Supreme Court, Olde Chambers

The Forgotten Justice

James Clark McReynolds

& The Neglected

First, Second & Fourteenth Amendments

 

Roy Lucas Å

 

I. Justice McReynolds and the Missing Bill of Rights - in Brief…2

 

II. The Fourteenth Amendment According to James McReynolds…4

 

A. McReynolds & the Fourteenth Generally...5

B. The Fourteenth, Racial & Other Discrimination

according to James McReynolds...10

 

III. The First Amendment in the Mind of James McReynolds…12

 

A. Not Applied to the States...13

 

B. Ignored, Diluted and Subject to...13

IV. The Second Amendment & the Miller Case…14

 

A. The District Court did not Develop a Sufficient Trial Record in Miller...16

 

B. Jack Miller was Abandoned in the

Supreme Court & Denied Rudimentary Due Process...17

 

C. Justice McReynolds did not Adequately Examine the History or

Language of the Second Amendment in Miller...19

 

D. Reargument of Miller in the next Term Could Have Avoided the Inadequate

Decision of an Unargued Major Constitutional Question...33

 

E. The Enigma of the Ostensibly 8-0 Miller Decision...34

 

F. What were the Ultimate Miller Holdings, and Do they Matter now in 2004?...34

 

G. The Ambiguity & Subsequent Peculiar History

of Miller in the Courts of Appeal…35

 

V. Conclusions and Foretelling...35

Justice James Clark McReynolds

(b. 1862- d. 1946)

 

I. Justice McReynolds & the Missing Bill of Rights - in Brief

 

ames Madison as a Congressman worked long and hard to develop a uniquely American Bill of Rights to protect individual liberty from excessive government regulation. After initially disfavoring such a rights-enumerating Bill,[1] Madison assembled the many proposals from those suggested by State constitutional conventions. He offered up to the first Congress on June 8, 1789, a selection of the most important and passable.[2] The resulting ten amendments, after ratification, became our Bill of Rights. It is elementary that each Justice and all state court judges take a solemn oath to uphold those rights and the entire constitution. James Clark McReynolds did so on the morning of September 5, 1914.

The informative biographical dictionary edited by Melvin Urofsky - The Supreme Court Justices[3] - politely introduces us to one Justice McReynolds, of Kentucky and Tennessee, in this way:

 

In the annals of United States Supreme Court history, James Clark McReynolds is as well-known for his disagreeable nature as for his conservative, even reactionary, opposition to the New Deal programs ….[4]

 

Congress assailed McReynolds as Attorney General for his “postponement of a Mann Act prosecution of the son of a Democratic politician,”[5] inter alia, and for being impossible to deal with. President Woodrow Wilson responded by nominating McReynolds to the Supreme Court,[6] despite his well-known “irascible temperament.”[7] Instead of being denied appointment, or run out of town, McReynolds was elevated to our highest court for life. Such were the politics and relative values of the year 1914, that an impossible cabinet member might be booted upstairs to the high Court to get rid of him, or so the reasoning went.

 

n 1914 an Associate Justice position was not so prestigious and powerful as now in Year 2003-04. It was not uncommon for a distinguished lawyer to decline a possible appointment.[8] Judicial salaries were a fraction of the income for corporate counsel and eminent private practitioners, which today is still the case.[9] The Court was then still meeting in the basement of the Capitol.[10] Justices worked at home, with at most a single law clerk.[11] Surely, however, Wilson could have found a long list of better qualified prospective justices, as he did soon with Louis Brandeis. John W. Davis, then Solicitor General, was also an obvious choice.

Michael Parrish’s interesting biographical history, The Hughes Court[12], explains:

 

As president, Woodrow Wilson made two monumental blunders …. His second was the nomination of James Clark McReynolds to the Supreme Court in the summer of 1914, an elevation designed to remove the irascible Tennessean from his post as attorney general of the United States, where he had alienated subordinates, other cabinet officials, and members of Congress by his abrasive response to their criticism – most of it warranted.

 

I had thought there were three colossal Woodrow Wilson blunders, the worst being Wilson’s general effort to impose degrading racial segregation throughout the federal government in the District of Columbia,[13] but then I have a particular sensitivity to human rights violations, and today is ninety years post-Wilson. McReynolds would have been supportive of such segregation, as a good start on the road back to slavery. Wilson’s World War I diplomatic blunders are two world wars in the past, lost since forgotten, and overtaken by larger events.

 

Parrish reminds us further that

… Justice McReynolds also displayed an intolerance toward … those born female or into the Jewish faith. A thorough-going anti-Semite, he defied the Court’s ancient tradition by refusing even to shake hands prior to conference with Justices Brandeis and Cardozo.[14]

 

Such anti-Semitic anger from McReynolds likely carried over into mistreatment of Jewish lawyers, who were not scarce. The most celebrated was Louis Brandeis. A notable case in point may well have been that of young counselor Mr. Paul Gutensohn, post, in the 1939 matter of United States v. Miller.[15]

 

ames McReynolds took a solemn oath to “do equal right to the poor and to the rich.” He did not forget the latter. He then carried his abundant and deep prejudices onto the bench with him, as we shall see. His record on the Bill of Rights, the First and Second Amendments, and the Fourteenth, is as negative as one can conjure. Yet, the Senate confirmed him. The public paid him, and he took that for granted. He never returned a paycheck or proffered office rent. The McReynolds Lesson is a historical module to be studied and learned for its future value. The choice of Justices is a major responsibility of the President and the Senate. An individual Justice who does not take the oath and history seriously can do a great deal of damage to human rights in a quarter of a century on the bench, although s/he casts only a single vote at a time.

 

ustice McReynolds would serve the Nation, and his own interests, in his own way, authoring 503 opinions of the Court in the 27 years from 1914 to 1941.[16] The extensive multivariable study, Great Justices[17], ranks McReynolds among “the eight rated as ‘failures ….’ ” Few would disagree. Justice Stone is quoted as saying that “McReynolds has set the law of admiralty back a full century!”[18] There is bountiful irony in the fact that McReynolds “for many years would not speak to Justice Clarke, whom he considered stupid.”[19] Justice John H. Clarke, a liberal Wilson appointee who voted often with Justices Holmes and Brandeis, served the Court for only six years, and then retired to enjoy life by the sea in San Diego at the early age of 65.[20] He was bored by the subject matter at the Court. He lived 22 more enjoyable years to 87. The docket at the time was tedious by any standard, with such momentous matters as the Great Dog Licensing Case of 1920 that surely captured headlines in Cat Fancy, in that felines were exempt from licensure,[21] but man’s and woman’s best friend could be heavily regulated.

Life on the Court today is far more interesting than in 1914, with the then-endless parade of railway, banking, tax, municipal bond, dog, sheep, and insurance cases. The docket was spiced up occasionally by a tawdry Mann Act appeal,[22] a negligently operated elevator case, and the regular death and destruction of safety-challenged early industrial enterprises, especially the railroads.[23]

 

his article is not designed to dishonor James McReynolds, but to resurrect him for a moment, and many of his dark legendary works, as a historical lesson for us all. The present Court in 2003-2004 will surely revisit one of his most significant, high-impact opinions in the next term or two. We should remember Justice McReynolds for that reason alone. It is too soon to recall the specific case, or the issues, but it is surely a matter pertaining to the First, Second, and/or Fourteenth Amendments.

 

II. The Fourteenth Amendment According to James McReynolds

 

Amendment XIV quite generally forbids state and local laws that abridge privileges or immunities of citizens, deprive persons of liberty or property without due process, or deny persons the equal protection of the laws. James McReynolds concentrated on protecting property rights, and those of corporations, that have no more mention in the amendment than Chinese farm collectives.[24] He gave little content to “privileges or immunities,”[25] and less to equal protection.[26] He found in the due process clause a mighty fortress against state or federal infringement on corporate commercial liberties, property, and contract rights, even coercive agreements that today would be considered oppressive violations of human rights, even in the back streets and shops of rabidly free market Hong Kong.[27]

 

A. McReynolds & the Fourteenth Generally

James Clark McReynolds was born one cold dark February in Elkton, Kentucky, the day after Groundhog Day.[28] The Year was 1862, only six years before ratification of the Fourteenth Amendment. The Civil War would wind down, and Reconstruction would follow, with some of it nearby. Elkton was close to the Tennessee line.[29] He grew up as the privileged son of a patriarchal southern physician of means. The family was rigid and Scottish fundamentalist. His father adamantly opposed public education and nonbiblical thought.[30] McReynolds studied “science” with 99 other students at Vanderbilt in Nashville, such as it was in the 1870s & 80s. The Earth was still not everywhere considered spherical in those days. Lister[31] and Darwin[32] had published, but not been kindly received in Tennessee.[33] McReynolds did well by the standards of the place and day.[34] It is difficult to imagine “science” prior to modern solid state physics, electronics, chemistry, materials science & engineering, quantum mechanics, and molecular biology. He attended law school in the 1880’s at the University of Virginia for a little over a year.[35] No more was required of him to graduate at that time. With such a shortened legal education today, McReynolds might not qualify to take the bar and undertake complex legal work for clients. Woodrow Wilson had completed his law studies at Virginia only the year before McReynolds.[36] Wilson went on to become President of the United States.

 

cReynolds nonetheless practiced and taught commercial law in Nashville, Tennessee, for a number of years. He crusaded against gambling and prostitution, consistent with his fundamentalist other-judgmental upbringing. He was successful in removing Police Gazette from public sale and distribution,[37] despite the First Amendment. He would never apply that amendment in any event to the States, if he could avoid doing so.[38] McReynolds oversaw so many expansive Mann Act prosecutions as Attorney General, that he was still recusing himself from reviewing those convictions as late as Caminetti v. United States[39] in 1917. The cases expanded the Mann Act deeply into private morality, and well beyond transportation for enforced white slavery. Travel with a girlfriend or mistress became an often-prosecuted federal offense, if not chaste and, preferably at arm’s length.[40] We had our own Taliban then.

 

he initial Fourteenth Amendment due process property case before the Supreme Court, with Justice McReynolds participating, was in 1914, Missouri Pac. Ry. v. Omaha.[41] The City of Omaha presumptuously required railway companies, at their own expense, to erect a few overhead crossings, and to build viaducts according to city standards, in order to protect pedestrians from being flattened by big trains. Railway lawyers argued all the way to the Supreme Court that this municipal imposition was a compensable “taking” of their hard-earned corporate property, without due process of law. The unanimous Court found it was not. There was no violation of the Fourteenth Amendment. The railway received many public benefits. To require railroads to pay for crossings for pedestrians was a small price in light of those benefits and profits.

The Justices in this era were often unanimous. There was an unwritten code that discouraged public disagreement.[42] McReynolds, new to the Court in 1914, was not yet ready to dissent alone.[43] The few dissents in this period frequently have no explanation. The White, Taft, and Hughes Courts handed down unanimous opinions in upwards of 80-90% of the cases before 1936, whether the Justices were unanimous or not.[44] Justice O’Connor in her recent book, The Majesty of the Law,[45] devotes an entire chapter to exposing the Taft Court’s quixotic quest for unanimity. The figure of 84% has been cited,[46] as has the estimate that Taft himself suppressed at least two hundred dissenting votes![47] This was strangely done to enhance the institutional respect for the Court in the 1920s and 30s. In Year 2003 the practice is regarded quite differently, as suppression of important ideas and analysis.

 

oon in McReynolds’ tenure, a divisive due process freedom of contract issue arose. Kansas by law made it illegal for an employer to fire an employee who joined a union for needed benefits such as insurance and pensions. Corporations at that time paid minimal wages with few, if any, benefits, and often hazardous working conditions. One Hedges had declined to withdraw from the Switchmen’s Union of North America, and was fired.

The Court in Coppage v. Kansas[48] struck down the Kansas statute as a violation of the due process liberty of artificial corporate entities to contract with employees. Justice McReynolds voted with the majority because the Court enshrined principles that were essential to his mindset: “The principle is fundamental and vital. Included in the right of personal liberty and the right of private property … is the right to make contracts for the acquisition of property.” [Drum roll omitted.] The majority expressed bewilderment also: “[W]hat possible relation has the … Act to the public health, safety, morals, or general welfare?”[49] Let’s see. Hedges joined the union for insurance and other benefits such as higher wages and job security. Those enhanced his and his family’s health and well-being. How difficult is that to comprehend? The occasional public stereotype of unions as gangs using force has often obscured the fact that unions provided safer working conditions and benefits for workers that the managers denied and profiteers took for granted. As to evil wealth and corporate corruption, Enron has outdistanced all of the unions since the beginning of time. Boesky, Keating, and Millken are household words for unprincipled greed, although they were not union men.

Justice Holmes wrote in dissent that the Kansas law in Coppage was valid, and was needed to ensure fair contracts and more civilized equal bargaining. In his view, the earlier precedent of Adair v. United States and Lochner v. New York ought to be overruled.[50] Coppage expressed the views of Justice James Clark McReynolds with chilling and heartless precision.

 

cReynolds would have denounced the wartime Rent Control law in the District of Columbia in Block v. Hirsh.[51] A bare majority agreed with Justice Holmes to hold otherwise, particularly because the Act had been designed to serve the important public purpose of stable housing in the District in time of war, and prevent excessive profiteering and rent gouging during the crisis. The opposing writings illustrate a sharp division between property right absolutists and the majority that would allow some public regulation during dire necessity, as with the rent commission in that case.[52]

McReynolds also opposed comprehensive zoning laws. Those diminished the value of real property for some investors whose plans for wealth did not match those of city planners. The case of Village of Euclid v. Ambler Realty Co.[53] settled the question in favor of municipal rather than individual control. McReynolds dissented, but did not explain his views. The notion of city development subject only to the fancies of individual developers and landowners in the modern world is a bizarre concept to some. City planning by faceless bureaucrats can also produce more than an occasional oddity in a very crowded world.

 

In later October Terms of Court, McReynolds would have held the Social Security Act payroll tax unconstitutional. Steward Machine Co v. Davis.[54] He did not consider it an emergency that upwards of 16 million persons had been unemployed during the Depression. McReynolds later protested against other provisions of the Social Security Act in Helvering v. Davis.[55] He considered that Social Security provision violative of the Tenth Amendment.[56]

He further saw nothing unconstitutional about admitting evidence from illegal wiretapping. The government sought to do so in Nardone v. United States.[57] Yet, in a case from the then Territory of Alaska, Justice McReynolds did reach out slightly to prevent excessive searches of a home for evidence of beer and wine, in violation of National Prohibition. See United States v. Berkeness.[58] Uncharacteristically, he stated: “[T]he emphatic declaration that no private dwelling shall be searched except under specified circumstances discloses a general policy to protect the home against intrusion through the use of search warrants.”

 

Justices McReynolds and Holmes were often at odds, as in Casey v. United States.[59] The majority, per Holmes, barely upheld an unstamped morphine “purchase” conviction, based solely upon mere “possession,” without direct evidence of purchase or abusive use. McReynolds protested, stating: “The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.”[60] This reasoning could well be employed in other possessory offenses, including many involving firearms. Congress and the States all too often presume guilt beyond a reasonable doubt based upon mere innocent possession of items with many lawful uses. Firearms useful for home and business defense are a prime example. Holmes himself had written in 1916 that “it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Refining Co.[61] Yet, most possession crimes do precisely that, out of legislative and judicial over-inclusiveness.

McReynolds was rarely sympathetic to anything or anyone not named “Inc.” In several cases, however, he went far to rule for individual users of drugs, beer, wine, and liquor snuck across State lines.[62] Loose women, however, were never to be taken across any state border on his watch.

 

ustice McReynolds, during those 27 years on the Court, 1914-1941, left two Fourteenth Amendment “liberty” opinions, often construed to enhance fundamental human rights, as contrasted with commercial property rights, or the economic interests of corporations over persons.

That pair of opinions, still cited today, are Meyer v. Nebraska[63] and Pierce v. Society of Sisters.[64] One might, however, question the analysis and intent of Justice McReynolds in both Meyer and Pierce, in light of his underlying due process philosophy.

Pierce struck down a law requiring mandatory public schooling in Oregon between ages 8 and 16. McReynolds deemed this destructive of the powerful doctrinaire private and parochial schools. Those had been long ago established to ensure that persons between 8 and 16 would receive religious indoctrination generation after generation, to perpetuate organized religion, in case reason failed. McReynolds wrote:

 

Enforcement of the statute would seriously impair, perhaps destroy, the profitable[65] features of appellees' business and greatly diminish the value of their property.

 

One can only imagine his apoplexy if the appellant Society of Sisters had instead been one of Jewish schools, schools for black students, the venerable Tuskegee Institute, or then female-only Smith. Would the Brothers of Abraham have succeeded on the same facts with McReynolds? Probably not. McReynolds had far more bias than principle. The common thread in McReynolds’ opinions is one of his personal preferences, not the language and history of the U.S. Constitution.

The second case, Meyer, involved a Nebraska law making it a crime to teach any modern foreign language to children before the ninth grade, even in a private religious school. Again Justice McReynolds brought up “the right of the individual to contract” as one basis for decision:

 

German, French, Spanish, Italian, and every other alien speech are within the ban. Evidently the Legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.[66]

 

McReynolds might have argued more strongly that translators and multiple languages are necessary for travelers and international communication in a diverse world. McReynolds was not, however, a worldly man. He never crossed the Ohio, much less the Mississippi.

The Nebraska law disrupted the curriculum of private corporate and religious schools. It was a weak law in many respects,[67] especially as a criminal statute. Yet, Justice McReynolds felt compelled to emphasize the infringement on the right of teachers to “contract.” He deemed this right nearly absolute. Curiously, he would have diluted the First Amendment and equal protection clause to a trickle, in complete disregard of those constitutional objectives, which conflicted with his own.

 

n his mid-career years Justice McReynolds became a friend, perhaps a legend, for cat owners. He wrote for a unanimous Court in the great dog licensing case, Nicchia v. New York.[68] The Justice pointed out, without dissent:

 

Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the State ….[69]

 

Until now the canine and feline jurisprudence of Nicchia has been neglected by scholars. The trend may well continue.

 

astly, there is the matter of the Bill of Rights as a great charter for citizen protection. Aside from

property and contract rights for the rich and powerful, Justice McReynolds would never apply the Bill of Rights to protect citizens or other persons from State over-regulation. He joined the unanimous opinion of Chief Justice White in Minnesota & St Louis R. Co. v. Bombolis[70] to deny any right to a unanimous civil jury determination. The opinion states:

 

That the first ten Amendments, including of course the Seventh, are not concerned with state action and deal only with federal action.[71]

 

 

Arguably contrary to Bombolis is the 1897 case of Chicago, B. & Q. R. Co. v. Chicago.[72] The Supreme Court there upheld a nominal $1 jury award as just compensation to a railroad company for a city street built directly across the railway tracks. The first Justice Harlan stated for the Court:

 

[T]he Seventh Amendment … applies equally to a case tried before a jury in a state court ….

166 U.S. at 242.

 

Many earlier scholars completely missed the Chicago B. & Q. holding, or did not read that far. It appears to contradict the earlier decision in Walker v. Sauvinet.[73]

 

The Bombolis dictum did not last a decade,[74] and today is almost unknown. The broad error of Bombolis was no longer even mentioned by the time the Supreme Court decided Duncan v. Louisiana[75] and Benton v. Maryland.[76]

 

he final judicial vote cast by McReynolds in 1941 was to concur, without writing, in the dissent of Justice Stone in Hines v. Davidowitz.[77] He joined a States’ rights dissent, and was never again heard from in the U.S. Reports. He would not wait around even two days for United States v. Darby[78] which on his birthday, February 3, unanimously upheld the Fair Labor Standards Act of 1938. The views of James McReynolds on property and contract rights for the rich and powerful could no longer persuade a single vote. That was 62 years ago.

In death, however, as a final act of conscience, McReynolds left around $100,000 to Childrens Hospital in D.C., an act of kindness not shown toward many others. He left only token sums to those who had suffered in his employ for many years.[79]

 

B. The Fourteenth, Racial & Other Discrimination

According to James McReynolds

 

The first “race case” decided by the Court with Justice McReynolds participating came early in his 1914 tenure, McCabe v. Atkinson, Topeka & Santa Fe Ry.[80] Then Associate Justice Hughes wrote for a majority. Four Justices concurred only in the result – including McReynolds and Holmes. The case involved an Oklahoma statute requiring trains to have separate, but equal, accommodations for whites and blacks. The statute also required segregated station waiting rooms. This was the Oklahoma Separate Coach Law.[81] Blacks merely passing through Oklahoma on interstate journeys had been ejected from trains, even arrested and jailed under the statute after it went into effect. Five black Oklahoma citizens sued. There was not a well developed record[82] on the operation of the act, nor the five plaintiffs and their relationship to train travel. Poor lawyering has been the downfall of many a meritorious cause.

 

ustice Hughes, writing for a bare majority, found that the “allegations are altogether too vague and indefinite to warrant the [injunctive relief] sought by these complainants.”[83] There were simply no facts alleged or offers of proof that the five citizens had traveled or even requested the services that were denied. The Court thus sidestepped a very hot racial issue. The Justices blamed their abdication on the victim-class that was being denied its rights. The result is in sharp contrast to other Article III “ripeness” cases such as Epperson v. Arkansas,[84] and Evers v. Dwyer.[85] The latter was also a transportation-race case decided on the merits. Evers had boarded a bus only once in his lifetime, not for a ride, but to start that very litigation! The Court ruled: “A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability.”

 

ustice McReynolds actually declined to vote or absented himself from argument in certain race cases. Thus he more or less abstained in the Scottsboro cases,[86] including Powell v. Alabama.[87] He is quoted as typically referring to persons of color as “darkies.”[88]

McReynolds wrote separately and alone in the first law school race case, Missouri ex rel. Gaines v. Canada.[89] Although Missouri had no black law school, McReynolds opined:

 

For a long time Missouri has acted upon the view that the best interest of her people demands separation of whites and negroes in schools. Under the opinion just announced, I presume she may abandon her law school and thereby disadvantage her white citizens without improving petitioner's opportunities for legal instruction; or she may break down the settled practice concerning separate schools and thereby, as indicated by experience, damnify both races. (Emphasis added – no citations).

 

The Justice preferred to transport black law students into adjacent States, as some form of contraband or untouchable caste, likely in the back sections of trains and buses.

McReynolds did not, however, dissent in the race case of Buchanan v. Warley.[90] The Court there struck down a city ordinance forbidding persons of color from occupying houses in neighborhood blocks where the majority of residents were white. The personal rights to buy and sell real property were the surface issue. In his final year on the Court Justice McReynolds also joined a unanimous opinion by Justice Black striking a conviction of a black man who had been indicted by a state grand jury from which blacks had been systematically excluded.[91] By then McReynolds was barely functioning, but still drawing his salary and later his pension, paid for by black and white citizens alike.

In a puzzling ranching-mammal segregation case McReynolds dissented on behalf of sheep and shepherds in Omaechevarria v. Idaho.[92] The majority, in a memorable and nuanced opinion by Justice Brandeis, upheld a statute directing sheep owners not to allow sheep to graze on free national ranges previously occupied by cattle. The State proffered substantial scholarly-scientific evidence in a “Brandeis Brief” that sheep grazing made the land unfit for subsequent cattle grazing. Natural selection works in mysterious ways. McReynolds, however, was probably reasoning in a different way, to protect the property interests and liberties of sheep owners to use national range land freely. In his mind the rights of sheep trumped those of cattle, on a first come, first graze theory.

 

qual protection cases involving women and foreigners – “aliens” – also came before the Court

during the service of Justice McReynolds. He dissented alone in what has become the landmark case of Truax v. Raich.[93] The Court there held that aliens were entitled to the equal protection of the law, as “persons.” The Justices struck down a law requiring certain employers to hire 80% natives. Raich was an Austrian chef in Bisbee, Arizona. McReynolds in dissent considered this a suit against the State and wanted to overrule Ex Parte Young.[94] He did express the view, however, that “the challenged act is invalid.”[95] He posited no remedy. If Young were overruled, citizens would have little or no remedy in the independent federal courts against unconstitutional state action. That would stop those pesky §1983 suits.

McReynolds went along with the majority in MacKenzie v. Hare.[96] The decision validated legislation that simultaneously discriminated against women, foreigners, and the right to marry, in one fell swoop. Women who married aliens lost the right to vote. Men did not. Unwilling to be outdone by this jurisprudential triple play, McReynolds declared that the Court had no jurisdiction at all! MacKenzie today just might be decided differently, probably on gender discrimination and right to marry grounds, on the authority of Reed v. Reed[97], Loving v. Virginia[98], and similar persuasive cases.

 

III. The First Amendment in the Mind of James McReynolds

 

Justice McReynolds arrived at the Supreme Court in 1914 just in time for the initial motion picture censorship cases, a low point for the First Amendment.

The first such case was Mutual Film Corp. v. Industrial Commission,[99] decided unanimously, without even a dissent from Holmes or Hughes. Ohio in 1913 had enacted a law creating a board of government censors for the new-fangled motion picture films sweeping the Nation. The board was a classic prior restraint. Its existence and review procedures caused considerable delay. The censors reviewed each and every film offered within the State of Ohio in order to approve: “Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character ….”[100] The standard for review was sweeping in its reach and as broad as a censor chose to make it. A film clip that was not amusing might be censored. If we censored bad jokes today from the visual media, many comics, law professors, politicians, and most military personnel would be out of business.

 

he 1914 Court did not even consider First Amendment principles applicable because the film business was nonpolitical, for profit, and it might be used for “evil” purposes. As the Court stated:

 

[E]xhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded … a part of the press … or as organs of public opinion.

[Further, they are] capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition.[101]

 

The Mutual Film rationale was certainly in accord with the thinking of Justice McReynolds. He might have penned the opinion himself, if asked.

In 1915, motion pictures were perhaps as mystifying to many as was the Internet in the 1980s.

Even Justice Holmes was free-expression-challenged in these early years before Brandeis joined the Court. Holmes wrote for a unanimous Court in Fox v. Washington[102] upholding a Washington statute as applied to a publication – “The Nude and the Prudes” – that simply poked fun at prudes, and encouraged nudity, public and private. Some viewed nudity as indecent exposure, and its encouragement as criminal. Justice McReynolds joined that opinion as well.

Two years later, however, with Brandeis now sitting, Justice Holmes began to earn First Amendment credentials, but only in dissent. The Court in 1918 upheld a summary criminal contempt conviction of a newspaper and its editor in Toledo Newspaper v. United States.[103] The paper had simply questioned the bias and integrity of a federal judge hearing a labor injunction case. The statements were not made in or near the courthouse. There was no suggestion of reckless falsehood or intent to obstruct justice. The majority, and Justice McReynolds, however, found this area not within freedom of the press. By Year 2003 standards, the Toledo analysis only exemplifies the judicial imperialism of the past. Justice McReynolds surely believed in the corporate property and contract rights of newspaper corporations. Curiously, he would not uphold their explicitly guaranteed freedom of the press.

 

 

A. Not Applied to the States

 

Justice McReynolds was reluctant to uphold any individual free expression claim. Nowhere in his writings did he apply the First Amendment to the States. That is true as to most of the other amendments as well.[104] He dissented against applying the First Amendment to the States in Stromberg v. California.[105] In his final years, McReynolds in Hague v. CIO[106] would have upheld a ban on distribution of printed material and of meetings in public places. This was his view even for public discourse on the federal National Labor Relations Act. McReynolds dissented again in Schneider v. State.[107] He would not have permitted dissemination of literature in the streets and public places. Justice McReynolds did not elaborate these positions in well-reasoned written opinions.

 

s a parting shot against the First Amendment before leaving the Court, Justice McReynolds

dissented silently, without a word of explanation, and alone, in Thornhill v. Alabama.[108] He may have feared that the Court had been taken over in his worst dreams by a majority sympathetic toward human rights, free speech, and economic fairness. The Court in Thornhill applied the First Amendment to the States.[109] The Justices struck down an ordinance used to bar peaceful picketing in a labor dispute. By his final year, however, McReynolds had ceased to protest. He did not bother to dissent from the unanimous opinion in Cantwell v. Connecticut.[110] The Court there struck down as a prior restraint a New Haven requirement for a certificate of permission to sell religious books and pamphlets. This was among the first of the successful Jehovah’s Witnesses cases handled by the exceptional advocate Hayden Covington. As we shall see, several amendments had outstanding advocacy behind them, especially the First, Fourth through Ninth, and the Equal Protection Clause of the Fourteenth. The Second Amendment, however, was neglected by skilled Supreme Court litigators in the extreme. The Second is the Amendment that slept through the civil rights era.

With respect to intellectual diversity and expression, Justice McReynolds was a southern gentleman born long after his time. He surely would have preferred to be a Duke in the time of Charlemagne.

 

B. Ignored, Diluted and Subject to ...

 

In the context of federal law, the First Amendment on its face directly restricts Congress and its Acts. It allows “no law.” The Court begged to differ. Justice McReynolds agreed with the Court and ignored the rich history of the First and Fourteenth Amendments. He never met an individual First Amendment claim that he could tolerate. The time of World War I and violent revolution in many parts of the world, followed by the Great Depression, however, was not a good setting for testing the First Amendment. The Court certainly failed in its earliest incursions.

 

Schenck v. United States[111] is the oft-celebrated “clear and present danger” case we all study in law school. We forget that the decision upheld convictions and imprisonment for distributing mere printed circulars, not any violent or physically obstructive acts. The Court there agreed with the Espionage Act of June 15, 1917, as applied to circulars intended to influence men to avoid the World War I draft, trench warfare, and the debilitating effects of mustard gas. Such reasoning would thwart most war time dissent. The Justices empowered themselves to decide that a mere advocacy circular, or poster, or letter created a “clear and present danger” of actions that were not in the national interest, which was not peace. Later in the same year the Court upheld a conviction and ten year sentence for Eugene Debs.[112] He had delivered a speech opposing the war and protesting wartime recruitment. The Court was lashing out against “socialism,” an undifferentiated reaction not unknown today toward mere discussions of public health, employment, and education support, although not “corporate welfare.”

Later in 1919 Justices Holmes and Brandeis, but not McReynolds, dissented against conspiracy convictions of five Russian anarchists who, again, had in their possession printed circulars opposing the war and advocating a general strike of workers in ammunition factories.[113] There was no marketplace for such ideas in the worlds of the seven Justices, particularly not that of Justice James Clark McReynolds. The U.S. public for the most part greeted Marxist-Leninists with a yawn as well.

 

 

t was not until 1925 that the Court in Gitlow v. New York[114] was even willing to assume arguendo that the First Amendment applied to the States. The assumption made no difference in the outcome. The Court majority, and Justice McReynolds, stated: “Every presumption is to be indulged in favor of the validity of the statute.”[115] Forgetting that the First Amendment said “no law,” the Justices approved the legislative technique whereby a State legislature “previously determined the danger of substantive evil arising from utterances of a specified character.”[116] The State of New York was allowed to imprison another cell of socialists and suppress their “Manifesto,” whether anybody read it or not. Today the “Manifesto” would evoke a snore.

Let us move on to the neglected Second Amendment, where Justice McReynolds had a far more significant and lasting role. This was despite an opinion that might not get him past first year writing in any law school today. We will examine this case in some depth, since there has been no other Second Amendment opinion from the Justices since 1939.

 

IV. The Second Amendment & the Miller Case

 

 

he 1939 Supreme Court decision, United States v. Jack Miller, [117] authored by Justice McReynolds, is unquestionably the most significant opinion in our Second Amendment case law, for better or worse.[118] The entire matter, however, was hurried, with only two weeks total for brief and argument preparation. The case was seemingly railroaded against an unpopular defendant, and not even briefed or orally argued on both sides. Miller had no lawyer on the appeal. In fact, Miller was dead when the decision was published. His part of the case was not only unargued, but moot. Dead men, however, cannot effectively complain, much less ask for a rehearing.

The Miller opinion,[119] accordingly, came down, reversing the exoneration of the deceased. When studied carefully, one sees readily that the Miller opinion carelessly distorted or ignored altogether the highly significant history of the Second Amendment, and numerous constitutional authorities, as well as the factual background. McReynolds got some of the authorities right, but cited passages that were not even applicable to the right of the people to keep and bear arms. The Miller decision further has been used by lower courts in vastly varying and irregular ways, for opposing results, much too restrictively, and well beyond the core circumstances charged in Jack Miller’s indictment.

The late Mr. Miller was not accused of any violent acts, but only of (A) not having in his possession a “stamp-affixed written order,” for his short shotgun, and (B) not having “registered” the shortened 12 gauge shotgun, that he might well have needed for self defense.[120] The United States did not charge Miller with any wrongful use of his short shotgun. The Act presumes guilt by the mere “unstamped” possession, or failure to register, a shotgun of certain dimensions, not by any overt evil act with criminal intent. Registration is not a de minimis event. It can be expensive, personally very invasive, and leaves a paper trail enabling abusive authorities to disarm citizens with ease. It raises serious Fifth Amendment issues, which are not within the scope of this article.[121]

The gun in question has many legitimate defensive uses in the military, security, and self defense, especially the definitional one of defending a home or small business from robbery at close quarters. Lewis and Clark carried short shotguns, as illustrated post. Scholar Leonard Levy as a G.I. had a short shotgun in World War I.[122] Russian Cosmonauts routinely carry a short shotgun with them into space for landings in remote areas. It is an ideal defensive weapon against the wolves of Siberia.[123] McReynolds totally missed this point, which is well known to anyone with rudimentary knowledge of firearms. Long barrels are cumbersome for close range defensive use. The expression, “riding shotgun,” speaks volumes about the tradition of defensive shotguns. Historian Clayton Cramer observed in his criticism of Miller: “Expert testimony at trial would have established that such a weapon was a militia weapon. At least 40,000 shotguns were purchased by the U.S. Government for service in World War I, many being used as ‘trench brooms.’ ”[124] The charges against Jack Miller were not unlike accusing a person of inciting a riot, based upon bare possession of a book that discussed rioting. Such charges today would be invalid on their face under the First Amendment. The Second is an important right of “the people” and could also be interpreted as a fundamental protection, not neglected as it has been since 1939.

The balance of this article looks critically at Justice McReynolds, the Second Amendment, and the Miller precedent.[125] All factors taken into account, the Miller opinion may be one better set aside and rejected, as have been most of McReynolds’ views on the individual provisions of Bill of Rights.[126]

 

A. The District Court did not Develop

a Sufficient Trial Record in Miller

 

The government prosecuted Jack Miller in the U.S. District Court for the Western District of Arkansas, Fort Smith Division. Former Congressman (1923-33) District Judge Heartsill Ragon presided.[127] Appointed local counsel Paul Gutensohn represented Jack Miller and Frank Layton, apparently without compensation. Judge Ragon discouraged, and allowed the withdrawal of, guilty pleas that had previously been entered. One inference is that the judge wanted to hear and decide the specific Second Amendment issue. He had some expertise in the area, from his significant time in Congress immediately before passage of the firearms statute in question.[128]

 

ounselor Gutensohn accordingly filed a demurrer, or motion to dismiss the indictments. He did not proffer any evidence or develop argument on the core Second Amendment issues at the trial court level. Such evidence might have included the innocent purposes of the Miller trip, and the defensive uses of the shotgun in question, given dangers known to be facing Jack Miller. He had recently been a government witness against alleged armed bank robbers who had escaped and were considered rude and dangerous.

If Gutensohn had been clairvoyant, he might have answered the surprise questions that emerged in the appeal to the Supreme Court. Those included the military and non-criminal utility of the shotgun in question, and any relationship that it might have to militia use. Gutensohn offered no evidence or brief at all, not even the solo cite of an historical case or other constitutional authority, such as Madison, Adams, Blackstone, Rawle, Story, Kent, or Cooley. He was not able to write a brief or make the trip on such short notice, two weeks.

 

he district court opinion in Miller was but one paragraph.[129] That brevity frustrates any effort to examine the reasoning. In retrospect, Judge Ragon should have required substantial evidence, briefing, and argument from both sides on such an important and momentous matter.[130] An extensive trial record is a good thing to have, when attacking an Act of Congress, and arguing about a previously unconstrued constitutional amendment. Perhaps, however, there was no adequate library in Ft. Smith, Arkansas, in 1938-1939.

The federal Solicitor General – Robert Jackson - promptly appealed the Miller case directly to the Supreme Court.[131] Jack Miller had no lawyer for the appeal. Ultimately, he did not file any response, if he even knew the case was ongoing. The Court did not ask for a response. The Justices noted probable jurisdiction on March 13, 1939. Justice James McReynolds signed the order.[132] Under Year 2003 practice, S. Ct. Rule 25[1], Jackson would have 45 days from March 13 to file the government’s brief on the merits. That date would have been April 27, 1939. Appellate counsel for Miller would then have 30 more days to file a brief for appellee, until May 27. Id. The Court would thereafter most likely hear oral argument during the following Term, in October or November of 1939. Soon, however, all went awry for the defendant-appellees Jack Miller and Frank Layton.

 

B. Jack Miller was Abandoned in the Supreme Court

& Denied Rudimentary Due Process

 

Charles Cropley, then Supreme Court Clerk, mailed a letter to Miller’s trial lawyer Gutensohn on March 15, 1939, quite probably at the direction of Justice McReynolds, who already had a role in the case. Cropley stated that Gutensohn was to come to Washington for oral argument in United States v. Miller, October Term 1938, No. 696, on March 31, a mere two weeks thence.[133]

That time frame plainly allowed insufficient time for such a difficult undertaking. It may well have been a cruel ploy by Justice McReynolds, of the sort he enjoyed from time to time.[134] Aside from being over 1000 miles away in Arkansas, Gutensohn would have to research, draft, and arrange for printing of a full brief, responsive to that of Solicitor General Robert Jackson and the government team of eight experienced federal litigators. In addition, Gutensohn had to prepare for oral argument. He did not even have the Brief for the United States yet!

 

utensohn, surely perplexed, answered on March 22 that he had no copy of the government’s brief, or of the printed record.[135] Gutensohn advised that he was only court-appointed as trial counsel for Miller. He had not been paid at all. He surely had no Fax, computer, or e-mail with attachments. He did not even have the bare FindLaw.com! There were no videoconferencing facilities in Ft. Smith. On top of it, he was the bottom lawyer and sole associate in his firm of only three. Warner & Warner were the two partners above him.[136]

Mr. Cropley answered again, on March 25, five days before oral argument. He observed that the Solicitor General had now transmitted a typewritten copy of the government brief. Gutensohn was told to file his brief in the same way, at the beginning of the following week. Cropley volunteered that if time were not sufficient, the matter could be heard in early April, the week of the 17^th.[137] The following week, that of April 24, was on the printed schedule as the last week of oral arguments in the October Term 1938.[138] Cropley did not advise Gutensohn of this additional option. He also did not explain in any depth how to secure in forma pauperis status or to request other appointment of counsel.

 

aul Gutensohn responded on March 28 via Western Union cablegram:

 

SUGGEST CASE BE SUBMITTED ON APPELLANTS BRIEF. UNABLE TO OBTAIN ANY MONEY FROM CLIENTS TO BE PRESENT AND ARGUE CASE = PAUL E GUTENSOHN.[139]

 

He did not suggest[140] a postponement to April or further. He did not request appointment as paid counsel for these indigent defendant-appellees.[141] His “suggest” that the case be submitted on the government’s brief, however, with no brief at all for Miller and Layton, was plainly contrary to the interests of Miller, who was not yet even a client for appeal purposes. The telegram rings of a betrayal of those former clients altogether, made in haste and confusion. The case at this point was an impending disaster for the accused Jack Miller and Frank Layton. An inadequate, unargued Supreme Court decision against them was on the near horizon. Their Arkansas trial lawyer had jumped ship at the eleventh-point-nine hour. No Second Amendment organization existed to provide prompt capable legal assistance,[142] nor was there time. Public interest counsel of the caliber of Hayden Covington,[143] Abe Fortas,[144] Thurgood Marshall,[145] or Ruth Bader Ginsburg,[146] were not available.

 

ccordingly, on March 30, 1939, Jack Miller had no representation at the

Supreme Court oral argument, only an empty set of chairs. Chief Justice Hughes did not take the initiative to ensure that the case was fully argued by both sides. He did not appoint a lawyer for an actual two-sided reargument. There is no surviving record that anyone, but the Clerk, Charles Cropley, knew why Miller had no counsel. The innocent absence of Miller may have severely prejudiced his defense to the appeal, although in the end he was dead. His case was moot. That would not stop Justice McReynolds from upholding the statute and reinstating criminal charges against the deceased.

 

Jack Miller was found dead in Oklahoma even before the case had been decided.[147] The Miller outcome was a rushed, uneven 8-0 vote for reversal. His was a textbook case of ineffective counsel, prosecutorial-judicial railroading, and average-at-best judicial writing by Justice James Clark McReynolds.

 

ome say that Jack Miller was a black market distiller of spirits. Others recall that he had been an

alleged cover man for bank depletion jobs.[148] He was charged with nothing of the kind in Arkansas, not even littering. Even Justice McReynolds had stated in a separate opinion in Carroll v. United States[149] that: “The damnable character of the bootlegger’s business … should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted means ….” Depriving a person of counsel on appeal is a very effective means of ensuring defeat, dead or alive.

On top of it, Jack Miller may have had a solid “justification” defense to those federal firearm charges. He was a recently immunized witness against others involved with armed bank robberies.[150] Following their convictions, based in part upon Miller’s testimony, those men had escaped from prison. Some were still at large. Escape from imminent danger may well have been the rationale for Miller’s trip to Arkansas, and the reason for his being armed. Or he may have been going fishing in Arkansas bear country.[151]

 

 

Right to Appellate Counsel

 

Having no counsel in the face of a federal government appeal to the Supreme Court is not unlike being an amateur with short arms in the ring with Mike Tyson. The Court today tries to level the playing field. As Coppedge v. United States, explains:

 

[If] from the face of the papers he has filed, it is apparent that the applicant will present issues for review not clearly frivolous, the Court of Appeals should then grant leave to appeal in forma pauperis, appoint counsel to represent the appellant and proceed to consideration of the appeal on the merits in the same manner that it considers paid appeals. 369 U.S. 438, 446.

 

Coppedge was different in a way that helps Jack Miller. It was an appeal by a convicted federal defendant. Jack Miller was an exonerated no-longer-defendant who had helped put bank robbers behind bars at great risk to his own life. Miller had more of a need for counsel than Coppedge, but none came. The Court itself let him fall unrepresented. Justice McReynolds was not likely to have raised any alarm. Miller’s local lawyer Gutensohn could have telegrammed a plea for help, instead of a surrender. Presiding Chief Justice Hughes also, at the appointed time for argument, could have called for later reargument with counsel appointed. He did nothing but assign the final opinion to Justice McReynolds.

 

 

Ineffective Counsel

 

The circumstances of the appeal in Miller would today be considered a textbook case of ineffective representation. Decisions such as Roe v. Flores-Ortega,[152] and Penson v. Ohio[153] would entitle Miller to relief and appointment of a lawyer. Certainly his was a situation of “the forfeiture of a proceeding itself.”[154] It was more than that, the failure to offer any argument to uphold a fundamental enumerated constitutional right – the Second Amendment.

 

C. Justice McReynolds did not Adequately

Examine the History or Language of

the Second Amendment in Miller

 

 

Jack Miller was not likely a model citizen-appellee in the eyes of the conservative majority of Hughes, McReynolds, Roberts, Butler, Frankfurter, et al. In the lower court he had successfully challenged one of the first major federal laws on gun control, the National Firearms Act of 1934.[155] Congress passed the statute to control supposed bank robbers and bootleggers, even if the only proof of dangerousness was conjectural, an unregistered short shotgun without a stamp order, without a specific actual crime of violence, or any proof of wrongful intent. The hearing testimony is full of almost hysterical talk about John Dillinger and some 500,000 gangsters roaming from State-to-State in body armor.[156] Those individuals, probably a few hundred of them, would be the last to register their weapons and buy stamps.

 

ongress might have provided bank security guards with short shotguns, with minimal spray, and

bulletproof vests. Banks might have been made more impenetrable. Congress might have more vigorously enforced the laws against bank robbery itself. Those would have been more plausible options for deterring bank robberies. The common Gestalt of a gangster bearing a “sawed off” [buzzword] shotgun is, however, predominant in the atmosphere of gun and gangster fear. An 18-inch weapon would be lawful and need be neither registered nor stamped. A 17-inch shotgun was subject to the stamp requirement and registration. Any short-barreled weapon is plainly more maneuverable for defense and security purposes against multiple attackers. Such arms had been used in earlier times, to prevent the British from boarding our ships, and by Lewis & Clark for hand-to-hand combat with Indians looking for scalps, and grizzly bear along the Missouri and in the Rockies of Montana. Wolves in Siberia move in packs also, and have no respect for Russian Cosmonauts. We are lower on the food chain at times. Defenders using shotguns must simply avoid spraying beyond the pack in case of bystanders. Congress, however, did not think these issues through. A gun ban was easier to enact. Possession crimes are easier to enforce. Gangsters ignore such laws, so enforcement falls upon other citizens who keep weapons for defense.

 

The fundamental Second Amendment, however, loses in this process, and the Bill of Rights dies a slow incremental death. The Second Amendment says “arms,” not long barreled arms or state-sanctioned selected firearms. The Amendment says nothing about allowing burdensome stamp taxes and registration that can lead to a citizen’s door. The Founders fought against stamp taxes as an indirect method used by tyrants.[157] The recent biographies of Benjamin Franklin are a strong reminder that the Founders deplored stamp taxes, whether on a printing press, firearms, or tea![158]

While Justice McReynolds and the 1900s Court had faced no Second Amendment case prior to Miller, there was one significant right to keep arms appeal to the Court in 1914. McReynolds was then Attorney General, and surely aware of the case. The matter was Patsone v. Pennsylvania.[159] The Record and Briefs on Patsone are in the Library of Congress Law Library.[160] The case was arguably both poorly presented and wrongly decided. Holmes was not infallible, far from it, as the Fox v. Washington[161] and Buck v. Bell[162] cases broadcast to the world.

 

Patsone was an Italian immigrant to Pennsylvania. He settled outside of Pittsburgh, in a town that no longer appears on the map, Noblestown. His case is often neglected in the literature.^[163] Patsone is truly a right to keep and bear arms case, as much so as United States v. Miller.^[164] Today, Patsone is useful precisely because of its indefensible analysis and ruling, as a bad example that no intelligent jurist or other scholar should embrace or follow. It was pre-incorporation, and even pre-presumption of innocence. The course of proceedings indeed involved references to the right to keep and bear arms, and citations to cases explicitly involving the Second Amendment, Cruikshank[165] and Presser.[166]

Joseph Patsone was an Italian gentleman. He spoke little or no English. On October 19, 1909, an armed officer came into his home and arrested him for possessing a shotgun, period. A Justice of the Peace summarily tried Patsone later in the day, without counsel or an interpreter. He was fined $25, and the shotgun confiscated. Surely he was utterly puzzled and bewildered, or the Italian equivalent.

Patsone was not allowed the services of legal counsel for a defense, or an interpreter so that he might have some notion of what was going on. He could hardly put on evidence in Italian. Significantly, however, there was no prosecutorial evidence that he had ever hunted game or intended to do so.

The Pennsylvania Quarter Sessions Court ruled that the Act did not violate the Bill of Rights because “foreigners” could still possess revolvers and knives. That is called a non sequitur in reason, if not in law. The Second Amendment, however, does not say “some arms” that the State may pick and choose. It says “arms” kept and borne by the people. Pistols and knives are of limited defensive use. Shotguns, especially those with short barrels, are better for defending the home or business.

A local trial magistrate, Evans, J, next ruled that the statute did not violate the equal protection clause of the Fourteenth Amendment, because “foreigners” could be treated distinctly.[167] A chilling phrase is: "The power of the legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question...." Where is that in the Constitution?

The first trial court allowed the State to disarm foreigners of rifles and shotguns on the speculative thought that these might be used for hunting game food. No evidence was offered by the State to support the assumption, much less proof of a shortage of game.

Counsel for Patsone, a Mr. Marcel Viti, raised the Fourteenth Amendment, generally. The Superior Court cited Presser and Cruikshank. He did not preserve objections to the denial of counsel and an interpreter at the initial proceeding, although those would today be plain error. He also did not neatly raise, argue, and preserve a right to keep and bear arms argument up to the Supreme Court.

 

he Supreme Court of Pennsylvania affirmed per curiam on the Superior Court opinion. Patsone petitioned the U.S. Supreme Court for certiorari. He raised general Fourteenth Amendment due process and equal protection questions in his petition.[168] The opinion of Justice Holmes is history now. By today’s analytical standards, it is flawed in several ways.

 

olmes initially thought the statute to be minimally intrusive because: “The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defence.”[169] However, self defense by mere side arms is certainly not sufficient against multiple assailants or large charging animals. Holmes, a city man for life, had not likely thought this through. Neither the State nor Marcel Viti developed the record at any length. For all the evidence shows, Mr. Patsone had no means of self defense at all after the State summarily confiscated his shotgun.

Holmes also reasoned that the Pennsylvania legislature could assume without any evidence “that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent.”[170] Holmes added that the Court had no knowledge that such an assumption was “manifestly wrong.”[171] That was the core problem. The Court had no knowledge or evidence. They knew only that Patsone possessed a shotgun and was Italian. On that basis the Justices, in those less illuminated years, upheld as valid a law that deprived many thousands of individuals of a right of self defense, a natural right to keep and bear arms that was a significant part of the Fourteenth Amendment and common law history.[172]

 

Justice McReynolds, although Attorney General, would have had no quarrel with Holmes on the issues of the Patsone case at all. He especially might have approved the overt discrimination against and branding of Italians as excessive hunters. Today, the baseless assumptions made by Holmes seem unwarranted in the extreme.

 

The Text of the Second Amendment

 

“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.”

Second Amendment, U.S. Constitution

 

The Amendment is barely a legitimate complete sentence. It ends with a past-tense verb. It starts with a prefatory, explanatory clause. That clause is a dangling participle fragment. An English translation in modern usage might be:

 

“The right of the people to keep and bear arms shall not be infringed [because, among other reasons,]

armed skilled people can become a well trained militia when necessary

for security to defend our communities and keep them free.”

 

The independent clause, the “right of the people,” stands as a sentence on its own. It expressly acknowledges, or ratifies, a “right of the people to keep and bear arms.” It does not announce or embrace a right of the States. As with most provisions of the Bill of Rights, it concerns individual, not collective or States’ rights. That was the intent of James Madison in his presentation to the first Congress.[173]

 

he breadth of wording in the Second Amendment is also interesting. It does not say who may not infringe, federal or State government? It is general, and says only “shall not be infringed.” The wording and its normal usage are broad enough to protect the right from infringement by both or either of the federal or State government, as well as by private individuals. Some cases and constitutional authorities have made the argument that the Second Amendment as written applies to the States, in the event they provide inadequate protection under their own laws or constitutions.[174] Further, since the First Amendment expressly limits Congress, it follows that the Second, with no limitation, also protects the right to keep and bear arms from State obstacles and burdens.

In ordinary English usage, the dangling prefatory clause of the Second Amendment has the appearance of a reminder or explanation, instead of a limitation. Conditions and limitations require and utilize different words, such as “only,” “limited to,” and “for that purpose alone.” To construe the clause otherwise requires the addition of words of limitation that the Founders never intended or used. The militia clause does not use words of condition or limitation. The militia clause actually does not even say what it is all about. In Madison’s original phrasing, it was the second clause,[175] an afterthought explanation. The important right of self defense goes back to the writings of Blackstone. That defense to be effective must be against all perils and utilize all means. The amendments in the Bill of Rights typically have more than a single underlying rationale, usually several, based upon regrettable colonial experiences with the overbearing British who sought to exploit our noble ancestors.

 

Press Analogy

 

Let us suppose that the First Amendment were introduced by an observation about a responsible press. This would not be construed to restrict free expression to newspapers only, writing “responsible” stories only, that did not rock any major boats, yachts, or limos. Nonetheless, that is the approach of restrictive views of the Second Amendment. Such a form of the First Amendment might be:

 

A free and responsible press being necessary to the security of a free state, Congress shall make no law abridging the freedom of speech, or of the press.

 

It would not be sound to argue then that the freedom of speech could only be allowed for an approved responsible press, perhaps state-owned and regulated. Justice McReynolds might so argue, in light of his refusal to apply the First Amendment or any other provision of the Bill of Rights with any strength.[176] No other Justice has ever resisted applying provisions of the Bill of Rights with such tenacity.[177]

 

The single purpose “militia-centric” reading of the Second Amendment also falls into the classical logical fallacy of the excluded middle. It excludes without reason other purposes of the Amendment, such as home, family, business, and community defense. The single purpose approach also unimaginatively disregards the other multipurpose amendments to the Bill of Rights. The other eight were considered and ratified in the same time frame and used similar words such as “the people,” to protect individual rights. Both expressions appear in the Second Amendment.

 

The Eldred Copyright Analogy

 

The recent Copyright extension case of Eldred v. Ashcroft[178] is instructive by analogy. Eldred argued “… that the preambular language identifies the sole end to which Congress may legislate; accordingly, they conclude, the meaning of ‘limited Times’ must be ‘determined in light of that specified end.’ ”[179] The preamble of Article I, §8, cl. 8 states a purpose “to Promote the Progress of science and useful arts ….” The Supreme Court refused to accept a reading of the Copyright Clause tied to its Preamble: “by securing for limited times to authors.” The Court declined to use the vague term “limited times” as a limitation on the term of a copyright.

Significantly, Justice Ginsburg stated: “It is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”[180]

The Second Amendment has its “militia” preamble as well, expressing one purpose, and not denying others. The Court could clarify as it did in Eldred that such a preamble is not a narrow limitation. The militia interest is, under the Eldred approach, but one of several historical purposes, applicable today, such as home, family, and business defense. Eldred comes as a timely analogy. The Congress has spoken in favor of the right to keep and bear arms on several occasions, as early as the Freedmen’s Bureau Act which purported to protect “the right of the people to keep and bear arms ….”[181]

 

The Text & All That Surrounds[182]

 

Justice McReynolds’ Miller opinion did not elaborate on the text and history of the Second Amendment with any precision, or in any depth. Much is to be learned by what the Second Amendment does not say:

 

The right of the people [not the State] to keep and bear arms shall not be infringed

[does not say ‘may be taxed, limited, and regulated in numerous ways.’]

[but may only be exercised by the State during activities of] a well regulated [government] militia.

 

The Amendment says “shall not be infringed,” as opposed to “may be taxed and regulated.” The Amendment does not announce a “right of the State to keep and bear arms during National Guard activities.”

Nonetheless, many who object to arms for self-protection, home, business, and community defense give the Amendment those tortured interpretations.

 

he Second Amendment could be construed in much the same manner as the adjacent First Amendment, because it is just as important. It also might be compared logically with the fundamental family rights cases, as in Troxel v. Granville.[183] Heightened interpretive scrutiny was applied there as well. It is the appropriate standard for an explicit fundamental right.[184]

 

Virtually all of the Amendments known as the Bill of Rights - the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendments – are suggestive of individual constitutional rights. They do not address rights of the States, or any other kind of collective rights. Only Amendment X refers to States’ rights.

Amendment I includes religious freedom, expression, and “the right of the people peaceably to assemble, and to petition ….”

Amendment II has that same phrase, “the right of the people,” not the right of the State. The Second also mentions one of its objectives, with no words of limitation or condition or of allowing regulation.

The Third Amendment prohibits the quartering of soldiers “in any house, without the consent of the owner.” This amendment protects an individual homeowner’s right, not a right of the State.

Similarly, Amendment IV, not unlike the First and Second, uses the term “right of the people to be secure in their persons, houses, papers, and effects ….” This usage is personal and individual, not State or collective. Only individuals have Fourth Amendment rights.

The Fifth Amendment starts out with “no person,” later says “any person,” and protects a number of individual rights that are fundamental: protection from double jeopardy, the privilege against self-incrimination, and the requirement of just compensation in the case of a taking. There is a general due process clause in the Fifth Amendment as well, with an equal protection component.

Amendment VI similarly refers to the individual accused, and the “assistance of counsel for his defence.” {Most 16-early 20^th century writers spelled defense as “defence.”}. As you recall, accused Jack Miller had no legal counsel for defending the government appeal.

Finally, Amendment Nine reminds us that other rights are “retained by the people.”

 

In the Miller opinion, Justice McReynolds made no analytical comparison between the Second Amendment and other individual protections in the Bill of Rights. He altogether missed this important side-by-side relationship, and much more.

 

ames Madison fortunately left a decent paper trail. He made personal handwritten notes for his June 8, 1789 presentation to the Congress of a proposed Bill of Rights. Volume 12 of The Papers of James Madison reproduces these verbatim as Notes for Speech in Congress commencing on page 193. Mr Madison wrote:

 

“They relate 1^st. to private rights - ***

 

Contents of Bill of Rhts - …

3. natural rights, retained – as speech, Con:”

 

James Madison asked his fellow Congressmen to “expressly declare the great rights of mankind secured under this constitution.”[185]

 

In no part of the Miller opinion did Justice McReynolds relate to the case this important history of the Bill of Rights or Second Amendment from Madison through the Congress.

 

eading constitutional scholar Leonard Levy is but one of many learned jurists and historians who

patiently tell us the obvious - that the Second Amendment protects an individual right.[186] Other articulate leaders in legal and constitutional scholarship are in accord, including Joseph Story, Thomas Cooley, William Blackstone, Chancellor Kent, William Rawle, and contemporary scholars such as Reid Akhil Amar, Sandy Levinson, and William Van Alstyne.

William Rawle of Pennsylvania was a contemporary of the Bill of Rights. He wrote concerning the Second Amendment:

 

No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.

William Rawle, A View of the Constitution of the United States 125-26 (2d ed. 1829).

 

oseph Story wrote:

 

 

One of the ordinary modes, by which tyrants accomplish their purpose without resistance is by disarming the people and making it an offense to bear arms.

Story, A Familiar Exposition of the Constitution of the United States 264 (1893).

 

Justice McReynolds was not, however, carefully searching for history and information. If he had been, he would have found much more. He preferred to limit himself to three footnotes at a time, the number in the Miller opinion.[187]

 

n the history that surrounds the Second Amendment, the British “Redcoats,” starting the American

Revolution, fired upon unarmed Boston citizens in the “Boston Massacre.” The citizens resisted the Stamp Act with individual arms. The citizens also stopped the seamen kidnapping practice of “impressment” by using arms against the British ship forces.[188] Individual arms for home, business, and community defense are everywhere in the early history of the American Republic.

Most of the commentators cited by Justice McReynolds actually favored Jack Miller’s side of the case. Others could easily be distinguished away as peripherally relevant at best. McReynolds did not examine the authorities closely or critically. The Miller opinion is a work of minimalist scholarship.

 

hief Justice Charles Evan Hughes assigned opinions in that Term. He gave the writing in this significant but unargued appeal to Justice James McReynolds.

In 1939 McReynolds used his limited home library. He worked in the rooms of a District of Columbia luxury apartment building.[189] He did not have the online Library of Congress website, today known formally as A Century of Lawmaking For a New Nation, http://memory.loc.gov/ammem/amlaw/index.html. The site includes a great many fundamental primary sources of information on the Constitution, Bill of Rights, and Fourteenth Amendment. These include Eliot’s Debates, Statutes at Large, the Annals of Congress, and the Congressional Globe. It is not known what volumes McReynolds owned or used in his personal research. The law clerk Knox does not relate any case of being assigned by McReynolds to conduct research in libraries beyond the material in the briefs or McReynolds’ study.[190] That seems odd in light of the present scholarly environment of the Court.

 

The Government Brief & the Opinion by Justice McReynolds

 

Solicitor General Robert Jackson – later to be Justice Jackson – officially represented the federal government in its appeal of the Miller case to the Supreme Court. He argued in his unopposed Miller brief that:

 

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. … [T]he carrying of weapons was always a crime under the common law of England and of this country.[191]

 

The initial sentence is a “so what.” It does not matter to the result. It is also a legal admission, however, that federal law may not infringe the right to keep and bear arms. That is evident and clear: “[T]he right of the people to keep and bear arms, shall not be infringed.”

The following, second sentence in the government brief is not quite true. It is also contradictory. The authoritative writings of Blackstone, Rawle, Justice Story, Kent, Cooley, and English historical documents and treatises demonstrate overwhelmingly that the carrying of weapons was not generally a crime under the common law of England or of this country. Individuals had a right and often an obligation to be personally armed. Historian-lawyer David Hardy carefully details this background in his valuable little book Origins and Development of the Second Amendment 12 & passim (Blacksmith, AZ. 1986). Hardy notes:

 

Yet more recent historians have traced the individual legal duty to own arms and be skilled in their use to 690 A.D., and concluded that it is in fact ‘older than our oldest records.’ J. Bagley & P. Rowley, I A Documentary History of England 152. [192]

 

Typically in those ancient years the possession of arms had not been made a crime, unless there was a factor of monarchial, parliamentary, or religious persecution-discrimination. The U.S. Founders generally frowned upon such a legal rationale. Also, there might be an offense if the carrier of arms was menacing the populace, rather than carrying for self or other defense. Hardy, supra, and Joyce Lee Malcolm develop this historical material well.[193] Advocate Robert Jackson and Justice James McReynolds did not.

William Blackstone explains the relevant common law in his 1803 Commentaries. He states this regarding the fundamental nature of various personal rights, including that of bearing arms for self-defense:[194]

 

5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence ….

[It] is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

… the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birth-right to enjoy entire ….

 

Justice McReynolds missed this part of Blackstone. He went off into another book, and discussed militia material instead. This neglect of legal and historical authorities in the Miller opinion by Justice McReynolds himself discredits the opinion. If you check paragraph-after-paragraph, you find systematic errors of this nature throughout, that first year law students should not make, much less learned Justices.

 

McReynolds does eventually cite Blackstone.[195] He references, however, the wrong chapter. The relevant part of Blackstone, set out above, supports an individual “right of having and using arms for self-preservation and defence.”

 

Lewis & Clark’s Short Blunderbuss ca. 1760

Smithsonian Institution

National Museum of American History, Washington, D.C.

www.loc.gov/exhibits/lewisandclark/images/lcp0041s.jpg

 

 

he most often quoted mysterious paragraph from the Miller opinion states:

 

 

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. Aymette v. Tennessee, 2 Humphr. 154, 158 (Tenn. 1840).

307 U.S. at 178.

How much illogic is there in those oft-quoted 88 words that do not come from the Constitution, or prior established case law, but only from Justice James McReynolds, who was known as Woodrow Wilson’s SBM - Second Biggest Mistake?

 

here is much mischief in the McReynolds’ test for Second Amendment recognition, including but not limited to:

 

1/ Evidence and the actual charges: There had been no trial in the Miller case, only abbreviated argument on the Second Amendment constitutional question. There was no prior case law to suggest what Jack Miller needed to prove in order to prevail and be fully exonerated. The burden of proof, moreover, belongs to the government in criminal cases as to elements of the crime, regardless of labels. In the posture of the case, the government had not even established that Miller possessed a short barreled shotgun without registering it and securing a stamped order. McReynolds should have remanded the case for a trial, with some guidance and direction, instead of the ambiguous general remand.

2/ 18 Inches, 7.086 cm, how many other magic measurements? The Second Amendment says “arms,” not arms over 18 inches, just as the First Amendment says “press,” not “agreeable press.” The shotgun was plainly an “arm” within the meaning of the Second Amendment, and quite useful both to military, militia and home defenders. Perhaps more pertinent to the times, the short shotgun is an excellent defensive weapon for a bank security guard confronted by multiple robbers. It is almost too obvious to remind us that the guard must be careful for the sake of bystanders.

A developed record would have shown that short-barreled shotguns were legitimately useful for private defense and in the militia-military from pre-Revolutionary times to date. Such well documented statistical and inventory facts can now be judicially noticed using materials that are in the Library of Congress.[196]

In fact, Mr. Miller’s shotgun would be quite effective in defending a household from invasion by multiple combatants, looters, or terrorists at close range. Justice McReynolds made erroneous bare assumptions without evidence, knowledge, training, or judicial notice materials. The Justice invented the militia-useful suggestion, without sufficient historical or textual authority, or study of weaponry, military or otherwise.

On top of those cumulative errors, the indictment did not charge Miller with having a firearm unrelated to potential personal or common defense, much less a militia connection.

 

3/ Why be related to the Arkansas militia? Justice McReynolds fabricated from whole cloth a vague and amorphous requirement that the firearm in question have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” The Second Amendment in its language allows no such limitation. The underlying self defense purposes of the Amendment are not necessarily militia-related at all. The McReynolds “test” could apply to anything from a slingshot to a sting missile. A short barreled shotgun most obviously has military and naval use for defensive and offensive combat at close quarters. It would be an ideal weapon to fire at a small band of terrorists or a charging bear. What is “reasonable” depends upon who holds the power to define. Recall that the Amendment protects “the right of the people to keep and bear arms ….” The Amendment does not have any limitation of those arms to ones selected and in use by the militia, military, or the State. While a broad concept of militia would include Jack Miller as an adult male, he also needed means of self defense, whether involved with the military, militia, or not.

4/ Should not citizens pick their own “instruments” for personal, home, and business defense? The military interpretation of Miller, with uninformed judicial oversight in that case, took away the right of the people to choose those arms most suitable for their personal home and business defense. That limitation has no textual support in the Second Amendment. The “right of the people to keep and bear arms” is the operative language, not the right only to arms chosen by the State and approved by a majority of the Justices. The choice of arms, like the choice of books to read, belongs to the people, not Congress or State legislators.

 

5/ Evidence, and the due process burden of persuasion? In a federal criminal prosecution the burden falls upon the government to prove every element of the crime beyond a reasonable doubt. When an individual challenges a statute that burdens a fundamental right, the government also has an obligation to show that the statute rests upon a legitimate and compelling basis, and is narrowly tailored not to abridge that fundamental right. The Miller case, from 1939, does not even undertake to justify the statute, beyond bare speculation about the buzzword “sawed-off shotgun” and its supposed lack of militia utility. The government failed to meet its obligations of justification, proof, and persuasion. The Court allowed this to pass muster uncritically.

 

6/ Judicial notice outside of the McReynolds’ apartment house: Justice McReynolds, without any evidence or remand for findings, made up his own mind about Miller and the firearm in question. He stated: “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. Aymette v. Tennessee, 2 Humphr. 154, 158 (Tenn. 1840).” Jack Miller, without a lawyer, had no means of offering judicial notice materials to the Court. Without a directed remand for evidence and findings, Miller had no forum for proving that short shotguns had remarkable defensive and combat uses. Being dead before decision day, Miller was fully unavailable. Justice McReynolds had a car and a law clerk, and could have found out all about short shotguns, from the blunderbusses illustrated in this article to the similar more modern weapons used by the U.S. military. Miller confined his research to his small apartment library, not the ideal place for making constitutional decisions. McReynolds might have better heeded his own concerns in the earlier Carroll case[197] that: “The damnable character of the bootlegger’s business … should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted means ….” Or, McReynolds might have listened to the wisdom of his colleague Justice Brandeis, who stated in Jay Burns Baking Co. v. Bryan, 254 U.S. 504 (1924):

 

[T]he Court should acquire knowledge and must, in my opinion, take judicial notice, whenever required to perform the delicate judicial task …. Put at its highest, our function is to determine, in the light of all facts which may enrich our knowledge and enlarge our understanding ….^[198]

The McReynolds opinion is devoid of any effort or curiosity to acquire the necessary knowledge to decide the Miller case on the basis of a comprehensive understanding of firearms and the Second Amendment.

 

7/ The gross irrelevance of Aymette: The citation by Justice McReynolds to the Tennessee Aymette state case is also seriously beside the point. That was not even a Second Amendment case. Aymette was carrying a concealed bowie knife on an aggressive vendetta. He was not engaged in community, business, or self-defense. More relevant State appellate cases are numerous, but McReynolds deliberately ignored them all, if he even knew they were in the books. These include Bliss v. Commonwealth,[199] Andrews v. State,[200] Nunn v. Georgia,[201] and In re Brickey.[202]

A crucially important State case is Nunn v. Georgia, decided by the highest court of a State that was among the original thirteen. In Nunn the Georgia Supreme Court held specifically:

 

The language of the second amendment is broad enough to embrace both Federal and State governments - nor is there anything in its terms which restricts its meaning. 1 Ga. at 250.

 

The Court pointedly ruled:

 

The right of the whole people, old and young, men and women, and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree ….[203]

 

Another broad early Second Amendment decision is In re Brickey.[204] Brickey ruled that a state law prohibiting private persons from carrying deadly weapons within municipal limits (city, town, village) violated the federal Second Amendment right to keep and bear arms. Justice McReynolds, however, cited the less material case of Aymette, involving different law and inapposite facts.

 

8/ Justices should hear both sides and do their homework: If specific evidence were truly important and essential to a Second Amendment analysis, the Court could have remanded for further findings, or appointed counsel for Miller and required specific briefings, or researched the topic of arms used in military and defensive engagements in particular. There was certainly no way that Miller could have known at trial time what factors would be emphasized in an appellate opinion. He had only been charged with not having a stamped order, and not registering the firearm, nothing more.

Also, Justice McReynolds made unfounded assumptions without evidence that were facially incorrect. Mr Miller’s shotgun would be quite effective in defending a household or building from attack by multiple combatants at close range. A short barrel increases the maneuverability of a shotgun at close range. Such a shotgun is superior to a pistol for defense. The Court could have sent a researcher to the Library of Congress one block away, or remanded the case for findings. Instead it made erroneous and speculative determinations in a field where Justice McReynolds certainly demonstrated no expertise.[205]

Before connecting the short shotgun with criminality, McReynolds might have heeded his own words from an earlier time: ““The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.”^[206] Holmes too may have been displeased with the criminal assumption that a short shotgun was inherently evil. He stated in 1916 that “it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Refining Co.^[207] Yet that was precisely what happened in Miller.

 

The Miller Court also held sub silentio that Jack Miller had full standing[208] to raise a Second Amendment challenge to the law. He was an individual. He was not formally an aspiring member of an organized Arkansas or Oklahoma State militia. Standing for Jack Miller was straightforward and within the reasoning of an early race case where McReynolds did not dissent, Buchanan v. Warley.[209] The federal Ninth Circuit has gone off on an odd tangent denying standing to individuals in Second Amendment cases.[210]

The Miller decision has spawned varying schools of thought and been cited for numerous irreconcilable positions.[211] The Supreme Court has not, however, yet taken a new case for a modern review of the meaning and application of the right of the people to keep and bear arms.

Underlying the Miller case and the statute it involved was the national fear of emerging crime gangs with increasingly effective weapons. Jack Miller, however, was not here charged with bank robbery or misuse of his firearm. The simple keeping of a firearm is essentially a passive harmless circumstance without much more in the way of intent and overt acts.

 

The Supreme Court Justices have stressed that “[t]he prospect of crime, however, by itself does not justify laws suppressing protected speech.” Ashcroft v. Free Speech Coalition.[212] The same analysis applies to bans that burden the right to keep and bear firearms. Justice McReynolds himself has made the same point:

 

Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.[213]

 

Misuse of firearms by dangerous criminals is not prevented, but is more likely encouraged when government disarms law-abiding citizens of firearms for self, family, home & business defense. Any danger from some firearms, as from some speech, “does not necessarily follow from the speech [firearm], but depends upon some unquantified potential for subsequent criminal acts.”[214] The punishable act is a matter of further and independent intervening causation, not mere possession. Violent offenders will find weapons, regardless of what the law says. Individual Americans will all too often submit to disarmament and follow laws that take away the essential means of self defense. The ordinary keeping of a firearm in a home for family defense is many steps away from use of that weapon for violent criminal activity. Home items of many kinds could be used for crime, but are not, such as power tools, bats, dogs & cats, knives, and long iron golf clubs.

Historian Leonard Levy pointed out in his refreshingly honest discussion of the Second Amendment that:

 

Several towns and a few colonies required subjects to go about armed even on the way to church. Internal dangers and the possibility of insurrection, as well as foreign and Indian dangers, explain such legislation.

Levy, Leonard W, Origins of the Bill of Rights 140 (Yale 1999).

 

The citizen’s justification for keeping firearms today is primarily for home protection, and keeping one’s business safe from invasion by violent burglars, or for self-defense when accosted on the street or highway.

 

he federal appellate courts in this new century are finally coming to understand the deep history and modern significance of the Second Amendment. The exhaustive recent historical analysis by the Fifth Circuit in Emerson v. United States[215] is an outstanding example:

 

We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.

We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.

 

ustice James Clark McReynolds did not adequately research the law and history of the Second Amendment for his hurried Miller opinion. The writing lacks the depth of modern Supreme Court analysis. It has no veracity as a persuasive precedent, and should not be followed even in its narrowest of readings. That too lacks a sufficient basis in the wording of the Amendment or its considerable history.

 

Justice McReynolds in the Miller opinion references Adam Smith’s Wealth of Nations, Book V, Ch I, for “an extended account of the Militia.” McReynolds provides no explanation of how this material remotely affects an individual right to bear arms, or the stamp-order crime for which Miller was originally indicted. Adam Smith was no authority on American constitutional law.[216] His area was world literature and economic history. His perspective was English, from the 1750s. At the time when England was exploiting the Colonies, not setting an example.

Justice McReynolds cites[217] material from the Herbert Osgood colonial history that supports an individual right to keep and bear arms, indeed, an obligation to do so:

 

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 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).[218]

 

Englishmen had both a right to keep and bear arms, historically, and an obligation to participate in community defense.

Justice McReynolds lastly lists a final few more loosely selective paragraphs concerning the militia and arms. Not one denies a broad individual right to keep and bear arms for home, business, and community defense. The authorities cited by McReynolds actually throw more shadow than light upon his Second Amendment analysis. McReynolds noted that “ordinarily when called for service these [Militia] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”[219] One may conclude from that statement that the Second Amendment is necessary so that Militia men could obtain, train with, and keep the arms in the first place, as individual citizens.

Justice McReynolds in the end cites in his final footnote three[220] “important opinions and comments by writers,” including Joseph Story and Thomas Cooley.[221]

Story, a Justice of the Court from 1811 to 1845, was a significant authority on the Second Amendment. Story expressed himself well on the issue in his treatise on the Constitution: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic ….” III Story, Joseph, Commentaries on the Constitution 746 (Rothman 1^st ed. 1991).

McReynolds mistakenly only cited the Story discussion of a militia, not of “the right of the citizens to keep and bear arms.”

McReynolds cited the essential Cooley treatise as well, I Constitutional Limitations 729 (8th ed. 1927), for this general and not particularly useful phrase:

 

The alternative to a standing army is ‘a well regulated militia’; but this cannot exist unless the people are trained to bearing arms. The Federal and State constitutions therefore provide that the right of the people to keep and bear arms shall not be infringed; but how far it may lie in the power of the legislature to regulate the right we shall not undertake to say. Happily, there has never been, nor, we may hope, is there likely to be, much cause for examination of that question by the courts.

 

Cooley's further treatise, General Principles of Constitutional Law sec. IV (1898), however, elaborated on the more relevant individual right to bear arms:

 

The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.  The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon.  But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check.  The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.  But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

 

Even Title 10, U.S. Code §311 now describes the unorganized militia as “members of the militia who are not members of the National Guard or the Naval Militia.” Broadly, the militia today consists of “all able-bodied males at least 17 years of age and … under 45 years of age … and of female citizens who are members of the National Guard.” In that sense Jack Miller was within the definition of a potential militia man. The original Militia Act of 1792[222] and the Miller analysis also defined the militia as 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.”[223]

 

Justice McReynolds neglected to study and apply the authorities he referenced. Story and Cooley both contradict him and his fanciful connection of the firearms protected with a requirement that they be useful for the organized State militia.

 

An historical irony is that Justice McReynolds has a Year 2003 counterpart - Judge Stephen Reinhardt of the federal Ninth Circuit, in the case of Silveira v. Lockyer.[224] Reinhardt has some fame as one of the most-reversed federal appellate judges.[225] His Silveira opinion treats the Second Amendment right as one owned exclusively by the States, not any individual. He would allow individuals to be disarmed altogether. He stumbled also in his effort to find historical justification for such a view. That was the Bellesiles debacle.

Judge Reinhardt initially on December 5, 2002, cited Bellesiles, Gun Control: A Historical Overview.[226] Much earlier in the year, however, Bellesiles had been exposed for “questionable” methodology, or worse. He lost his Emory University professorship. He was deprived of his Bancroft Prize awarded by Columbia University for the work in question.[227] Judge Reinhardt was unaware of the debacle for several weeks, if not months. Somehow he completely missed an article in the Yale Law Journal exposing Bellesiles fully and tracing the entire extent of the investigation. See Lindgren, Fall From Grace: Arming America and the Bellesiles Scandal.[228] Reinhardt issued the Silveira opinion in December, headlining discredited historian Bellesiles in footnote number one![229]

It was not until January 27, 2003, that Judge Reinhardt corrected the Silveira text to erase his two references to Bellesiles. He put in a new source, whom he also had not come to know particularly well: Kruschke, Earl, Gun Control (ABC-CLIO 1995), pages 84 and 170. The Reinhardt-cited book, and a previous work by Earl Kruschke - the same pages cited – state that “175,000 of these weapons have been registered since the law was enacted, and, according to the record, not one of them has ever been used to commit a crime.” Id. at 171. Author Kruschke further elaborates on the individual right understanding of the Second Amendment, which Judge Reinhardt had rejected. Id. at x, 10-15, 24-25, 28-30, 81.

A considerable number of circuit judge colleagues on the same court as Reinhardt have critiqued his opinion and the position of the circuit. See Nordyke v. King.[230] Six dissenters on the denial of rehearing en banc in Silveira took him to task as well.[231] Now, 64 years post-Miller is high time, high noon, for the Justices to hear and determine these important fundamental constitutional questions.

 

D. Reargument of Miller in the next Term Could Have

Avoided the Inadequate Decision of an Unargued

Major Constitutional Question

 

When no lawyer stepped forward on behalf of Jack Miller for argument on March 30, 1939, the Court was not without alternatives. An obvious choice was to appoint a capable lawyer to brief and argue the case the following Term. The Court could of course allow the usual 30-60 days for briefing and hear two-sided reargument.[232] There was no imperative to decide this major Second Amendment case instanter without argument and considerable deliberation. The lower court decision affected only Jack Miller and Frank Layton in a single obscure federal district. The National Firearms Act could still be enforced. The accusation was for unstamped and unregistered possession, not for setting off a hydrogen bomb. With the case held over for the summer, full argument could be made for Jack Miller, in all fundamental fairness. The Court’s swift and one-sided determination to decide these serious Second Amendment questions immediately abrogated the wise maxim of Justice Brandeis that:

 

It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

Ashwander v. TVA, 297 U.S. 288, 347 (1936) (concurring opinion). 

 

The Court could instead have reversed or vacated the lower court judgment, on any one of the lesser nonconstitutional grounds outlined above: (1) non-appearance and denial of the right to appellate counsel, (2) the need to develop a record on issues of fact that the Court might deem of significance, (3) the need for district court findings and a developed explanation of the conclusions of law below, or (4) inadequacies in the terms of the indictment.

 

E. The Enigma of the Ostensibly 8-0 Decision

 

The enigma remains why the other seven Justices de facto signed on to the Miller decision?

We know that in that era, dissent was strongly discouraged. Some 80% of decisions were unanimous, far more than the majority. The rare dissent was usually noted, without an opinion.[233]

We can understand that at the end of the Term, each Justice is busy with a good number of his or her opinions to write in a matter of a few remaining weeks.

The total absence of any opposing brief or argument may have contributed heavily to the adverse outcome for reasons other than the merits.

Historically, the Second Amendment had not been an active issue because there was no challenge to the federal gun laws before. Even Justice Black, who stressed the words “no law” in the First Amendment, did not step forward to remind the other Justices that “the right of the people to keep and bear arms, shall not be infringed.” He never wrote at any length on the Second Amendment. His private manuscripts in the Library of Congress have no memoranda on the Second Amendment. The Amendment had never been applied to the States,[234] so no jurisprudence had been developed there for guidance. Justice McReynolds picked the single most negative state case to cite and discuss, and ignored a great many others, as outlined above. The topic was of no more interest to judges, lawyers, and students than the dormant Third Amendment.

The majority of Justices may have had entirely other reasons for reversing the lower court, and no compelling arguments for affirming. Other justices were surely not enthused about approaching the irascible Justice McReynolds to draft a grand historic opinion at the end of Term. When Justice Cardozo had once criticized the wording of a McReynolds opinion, he quickly learned of McReynolds’ rudeness and anti-Semitism. Never again were the two on speaking terms.[235]

 

t most, the other seven Justices in May 1939 concurred in a single uncontested result at the busy conclusion of the short-handed year. Counsel did not appear, and no contrary argument was heard. There is no reason to suppose that any of the other Justices actually participated in the research and writing of Miller, or had any pre-existing experience or expertise with the Second Amendment. The matter most likely became an easy one to decide and forget when Jack Miller made no appearance. The Court moved on. They did not even realize that Jack Miller was no longer of this Earth. The Justices had over 30 more decisions to write and hand down in the few remaining short span to June 5, 1939, the final day of the term.

As mentioned earlier, by peer pressure and tradition, the Justices on the White, Taft, and Hughes Courts were very frequently unanimous. There was a silent code of conduct that discouraged dissent. Many dissents from the period have no opinion or other explanation. Before the great splits around 1936, the White, Taft, and Hughes Courts issued unanimous opinions for 80-90% of the matters before them.[236]

Chief Justice White was almost blasé about the practice, as in one unanimous opinion where he discussed the views of the minority, Sea Board Airline Ry v. Padgett:[237] “[S]ome members of this court now consider the proposition as affording adequate grounds for reversal.…[A] majority of the court is of [the] opinion that the proof was sufficient.” Yet the decision in Padgett was unanimous, 9-0. “Some members” disagreed but joined for the sake of unanimity.

The eventual Miller opinion as such is definitely not the considered judgment of the entire Court based upon full briefing and argument of questions that had to be decided. Miller is simply not an in depth sophisticated analysis of the Second Amendment, its history, or meaning. It leaves far too many unanswered questions.

 

F. What were the Ultimate Miller Holdings, and

Do they Matter now in 2003?

 

The most often quoted errant paragraph from Miller that we have discussed was this:

 

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. Aymette v. Tennessee, 2 Humphr. 154, 158 (Tenn. 1840).

307 U.S. at 178.

The most obvious holding of Miller, denied by Judge Reinhardt and some of the Ninth Circuit in Silveira,[238] is that an individual has standing to challenge a firearms restriction under the Second Amendment. Otherwise the Court in Miller could have dismissed the appeal for lack of standing.

A second but ambiguous possible holding is that an individual may keep and bear a firearm that has “some reasonable relationship to the preservation or efficiency of a well regulated militia.” That expression, when examined carefully, is ambiguous and tells us very little. A militia and a military unit can make good use of virtually any weapon, from a handgun to an ICBM. In the time of young David, a slingshot and a stone greatly aided, and ended, one lengthy military encounter.[239] The “militia” holding in Miller does not seem to require that the possessor of the weapon be a part of any State-organized military unit, however. The broad militia concept encompasses most adult men whether in an organized government military group or not.[240] The problem with this holding is that the militia component is contrary to good English and the history of the Second Amendment.

Searching for magical “holdings” in a poorly done opinion by a less than able Justice, sixty-four years in the past is poor judicial or lawyerly technique. It is akin to parsing the words of Jefferson Davis while researching for a sound understanding of slavery. Let us move on. Our obligation is to the words and purposes of the Second Amendment, not a less than enthusiastic uninformed exposition by Justice McReynolds. He is not an authority for any constitutional jurisprudence, much less an important provision of the Bill of rights.

 

G. The Ambiguity & Subsequent Peculiar History of

Miller in the Courts of Appeal

 

What was said above about the supposed holdings of Miller is reflected in the multiple conflicting appellate decisions interpreting and applying Miller in both federal and state court. I will spare you an exposition of the fifty odd lower court opinions. The Silveira dissenting opinions by Circuit Judges Kozinski, Kleinfeld, and Gould[241] cite Miller for a more benign view, and the rights of individuals to keep and bear arms. Emerson[242] also cites Miller, the same case, for an individual right under the Second Amendment. An excellent article by Brian Denning carefully examines the tortuous path of Miller in the lower courts.[243] It is interesting and thorough reading.

 

V. Conclusions & Foretelling

 

There are many good reasons for the modern Supreme Court to write on a clean slate using original materials and the best of available writing on the Second Amendment. The Miller opinion is not a work of vibrant glowing scholarship. It comes from sixty-four years in the past, pre-Penicillin, when Justices did most of their work at home amidst inadequate research tools. It has a bit of something for everyone, depending upon the kind of selective analysis undertaken. In truth, the Miller opinion seems to have been cited by all sides for every major point of contention about the Second Amendment.

Justice McReynolds apparently worked without an extensive constitutional law library. In studying hundreds of McReynolds opinions, you develop the inescapable feeling that the conclusion comes first, based upon his presumptions and prejudices, that often are reactionary beyond modern comprehension. Then he finds basic support and writes a short opinion satisfactory to him, if no one else.

Miller does not have a clear, well-defined holding that was persuasive and necessary to its decision, aside perhaps from the plain grant of individual standing, which even the Ninth Circuit ignored.

The opinion is not well grounded in the language of the Amendment or its clear history. The cited authorities for the most part support a contrary result. Miller is riddled with ambiguities and uncertainties. It has been interpreted across the Circuits in many irreconcilable and inconsistent ways. Miller has given rise to at least three different schools of thought on the Second Amendment.[244] It is not a strong or persuasive authority. Surely no Justice today wants to rely upon James McReynolds for much of anything. Miller can legitimately be disregarded and distinguished by the current U.S. Supreme Court, and by the lower courts.[245] It provides little useful material, guidance, or thought to inform modern day cases.

 

ather than trying to fit Miller into one or more of a growing category of professorial schools of

Second/Fourteenth Amendment academic and judicial thought, the Supreme Court should acknowledge that Miller is at best a weak, poorly reasoned opinion, and an arguable albatross. The Court should start anew with the wealth of now available material and scholarship.

 

Roy Lucas

Washington, DC

[email protected]