Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that the decision is congruent with a well-established line of state right to arms cases (some of which were cited in Miller) that all persons had a right to arms, but that the right only encompasses militia-type arms (and not, therefore, Bowie knives or other arms associated with disreputable brawlers). However, Miller is not clearly written, and over the subsequent seven decades, there was much dispute about its meaning. The disputes were almost inevitable, in that Miller is terse and oblique, and, except for a history of the early American militia, provides almost no explication or analysis.
At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion.
The Heller Court pointed out that many lower courts had “overread” Miller. A recent post on the Legal History Blog provides some evidence that legal scholars may also have overread Miller, for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. The post highlights Barry Cushman’s 2003 University of Chicago Law Review article Clerking for Scrooge. Cushman’s article reviews the 2002 book The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington.
Since high school, John Knox had been star-struck by the Supreme Court Justices, attempting to strike up correspondences with them, sending them birthday greetings, and so on. After graduating from Harvard Law School, Knox landed a clerkship with Justice James McReynolds for the 1936-37 term. McReynolds preferred to work out of his D.C. apartment, rather than in the Supreme Court’s then-new building. Knox’s role was secretarial. Knox later wrote: “I appreciated his anti-New Deal view and agreed with it, but that was the only thing I could possibly agree with him on. He was selfish to an extreme, vindictive, almost sadistically inclined at times, inconceivably narrow, temperamental, and heaven knows what. All of his employees lived in a reign of terror and were crushed under foot without any hesitation on his part.”
More relevantly for Miller, McReynolds “found great difficulty in expressing himself in writing and, sadly enough, was genuinely lazy.” In the September of the clerkship, Knox had dinner at the home of Mr. and Mrs. Edward Everett Gann. The Ganns were well-connected in Washington; Mrs. Dolly Gann was the sister of Herbert Hoover’s Vice-President, Charles Curtis (1929-33). Mr. Gann was a friend of McReynolds, and accidentally caught McReynolds in a tryst with a woman. Knox recalled Gann’s words: “I concluded finally that he is not really interested in the work of the Court any more. He’s old, evidently bored with life and would probably retire now if he could do so without letting other conservatives on the Court ‘down.’”
While McReynolds was remarkably even-tempered when President Roosevelt announced his Court-packing plan in 1937,
McReynolds appears to have been equally if not more greatly irritated by the amount of work he had to do in the spring of 1937. One of McReynolds’s defining characteristics, on Knox’s account, was sloth. . . . Nor was Knox impressed with the amount of time McReynolds put into the preparation of those opinions he actually did write. The first opinion of the term went through only two drafts, and McReynolds spent only about three and one-half hours working on it, including the hour he had spent studying the briefs of the case before he had begun his dictation. He devoted only slightly more time to his second opinion. Laboring over opinions in a “scholarly” manner was apparently not Mac’s style.
McReynolds was upset when he was assigned the dissent in an important labor law case (Anniston Manufacturing Co v Davis), which he knew would have to be long. His dawdling delayed the release of the opinion, eventually leading the other dissenters to come to his apartment to try to help him get the opinion done. McReynolds finally decided “he was going to employ the ‘paste and shears’ method, quoting verbatim from lower court opinions excerpted in the briefs rather than composing his own prose.”
Now United States v. Miller becomes easier to understand. All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)
So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.
All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.
Dave N. says:
Serious question. No snark intended. How in the world can a justice be assigned to write a dissent? All he has to do is say, “I’ve changed my mind” and let someone else write it. After the dissent is written he can claim he has changed his mind again.
That seems quite different than being assigned to write a majority opinion, with the task of assigning belonging to either the Chief Justice or the Justice with the most seniority on the majority side.
February 27, 2010, 4:38 pmCornellian says:
I seem to recall a law school prof of mine describing McReynolds as one of the three worst justices in the history of the Supreme Court.
February 27, 2010, 4:38 pmmack says:
Interesting, I had always thought that the Miller decision was mostly just a quick decision to offer blanket protection to the NFA. I had not been aware of any possible collusion to bring a weak case to support/protect the NFA. I have always felt that Miller was over read – though that was is understandable given the paucity of Second Amendment jurisprudence from the Supreme Court. With Heller and McDonald it seems that the current court is essentially set to remove Miller as a case central to Second Amendment jurisprudence, though I imagine that they will by all signs continue to support the consitutionality of the NFA.
The next cases, if McDonald results in a individual right applicable to the states, will involve the bearing of arms – such as the Palmer case in DC. Some hope to overturn the Hughes Amendment but that is legally a long shot and I doubt that it will happen. However, the current course of 2nd Amendment rights depends upon a bare five justice majority that could easily change and with it the course of those rights.
February 27, 2010, 4:41 pmnumeral says:
Quick question, why is this tagged anti-semitism? Mistake? Am I missing something?
February 27, 2010, 4:53 pmAJK says:
There’s no doubt that McReynolds was one of the most despicable men to ever sit on the Court. I’m not sure that I would agree that he was a poor justice (although this account doesn’t sound very promising!).
February 27, 2010, 4:55 pmAJK says:
Anti-semitism was one of McReynolds’ vices — for instance, he generally left the conference room when Brandeis was speaking.
February 27, 2010, 4:57 pmShelbyC says:
He has a lifetime appointment. He can say a phrase two words shorter than the one you suggest, if he wants.
February 27, 2010, 5:09 pmAnon321 says:
How in the world can a justice be assigned to write a dissent?
As I understand it, dissenting opinions are assigned just like majority opinions — by the senior-most Justice voting in dissent. There are certainly ways that a Justice assigned to write a dissenting opinion could get out of it, as you suggest. But I take it that he was hoping to case a vote in dissent and then free-ride on one of his colleagues’ explanations for why the majority was wrong. When he was tasked with explaining it himself, he was upset. Even horrible people with life tenure like to avoid looking utterly and completely lazy to their colleagues, so I imagine that McReynold’s would have been reluctant to start a pattern of temporary vote switching whenever he wanted to get out of writing an opinion that he was assigned.
I seem to recall a law school prof of mine describing McReynolds as one of the three worst justices in the history of the Supreme Court.
Out of curiosity, did he name the other two?
February 27, 2010, 5:24 pmcboldt says:
– for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. –
Miller can’t be correctly read to uphold (or strike) a statute. “We cannot say,” was the conclusion, and without necessary evidence, the Supreme Court could not and did not “uphold the act.” What it did was say that deciding it was unconstitutional was improper, unless the lower court had certain evidence, which the lower court did not have. In other words, Miller is a “the conclusion is premature” case, not an upholding, and not a striking.
February 27, 2010, 5:30 pmcboldt says:
I’d just add, sarcastically, that Miller is written in such a bad, oblique and terse style, that later Supreme Courts would find “Miller was convicted,” within the statement of facts.
February 27, 2010, 5:37 pmOne of the pre-confirmation question/tests I’ve proposed in the past is to ask nominees to “brief” the Miller case – to read it, and then express the procedural condition, the issue, and the decision of the appellate (in this case, Supreme) court. If a nominee can’t brief the Miller case, then they have no business sitting on the Supreme Court.
Note, I’m not asking them to make a value judgment, just to recapitulate what the case says. I’d do the same thing with the Presser case.
Roger says:
The decision simply says what is necessary to decide the case. Why blame McReynolds for the others who have overread the case?
February 27, 2010, 5:38 pmcboldt says:
– With Heller and McDonald it seems that the current court is essentially set to remove Miller as a case central to Second Amendment jurisprudence, though I imagine that they will by all signs continue to support the constitutionality of the NFA. –
Miller, when followed with the evidence shows with regard to short barrel shotguns, would find at least the prohibition on short barrel shotguns to be unconstitutional in light of the 2nd amendment. The Miller test is (or “was”):
US v. Miller, 307 U.S. 174 (1939)
Scalia, in the Heller case, has use illogic to work a reversal of Miller. Backed up with the brute force of the United States government, the NEW (outcome-based jurisprudence) reading of Miller is:
Heller v. DC
February 27, 2010, 5:48 pmSoronel Haetir says:
I too find the statement that all of the judges involved with Heller were more careful scholars somewhat puzzling given that both Scalia and Stevens claimed Miller was convicted. There is a reason it’s United States v. Miller and not Miller v. United States.
Oh well, Scalia has proven numerous times that he will let his policy desires overrule his interpretation desires pretty much every time.
February 27, 2010, 6:52 pmcboldt says:
This post is simply to emphasize attention to a link in the OP, to http://ssrn.com/abstract=981831. This is a most informative piece as to the goings on of Miller as a bandit, as well as to the machinations of the Courts.
February 27, 2010, 7:06 pmI’m reading the paper now, and reading that the judge in the Federal District Court of AR (the same judge who ruled for Miller by finding the 1934 NFA unconstitutional in light of the 2nd amendment), thought that the 2nd amendment should not protect pistols.
Donald Kilmer says:
Another take on this is that Mr. Gura’s achievement is even more impressive, since his adversaries included — not only Washington, D.C., counsel (but) — some lazy and/or corrupt players from the only Supreme Court precedent on the issue.
Can an Amendment sue for malpractice? Looks like the Second Amendment dodged a bullet.
February 27, 2010, 7:13 pmjccamp says:
cboldt -
thanks. good link. interesting read.
February 27, 2010, 7:45 pmBrett Bellmore says:
I have long maintained that we dodged a bullet with Miller; The case hit the Supreme court after the “Switch in Time”. There was no way the NFA was going to be struck down by the Supreme court, they were out of that business for the duration.
As it was, Miller’s absence let the feds prevail on the narrowest grounds possible. If Miller had appeared before them, with competent representation, the NFA would still have prevailed, and the Supreme court would have destroyed the 2nd amendment to make that happen.
February 27, 2010, 8:12 pmcboldt says:
– As it was, Miller’s absence let the feds prevail on the narrowest grounds possible. –
February 27, 2010, 8:17 pmA contingent “previal.” What the feds got was a move from “case dismissed” to “case reinstated for an evidentiary finding.”
Why United States v. Miller was so badly written | Liberal Whoppers says:
[...] more: Why United States v. Miller was so badly written [...]
February 27, 2010, 8:20 pmCornellian says:
Anti-semitism was one of McReynolds’ vices — for instance, he generally left the conference room when Brandeis was speaking.
I also heard that McReynolds refused to show up for the Court’s group photograph when Brandeis got appointed because McReynolds didn’t want to be photographed standing with a Jew. That such a person could get appointed to the Supreme Court is a useful reminder that the current state of the nomination system isn’t all downside.
February 27, 2010, 8:34 pmcboldt says:
What is the cite and/or evidence relating to this conference? The decision doesn’t unequivocally uphold the statute, it conditions the upholding on an evidentiary finding. Did all the justices agree with the logic of the case that “if the [organized militia / army] has a use it, the people may not be encumbered in their access to it?”
February 27, 2010, 8:39 pmDan Lavatan says:
Prior to this case being heard, Miller dissapeared and was never heard from again. His attroney never showed up for court. Anyone could have Miller’s exact same weapon, press the same case, and simply enter evidence that the Militia uses sawed off shotguns (it does). The NFA should probably be overturned, the subsequent 1968 GCA certainly should be. The fact that justices could choose to continue to oppress our rights, doesn’t mean that our rights will always remain oppressed.
February 27, 2010, 8:50 pmJohn A says:
Ah. I had wondered how a Justice of the time could remain unaware that the short-barrel shotgun was in use by the military – “trench sweeper.” This at least partly answers that, he certainly could have been unaware (I doubt it was often a topic of civilian conversation) and it seems those with any interest in the matter perhaps simply avoided the subject since it would not help them.
February 27, 2010, 9:09 pmBrett Bellmore says:
I don’t think it was so much a case of being “unaware”, as of not having it brought to their notice in the proper setting.
February 27, 2010, 9:29 pmcboldt says:
– I don’t think it was so much a case of being “unaware”, as of not having it brought to their notice in the proper setting. –
February 27, 2010, 9:40 pmThat gets to the inquiry of what is in their hearts. The paper cited in the OP intimates that their hearts intended to put the short barrel shotgun outside the ambit of protection. Perhaps it is an artifact of ignorance that they asserted the law as “if the military uses it, the public can too.”
Sarcastro says:
[Want to know the other 2. Do you recall?]
February 27, 2010, 11:08 pmRoger says:
So J. Scalia and Stevens misread some of the basic facts of US v Miller, such as whether Miller was convicted and whether short-barreled shotguns have military use. But how is that the fault of McReynolds? The opinion is only about three pages, and does not misstate anything, as far as I know. If that was not good enough, there are law review articles spelling the case out in greater detail. The criticism of McReynolds is misplaced.
February 27, 2010, 11:13 pmjccamp says:
The paper cited does not exactly cause the blossoming of confidence in the Federal judiciary. The case was sandbagged from the beginning, with the collusion of defense counsel, prosecutor, District Judge, and who knows who else. As someone pointed out, the District judge who found the U S code unconstitutional actually was on record as favoring the banning of all handguns, a dramatic expansion of the same law. He wrote the memo in this case seeking review, because it was an especially weak and uncontested example, a sure-fire winner for the gun control advocates.
It makes one wonder what other cases may have been similarly gamed.
Dan –
In the same file linked, Miller’s end is described. He and several other men robbed the Route 66 Club in OK in April, 1939, aided by employee Earl ‘Woodenfoot’ Clancy. Miller was found shot to death the following day, his car stripped and burned. No one was ever convicted of his murder. The decision that bore Miller’s name was handed down a month later, after Miller was killed. Kind of the Ultimate Moot…
And the linked paper says that Miller pulled one last robbery and was found shot to death the next day, his car burned. Theories include his partner in the robbery killing him for his 1/2 of the loot, and the members of the gang/family of those he put in prison finally killing him for testifying against them.
An obvious edit fail on my part.
February 27, 2010, 11:23 pmDave Hardy says:
I went to National Archives to see if the slapdash treatment of this case was typical … and it was. The files were incredible. Attorneys would telegraph that the rules said the opening brief should be filed a whole two weeks before argument, yet the Court had set argument less than two weeks away, and receive a return telegram that they should not worry, just file at least the day before argument. Yes, the opening brief. Others would be told their case would be argued on a certain date unless the Court ran over, then it would be argued a week later.
I even found petitions for cert. which were literally cut and pasted. Apparently the Solicitor General would submit piles of cut and paste and the Court would consider them.
February 27, 2010, 11:27 pmNI says:
One of the problems with lifetime tenure is that judges (including McReynolds) have been known to stay far longer than they should have. I am informed there was once an elderly, senile federal judge whose colleagues went as a group to his wife to try to convince her to talk him into retiring, only to have her respond, “What, and have him home all day? Are you out of your minds?”
I think a better policy (though it would require amending the Constitution) would be either a mandatory retirement age for federal judges, or a fixed term of, say, ten years. That way, we would still have the benefit of judicial independence while insuring that clunkers like McReynolds are limited in how much damage they can do.
February 27, 2010, 11:28 pmDave N. says:
If there had been an acquittal, there would have been no case at all. I can see why justices seeing a criminal case entitled United States v. Miller might assume there was a conviction because that would be more common than an appealed pre-trial dismissal.
February 28, 2010, 12:19 amSoronel Haetir says:
What do you expect when document preparation was actual work and not just the composition portion?
I wonder how this was during the 1960s when the docket mushroomed. Certainly the opinions I’ve read from that period don’t give me a great deal of confidence in the then justices as legal reasoners.
February 28, 2010, 12:22 amDave N. says:
Another alternative for senile judges (requiring no Constitutional amendment) would be for the Chief Judge of the District in question or the Court of Appeals supervising the District or the Judicial Conference of the United States (or all 3) having the authority to order that cases on a judge’s docket be reassigned and that no other cases be assigned to that particular judge.
February 28, 2010, 12:22 amcboldt says:
– If there had been an acquittal, there would have been no case at all. –
February 28, 2010, 12:39 amPlease expand that thought a bit. I don’t see how it can be relevant. Unless a case turns solely on fact dispute, the government typically appeals when it loses, and an acquittal represents a loss to the government. In this case, Miller plead guilty at trial, and the guilty plea was rejected by the trial judge.
– I can see why justices seeing a criminal case entitled United States v. Miller might assume there was a conviction –
Heller quoted extensively from Miller. It’s risible to excuse oversight of “The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment. The cause is here by direct appeal.”
Brett Bellmore says:
“Assume”? Are Supreme court justices supposed to be assuming things like that? I’m pretty sure the amicus briefs went over the Miller case in detail, too. Maybe Scalia didn’t read any of them? Or have the decision fact checked by anybody who was familiar with the Miller case?
Hundreds of thousands of laymen, simply interested in the 2nd amendment, are familiar enough with that case to know that Miller was never convicted. I guess it’s kind of like the Bellesiles book, the professional historians swallowed it hook, line, and sinker, while numerous laymen didn’t get five pages in before starting to realize something was wrong.
February 28, 2010, 12:39 amDave N. says:
I said specifically “an acquittal” not a “dismissal.” “Acquittal” means “a judgment of not guilty.”
The Fifth Amendment, among other things, provides, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]”
If a criminal defendant is acquitted, the government has no right to appeal. Period. That’s all I meant.
As for the other comments on my previous post, I agree that both Justice Scalia and Justice Stevens were sloppy. However, as an appellate practitioner, I can state that while I know the facts of the case I am arguing as well as I possibly can, and hope the judges hearing the case know the facts as well, I am less concerned with what happened, factually, in the cases I am arguing as precedent and much, much more concerned with their legal holdings.
In the case of Miller, while the ultimate disposition of what happened to the defendant in THAT case might be an interesting historical curiosity, it has little, if any, practical or legal effect on the ultimate holding in Heller.
As my Crim. Pro. professor noted, while the Miranda decision is important, ultimately, Ernesto Miranda is not.
February 28, 2010, 1:27 amGaryC says:
I am reasonably comfortable with the idea of staggered 18 year terms for the Supreme Court, which would guarantee that any winner of a Presidential election would be able to make two Supreme Court nominations in a single term, but no two-term President could nominate more than four.
This does leave an open question about what to do in the case of a death or incapacitation. I’m not certain what the originators of the idea suggest here, but my suggestion would be to allow the President to nominate a replacement Justice, and extend the terms by 2 years of those Justices whose terms would have ended before that of the deceased member.
Reappointment to the Court would be possible, but uncommon, in which case the former Justice would be authorized to choose a Circuit and become a Senior Circuit Court Judge, or to retire.
February 28, 2010, 2:12 amJ. Aldridge says:
Oh well, Heller is worst then Miller on a number of fronts.
February 28, 2010, 7:23 amKharn says:
Or why not use the system already in place? Have the judiciary complain to Congress when one of their colleagues is incapable of continuing and then Congress could impeach the individual.
February 28, 2010, 7:24 amPersonFromPorlock says:
On the other hand, a very reasonable extension of the reasoning in it suggests that licensing journalists would be constitutional, so there’s the possibility of a laugh or two down the road.
February 28, 2010, 8:41 amNI says:
Kharn, I’m not sure being incapacitated is a high crime or misdemeanor for purposes of impeachment, but even assuming it is, I no more trust judges to discipline their own than I trust the police, and for the same set of reasons.
There is a currently sitting federal judge who hates trials and whose practice is to simply dismiss any case that doesn’t settle. His colleagues know this, and the lawyers who practice in that district know this, and nobody has or is likely to do anything about it.
And because the impeachment remedy is so harsh — it’s basically the nuclear option for judges — nobody is going to pull that trigger for things like laziness or senility. I say go for fixed terms and/or a mandatory retirement age.
February 28, 2010, 9:31 amNelson Lund says:
Heller‘s misstatement of the facts in Miller is only the beginning of the problem. For more detail, see here.
February 28, 2010, 10:04 amcboldt says:
– Heller’s misstatement of the facts in Miller is only the beginning of the problem. –
You are probably aware of this recent (Dec 2009) 6th Circuit decision. Here is the complete analysis and takedown of Hamblen’s substantive argument that the Heller Court’s expressly rejected Hamblen’s reading of Miller [that the logic of the Miller case is that weapons that are part of the ordinary militia, etc. are in the ambit of the 2nd amendment].
Hamblen v. United States, 6th Cir., No. 09-5025 (2009)
The appellate opinion is completely unresponsive to Hamblen’s substantive argument, and simply makes a conclusory assertion. This passes for “rule of law”?
February 28, 2010, 10:32 amjccamp says:
Nelson Lund -
Interesting read. Thanks for the link.
February 28, 2010, 10:40 amS says:
That’s not true, it responds by saying the claim and legal argument are foreclosed by Heller. You obviously disagree with their reading, but they do respond with the rule of law.
February 28, 2010, 2:56 pmBrett Bellmore says:
That “commonly owned” language from Heller is a bit of circular reasoning any gun controller would love; “The government can ban these guns because, having already banned them, hardly anybody owns them.” But I agree, it IS in there. Which is to say, anybody who wants to argue that machine guns aren’t constitutionally protected under Heller has at least one leg to stand on. Not two, of course, because people DO own machine guns legally. The only reason they’re not more common is that government regulations have driven the price up by a factor of ten or twenty compared to what they’d cost in a free market.
But that’s only to say that you can put together an argument. Flat assertions aren’t arguments.
February 28, 2010, 4:07 pmcboldt says:
– it responds by saying the claim and legal argument are foreclosed by Heller. –
It doesn’t address one iota of the substance of Hamblen’s argument [how/why Heller misreads Miller], hence my comment “unresponsive to the substance.”
An “at home” example, where the kids might ask to invoke your exception to the 10:00 bedtime rule, where the exception is invoked if the kids present an argument that results in a finding that it is a Friday, and they are going to the movies. The kids come to you on Friday and say they are going to the movies. As you see it, “No” is responsive. My point is that “No,” without more, does not address whether or not it is Friday, or whether or not they are going to the movies.
February 28, 2010, 4:47 pmmack says:
Ahhh, come on let’m go to the movies. Hey dad can I have a full auto? Come on dad, the founding fathers let their kids have privately owned ships of war. “No, you’ll shoot your eye out.”
February 28, 2010, 8:05 pmDavid Bernstein says:
It’s a bit unfair to judge McReynolds by his declining years. He wanted to retire years earlier, but wanted to wait out FDR. Meanwhile, in his younger days he wrote two of the most influential opinions in Supreme Court history: Meyer v. Nebraska and Pierce v. Society of Sisters. He was a very unpleasant fellow, however.
February 28, 2010, 9:24 pmDennis Nicholls says:
I’ve always viewed the Miller case as a “punt”. The actual holding was on an issue of evidence: that the Court could not take judicial notice about that shotgun being a “militia weapon”. The case was a remand, and the final resolution was never made since Miller got himself bumped off prior to the remand trial.
Notice the NFA doesn’t ban certain guns, it only requires lots of red-tape and paying excise taxes on their transfer.
I’ve often thought that the Court in Miller was setting up protected classes in firearms. For freedom of speech, political speech is more protected than commercial speech which in turn is more protected than porno speech. Perhaps after the remand they would then get to the real issue and issue a test based upon firearms having “militia value” being more protected than, say, a “Saturday night special”.
February 28, 2010, 10:45 pmnasch says:
Justice James McReynolds reportedly stated in response to rumors that he would step down, “I’ll never retire as long as that crippled son of a bitch is still in the White House.”
quoted in
March 1, 2010, 12:05 amhttp://www.philly.com/inquirer/opinion/20100228_Obama_should_expand_court.html
bob says:
This is a very good read. I am not a legal scholar so can’t comment on how well it describes the situation but it is a very good read, and well worth the time spent reading it.
March 1, 2010, 9:57 amSCOTUSblog » Monday round-up says:
[...] the Volokh Conspiracy, David Kopel has a post entitled “Why United States v. Miller was so badly written.” Kopel [...]
March 1, 2010, 10:49 amLysander Spooner says:
It is generally understood that neither Mr. Miller nor any defense attorney truly interested in representing Mr. Miller’s position was actually present during deliberations of U.S. v. Miller.
March 1, 2010, 11:29 amWhen one considers the definitions of “unalienable” and “infringed” were the same in 1939 as they were when the Bill of Rights was ratified, it must have come as quite a surprise to the government attorneys that SCOTUS did not summarily dismiss the case and laugh them right out of the courtroom. Only in fear of FDR’s reprisals could such a flagrant violaltion of personal liberty (i.e. the National Firearms Act) have been allowed to stand. For such nonsense to hold sway over every court decision involving “the right of the people to keep and bear arms shall not be infringed” since 1939 is a travesty.
cboldt says:
– For such nonsense to hold sway over every court decision involving “the right of the people to keep and bear arms shall not be infringed” since 1939 is a travesty. –
It’s not so much that “Miller is nonsense,” as it is that every Court that has misread and misconstrued Miller. The primary function of the Miller case, pre-Heller, was to find that the RKBA was a collective right, and not an individual one.
Another case that is radically and chronically misread is Presser, which as a matter of “law” (fiat) stands for the proposition that states may infringe an individual’s RKBA. Presser is a parade permit case, where Presser said it was unconstitutional to require a parade permit, if the people parading were armed. IOW, he asserted that the 2nd amendment protects a right to parade with arms. Not exactly the sort of dispute that should hold sway in deciding the scope of RKBA, beyond the constitutionality of government permitting for parades.
The Presser Court cites to Cruickshank, which rejected the assertion that the 2nd amendment was an impediment to private (non-government) actors. At any rate, the Presser court had more to say about the RKBA.
Presser v. Illinois, 116 U.S. 252 (1886)
It is rank dishonesty to isolate “the amendment is a limitation only upon the power of congress and the national government,” and then conclude that Presser green-lights infringement of the RKBA by states. And Circuit Courts have done exactly that. The 2nd Circuit, in Bach v. Pataki, literally reverses a statement in Presser, and claims that is what Presser stands for. From the Bach v. Pataki case, “Under Presser, the right to keep and bear arms is not a limitation on the power of states.”
This view is restated again and again, recently in Maloney v. Cuomo
“Presser compels the outcome,” Feh. Cert. denied, to boot.
March 1, 2010, 12:05 pmCruickshank says the RKBA would exist, even if there was not a 2nd amendment; and Presser concurs with that – adding that states (and by extension, municipalities) can’t prohibit the people from keeping and bearing arms.
Miller and Cruickshank are not difficult cases to read and understand. Accepting a Courts pronouncement as to what a cited case says is risky – when it comes to the 2nd amendment, Courts are neither trustworthy nor honest.
zippypinhead says:
Tell us more! This sounds like the beginnings of a fascinating judicial history article, or perhaps even a book!
In the law as in many other fields of human endeavor, sometimes the Good Old Days weren’t really so good. I have long assumed Miller’s odd procedural posture was little more than an historical anomoly. In general, today certiorari would not be granted in a case without a complete record below, and if a non-substitutable party – especially the defendant below – died prior to issuance of the opinion, SCOTUS would dismiss the appeal rather than go ahead and issue a ruling on the merits. And if for some reason a case happened to make it to the Court without real counsel advocating respondents’ position, it’s a sure bet that position would still be fully briefed and argued, as there’s a hoarde of actual and would-be SCOTUS specialists lurking about the private bar looking for any opportunity to appear before the Justices. Much of the Supreme Court bar jumps at any chance of a pro bono appointment.
March 1, 2010, 1:27 pmRichard A. Hamblen says:
I am the petitioner in Hamblen vs. the United States.
US V. Miller does not uphold the NFA. The USSC says it cannot say the Second Amendment protects such a weapon as a short barreled shotgun because there is no evidence in the trial record. The case was remanded for further evidentiary action since the USSC is not an evidentiary body. The surviving defendant, Frank Layton, after seeing the fate of his codefendant Jack Miller, chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment, but instead pled guilty in exchange for a sentence of probation, a plea he and Miller tried to entered when first indicted. Read the file of all the extant court documents on this case compiled by Patrick Aultice.
Scalia in Heller is reduced to lying about Miller, a lie the Sixth Circuit perpetuates. Scalia cannot even get the facts of the case correct, for it was the government appealing the dismissal of the charges against the pair, not the other way around. Scalia is supposed to be one of the best legal minds in the country. He has battalions of law clerks. Do you honestly think not one of them brought this error to his attention? And if he gets the basic facts wrong, what does this say about his analysis?
Heller is dicta as far as the NFA is concerned. In an exchange with Justice Scalia in the oral arguments, Solicitor General Paul Clement states the following:
“***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals’ opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult — I don’t want to foreclose the possibility of the government, Federal Government making the argument some day — but I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn’t involve a restriction on machine guns.***” [emphasis added]
Chief Justice Roberts cuts him off, because Heller has nothing to do legally with the NFA because the NFA was not under consideration. Scalia’s remarks about Miller and the NFA in Heller are the very definition of a gratuitous remark.
The Court is reduced to sustaining the Gun Laws by lying about its own decisions. It is apparent from the oral arguments in McDonald that the Court wants to go nowhere near Miller and my case. We are submitting our second and final petition for writ of certiorari with the USSC at the end of the month. If you have any interest at all in my case and in the protection of your constitutionally recognized RTKBA, please assist me. I can be contacted at rahamblen@gmail.com. My attorney, Jeffrey S. Frensley can be contacted at chipfrensley@yahoo.com. I have posted a good many of the case documents and background information at http://www.esnips.com/web/HamblenvsUnitedStates
March 7, 2010, 10:47 pm