US v. Miller
US v. Miller (1939)
I did some research in National Archives, into US v. Miller. If anyone wonders how the case wound up so messy... here are a pair of telegrams from Miller's attorney to the clerk of the Court, announced that he won't file a brief, nor argue. View image
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U.S. Miller question
This just popped into my head. Miller won in the trial court.
The government filed for cert., Supreme Court accepted. Miller's attorney never formally appeared in the Supreme Court, did not show for oral argument. He also didn't brief it, and in fact sent a telegram asking the Court to consider the case submitted on the government's brief.
Where's the case or controversy here?
I suppose there must be some doctrine that allows the case to proceed. Otherwise defendant who wins in the trial court need only refuse to appear on appeal, and the higher courts would be powerless to review the decision in his favor.
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The Miller behind US v. Miller
Story here.
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Story on Jack Miller
Here it is, with the first photo I've seen of the appellee in US v. Miller. I should mention another good historical piece on him and the case, arguing that the district judge, while ruling in his favor, was setting him up to lose in the Supreme Court.
If you want to read my other posts on US v. Miller, just go to the archives, in the left margin, and there's a category for the case.
While we're at it, here's a transcription of the records in US v. Miller. It includes the government's brief, which (while not well organized) in places makes the same argument that DC makes in Heller:
"the right to keep and bear arms, guaranteed in both the Federal and State Constitutions, had its origin in the attachment of the people to the utilization as a protective force of a well-regulated militia..."
"the right secured by that Amendment to the people to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state."
Hat tip to reader Jarard Killip.
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Great article on US v. Miller
Here, "The Peculiar Story of US v. Miller. I think it totally "writes out" the case. The author's research is incredible, tracing Miller's story in detail, and concluding that the district judge meant to set up a Supreme Court case that would get himself reversed (his opinion struck down the NFA, but in reality he was a supporter of federal gun laws who had laughed off the Second Amendment). He explains one reason Miller is so brief and terse: its author, McReynolds, wrote very short opinions. And why there was no input from the defense: Miller's attorney was involved in a very hot political fight at the time.
The conclusion is that Miller is what I've termed a hybrid rights case: the right to arms is an individual right, but only covers military-style arms. That sort of ruling became popular in the mid 1800s, when the issues were largely arms laws regulating daggers, brass knuckles, etc.
Hat tip to Joe Olson.
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Trial court judge in US v. Miller
I just came across some old email in which I'd contacted the grandson of the district court judge in the Miller case, Hon. Heartsill Ragon, who issued the short ruling striking the NFA, from which the government appealed. The grandson could add little to the ruling -- he never heard his grandfather speak of it, but does add a little human background.
The judge had served on the House Ways and Means Committee, was a conservative Democrat. He served six terms in the US House before coming to the bench. He and the defense attorney, Paul Guttensohn, later became law partners for a time. He was later appointed to the 8th circuit, but the grandson says this was almost contemporaneous with his death.
Here's an online bio.
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Miller v. US & its use of Virginia militia statutes
Rudy DiGiacinto, founder of www.virginia1774.org, has established an interesting webpage relating to Miller's citation of Virginia militia statutes, and its conclusion that the Court could not take judicial notice that a short-barrelled shotgun was a militia-type weapon.
[Legal detail: normally you have to provide evidence in order to prove a fact in court. There is an exception for cases where the court can take "judicial notice" that a fact is true. This is limited to facts that are well known and objectively demonstrable -- that June 14 fell on a Tuesday, Richmond is the capital of Virginia, etc. Here, I think Rudy's demonstration that one could show, from original and available documents, that a blunderbusses were used as military weapons, might pass the test. You might still need some testimony that a short-barrelled shotgun is the equivalent of a blunderbuss, maybe not. But as I've earlier posted (see archives, heading of Miller v. US], the Miller opinion was drafted in haste, based on only the government's brief (which wasn't terribly good, either), and written by a Justice whose distinction was not his intellect but the fact that he was widely reputed the most obnoxious man in Washington -- then as now, quite a distinction.]
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Still more on Miller, and its author
I knew Justice McReynolds, who wrote the Miller opinion, was a bit of an odd duck (being, among other things, a racist, an anti-semite, and a hater of wristwatches), but I just came across a webpage summarizing the memoirs of one of his clerks. Two interesting notes: he used his court-employed messenger as a retriever when he went duck hunting, and when the messenger died, six Justices attended the funeral. None attended McReynold's own rites.
Here's a more detailed review of the clerk's autobio. Apparently, McReynolds also hated people who wore red ties, demanded that clerks stand in his presence and address him as "sir," and refused to sit next to Brandeis (who was jewish) for a Court photograph.
It would be an interesting study to determine why Woodrow Wilson appointed him to the Supremes (Wilson wouldn't have objected to his racism -- but what about all his other less-than-endearing traits? Were they unknown? Overlooked? Overweighed by something else--but WHAT? He was a law prof. for a time, but never appears to have demonstrated any great brains).
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More on Miller
James Bardswell's incomparable pages have a transcription of the court file and government's brief in US v. Miller. It's interesting to note how the government's position, as well, appears to have suffered from the incredible speed the Court demanded at end of term.
The government's brief does not clearly set out the different theories it argued. Today, you'd split the three alternate theories into three headings. The government's brief simply lumps them into one argument, going from (1) right to bear arms is subject to reasonable regulation (argument from common law, and with historical flaws); (2) right to arms is a collective right, citing Blaksley decision and misciting others; (3) that is blended into a third position, the one the Court bought, that "arms" relates to arms suitable for military use and not those useful only in brawls and such.
As further evidence of haste -- the government mis-cites the key case for collective rights as State v. Blaksley rather than the correct City of Salina v. Blaksley, suggesting that the drafter of the brief was working from memory and never went back to cite-check even the most important cases cited for its arguments.
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Briefing "schedule" on US v Miller
The Supreme Court case of US v. Miller (1939) is the only modern case (i.e., since Dred Scott) to say much about what the Second Amendment means. It's been noted (first by me, in a 1975 article) that only the prosecution filed a brief or appeared in that case.
I was just looking at the clerk's documents in the case. Compared to modern Supreme Court practice, where you have months to file a brief and prepare for argument, they paint an extraordinary picture of how things were done in days of yore.
March 13, 1939: Court notes probable jurisdiction (i.e., "takes the appeal").
March 15, 1939: Court writes defense counsel a one-sentence note, simply saying "Counsel should be here on Friday, March 31st, for argument of the case of [citations follow]." Sixteen days' notice! And counsel is in Arkansas, and this is before fax or Fedex, and mails appear to have taken quite three or so days to reach him.
March 22, 1939: Defense counsel writes back. Unable to understand, upon reading rules of Supremes, how it can be set this soon. Have not even received government's brief yet. Don't have printed record, either. Was appointed as counsel and will probably not be paid for it. Probably not possible to appear for argument, but would like to file brief.
March 25, 1939: Clerk writes defense counsel. Normally appellant is required to file brief 3 weeks before argument. "Toward the end of the Term cases are reached so promptly after preliminary consideration that it is very often impossible to comply with the rules as to the filing of briefs and the argument of the cases is not delayed for that reason." Understand gov't has given you a typed copy of brief, suggest you file yours this coming week. If not, we can continue argument to week of April 17. Should file petition in forma pauperis, signed by client under oath (Note: client had been released and apparently fled).
March 28, 1939: Defense counsel sends telegram to Court. "Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be able to present & argue case. Paul E. Gutenson."
[UPDATE: Yes, it's sad to think that a case of this import would have been rushed through in such a manner. Or assigned to McReynolds, who was not the brightest bulb in the pack. I mean, the Court then had Felix Frankfurter, Hugo Black, and a few others. Not to mention that the case could have used a little development at the trial level. The indictment was quashed with no evidence being taken. So, as the Supreme Court noted, there was no evidence whether or not the gun at issue (a sawed-off shotgun) was suitable for military/militia use. The Court just said it couldn't take judicial notice of that (judicial notice only applies where a fact is so obvious and indisputable that it need not be proven -- Richmond is the capital of Virginia, Nov. 1, 2005 fell on a Tuesday, etc.]
[ANOTHER: a law prof friend points out there is no record that Miller's shotgun was actually sawed-off. I'm just using that as shorthand for the NFA requirement, which is of registration of shotguns with barrels under 18" or under a certain total length (I think 27"). In practice, most guns of this brevity will have been cut down, but the NFA applies whether they left the factory that way or not, and does not apply, even if the barrel is cut down, so long as everything stays over the limits.]
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Roy Lucas: The Forgotten Justice McReynolds
Roy Lucas, who died of a heart attack last year, was an incredibly prolific writer who had just become interested in the Second Amendment. Before he died, he drafted "The Forgotten Justice McReynolds," an article devoted to the author of U.S. v. Miller. Download file
Roy didn't think much of McReynolds, but then no one else has thought much of him, either.