US v. Miller (1939)

Was this the case as predicted by” Brutus” in 1788:

"... It appears, that the expense of attending suits in the supreme court will be so great as to put it out of the power of the poor and middling class of citizens to contest a suit in it."

Or, was Miller already dead at this point?

He may not have been dead, but, his case having been dismissed by the court below, he was at least no longer interested, and had departed for parts unknown. His attorney was, as I understand it, involved in a hot political race, and it would not have looked good for Gutensohn to be on record as trying to get a cheap thug off.

So, neither Miller nor Gutensohn had any interest in pursuing the case.

Miller, at least, had no interest in or knowledge of the fact that his case would essentially vacate the Second Amendment for the next seventy years. I doubt the SC itself understood how far reaching its relatively limited and opaque decision would be.

Disclaimer: Not a lawyer, just a citizen trying to understand the rules I'm supposed to follow.

Ah. Here's Glenn Reynold's paper on Miller: "Telling Miller's Tale".

There's another great Miller paper out there which I cannot find right now. If I come across it, I'll post the link.

DJ: Why should you follow the rules? We the People set up rules for the government to follow and even wrote them in unambiguous terms. Those we elect to serve us haven't obeyed us, the REAL masters, for a century and a half. They have even decided against common sense and porper behavior that they have the authority to interpret OUR rules, which as subordinates of the Constitution, they do NOT have.

No subordinate is empowered to define a superior. Neither Congress nor the Executive nor the Judiciary have any legitimate power to interpret, define, or otherwise decide what the Constitution means. They are all created by the Constitution, do no exist without the Constitution, and are subordinate. Having the power to define, interpret, or otherwise decide what the Constitution means requires that the party so doing be superior to the Constitution. There is only one superior party, We the People. The entire system has been one grand lie for a long time.

It is now time to awaken and take back the stolen powers.

Tiocfaidh ar la!

The BIG question is WHY the Supreme Court continued with a case with no defense? Sounds like they wanted a case where they could rule as they did, without having to worry about anything.

Another question. How is it possible that a case without a defense caused such a presendent? How many SC cases didn't have a defense? How many of those were used as Miller was?

Miller always stank to high heaven. The fix was in.

What was the court supposed to do? Imagine Chicago just refused to show up for the McDonald case, does the court ignore the petitioner and allow the lower court ruling to stand?

Have you people even read miller? Have you swallowed the anti-gun interpretation of Miller? Miller didn't vacate the Second Amendment. Miller wasn't opaque. It didn't stink or cause bad precedent. It is very clear that Miller was only about banning criminal type weapons, like sawed off shotguns. Miller explained that everyone capable of bearing arms was the militia and that they were expected to report for duty bearing arms supplied by themselves. It was the lower courts who invented a twisted interpretation of Miller that caused all the trouble. They turned the opinion of Miller, that the type of weapons protected must bear a reasonable relationship to preservation or efficiency of a well regulated militia, into the idea that the possession of the weapon must be militia related. That twisted idea clearly wasn't in Miller and the Miller court declined to adopt that idea even though it was promoted by the government's brief.

This isn't just my biased interpretation of Miller. In the first lower court opinion to interpret Miller, the First Circuit Court of Appeals wrote that the rule from Miller by itself would protect possession of machine guns and lots of other standard military equipment. The opinion then went on to say it would be a bad idea to follow the rule from Miller in that case, and they went on to convict the guy for bearing a pistol anyway. So even courts that didn't like Miller admitted what it meant, until a short time later when the twisted interpretation of Miller was invented.

The only bad thing about Miller was that it didn't recognize the right to arms for private self-defense. But hey, if you can whip out your machine gun when you need it, things aren't so bad.

Critic - do you remember offhand the name of that "first" First Circuit Court of Appeals opinion to interpret Miller?

Federal Farmer - my thought exactly. There were some fishy things about Miller, but the SC making a decision based only on one side's brief isn't one of them.

Here's a link to the Peculiar Story of US v Miller. Well worth the read: http://www.kc3.com/pdf/PECULIAR_STORY_US_V_MILLER.pdf

The case I was referring to was Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert.denied sub nom., Velazquez v. U. S., 319 U.S. 770 (1943).

The court wrote in part:
"Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns,..."

One thing I want to know - where was the NRA when the Miller case was making its way through the federal system? Was the head of the NRA a "New Dealer" who did not want to get in the way of Roosevelt? Yeah the NRA did not get political until the 1970s, but come on, this case merited at least an amicus brief, if not full-on paid legal representation for Mr. Miller.

Khan

The president of the NRA at the time of the debates on the NFA supported the NFA. I'm too tired to look up the sources, but FDR's AG orginally sought a pistol ban as well. The recorded comments of congressmen, senators, the AG and even the NRA president read like Foghorn Leghorn pontificating as to why people didn't need guns... okay, maybe a shotgun to shoot ducks or engage in some plummy sport but not pistols and what became Title II firearms.

There was enough push back based on sensibility in Congress that the idea of a pistol ban was dropped. The NRA represented the genial old tweed-wearing "sportsman" view.

Of curse, like the 1920s-30s British restrictions, these discussions centered around gangsters and undesirables because no one conceived that "the right sort" would ever be affected.

Any GOA types that are disgusted with the modern NRA would gag at the level of cheerful accomadation that was displayed in 1934.

Part of the reasoning in Miller was that short shotguns were "not" suitable for military use and therefore not protected under the 2nd. Also their interpretation presumed that the ancillary clause was the prime clause, another presumption that was and is wrong, otherwise they could not have written the opinion they did until they established that the "militia" clause was the prime mover.

That was patently wrong since the trench gun, a short barrelled shotgun was used by us extensively in WWI. Therefore we either must believe the SC was abominably ignorant or had evil intent. I vote for evil intent.

Even if it had been accepted that the militia was the only enabling wording in the amendment to protect citizens right to keep and bear arms, their reasoning still fails. I vote for evil intent.

FWB: I didn't say I follow the rules; I said I try to understand the rules I'm supposed to follow, because that amounts to looking for the trip-wires, knowing my enemy, that sort of thing.

Critic: I didn't say the SC vacated the 2nd amendment; I said Miller's case vacated it. And it did, in the lower courts, in exactly the way you describe, because it wasn't clear enough.

"SHALL NOT BE INFRINGED. Now piss off." That's what they pretty much had to say, to lay the matter to rest, and instead they mumbled on about just how tacticool, exactly, are short shotties, anyway? Have the court below check that out, and get back to us, kthksby.

And the case died, unsettled. The court wanted to vacate the 2nd, but they were honest enough that an unresolved muddle was the best they could manage.

Oh, and while reading things into other people's comments way beyond what they meant, who's sawed-off shotgun you calling "criminal", huh? I've seen it argued many times, here and elsewhere, that they were in fact in tactical use at the time, and that they are every bit as useful a tool for the law abiding self-defender as they are for the trench soldier or crook. You, and the Court, have made Zumbo's mistake, trying to identify what kind of gun we should be allowed to have. ["So there. ptphptphptph."]

The decision says, "held:

"1. Not unconstitutional as an invasion of the reserved powers of the States....

"2. Not violative of the Second Amendment of the Federal Constitution...."

I think this goes a long way to underpinning a charge of "muddled". The Court agreed with all you said about the militia, and yet could not bring itself to say, flat out, that the NFA violated the 2nd. That looks like beaucoup wiggle room to me.

Gaesc: Thanks, "The Peculiar Story..." was exactly the article I was thinking of.

Frye makes it clear that although the Miller made Critic's points, it didn't so flatly and boldly enough. It provided way too much wiggle room -- as it was supposed to.

(Frye also mentions that Miller himself was alive at the time, he died later, unmourned and unsung.)

You all might enjoy "CAN THE SIMPLE CITE BE TRUSTED?" by Brannon Denning.

Here's a short quote to give you the flavor of the article...

"Lawyers, judges, courts and the government in general have come under increasing suspicion from those citizens who believe many of these same elites manipulate the system at the expense of the "common man." It is this sort of distrust that breeds the resentment that manifests itself in what historian Gordon Wood termed "out-of-doors" political activity--private militias and the so-called "common law courts" are two contemporary examples. By staking their prestige and power of judgment on a position that citizens do not accept and new scholarship shows to be untenable, federal courts that continue to nonchalantly dismiss the Second Amendment, disingenuously citing Miller as their authority, do so at the risk of their legitimacy."

This is the kind of legal crap that one could expect out of a third world ceaspool not the United States.

Just a couple of points for the record: “ trench mortars, anti-tank or anti-aircraft guns,..." were not restricted until the 1968 gun control act, and “trench guns” usually have 20 inch barrels ( the bayonet mount distinguishes the “trench gun” from the “riot gun” ) and are collectibles not NFA arms