Why United States v. Miller was so badly written

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.

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