able to present & argue case. Paul E. Gutenson."

[UPDATE: Yes, it's sad to think that a case of this import would have been rushed through in such a manner. Or assigned to McReynolds, who was not the brightest bulb in the pack. I mean, the Court then had Felix Frankfurter, Hugo Black, and a few others. Not to mention that the case could have used a little development at the trial level. The indictment was quashed with no evidence being taken. So, as the Supreme Court noted, there was no evidence whether or not the gun at issue (a sawed-off shotgun) was suitable for military/militia use. The Court just said it couldn't take judicial notice of that (judicial notice only applies where a fact is so obvious and indisputable that it need not be proven -- Richmond is the capital of Virginia, Nov. 1, 2005 fell on a Tuesday, etc.]

[ANOTHER: a law prof friend points out there is no record that Miller's shotgun was actually sawed-off. I'm just using that as shorthand for the NFA requirement, which is of registration of shotguns with barrels under 18" or under a certain total length (I think 27"). In practice, most guns of this brevity will have been cut down, but the NFA applies whether they left the factory that way or not, and does not apply, even if the barrel is cut down, so long as everything stays over the limits.]

· US v. Miller