LR Article:"The Peculiar Story of United States v. Miller"

[K-Romulus]

From Dave Kopel at the Volokh Conspiracy:

http://www.volokh.com/posts/1179865714.shtml

The Peculiar Story of United States v. Miller:

A fine new article forthcoming in the NYU Journal of Law & Liberty provides fresh insights on the Supreme Court's last major gun control case, U.S. v. Miller (1939). For example, he shows that the case was brought by the federal government as a test case to quell Second Amendment popular opposition to the Attorney General's efforts to create federal handgun control. The federal district judge who wrote the one-sentence opinion declaring the National Firearms Act to violate the Second Amendment was a gun control advocate with strong political connections. The prosecution of Miller was perfect as a government-initiated test case, since Miller had an established record as "a pliable snitch" who would cooperate with the government, ensuring that the Supreme Court saw no meaningful opposition to the government's position.

Frye also argues that although Miller was written by the now-reviled Justice McReynolds, the meaning of the opinion is fairly clear, recognizing the individual right to arms as a common law right guaranteed by the Second Amendment, while still permitting reasonable gun controls.

Frye is a law clerk to the 9th Circuit's Judge Kleinfeld (not sure of how J. Kleinfeld went on the Silveira decision). He uses a lot of 1920's/1930's-era newspaper articles and published memoirs to tell the whole story of:

- the NFA, and how close handguns came to being an NFA item
- the true story of ganster-wannabe Miller, his "gang," and his crooked court-appointed lawyer
- gun control as a plank of the New Deal
- how the Miller case was fast-tracked to the USSC by the government to try to get a pro-control decision
- how the USSC justice who wrote the opinion screwed up the government's plan
- how the biggest gun control supporter in Congress back then was a Klu Kluxer
- how the NRA was active in opposing stupid gun control back then (destroying the Brady/VPC propaganda that the NRA only got politically involved in the 1960's to oppose civil rights laws )
- how machine guns and short-barreled shotguns were the "assault weapons" of the era, with similar anti-gun-owner propaganda campaigns

In all it was a fascinating read. Since I was able to download the PDF through my SSRN account, I am uploading the article to THR per "Fair Use." It is a relatively easy and entertaining read (42 pages), unlike most law review articles.

 

[Glockman17366]

Thank you very much for the informative article!

 

[Sam Adams]

Thanks for posting this. Glad I did a search, because I found a link to the LR article at Random Nuclear Strikes.

BTW, as far as Kleinfeld is concerned, go about halfway down the page on this site to Kevin Baker's comment: http://www.saysuncle.com/archives/2006/12/07/the_parker_case_gets_some_wapo_time/

 

[K-Romulus]

Here is the J. Kleinfeld quote in Sam Adams' link (thanks!)

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”

. . . .

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.

 

[ctdonath]

Right off the bat it sez: "The Supreme Court reversed in United States v. Miller, holding the Second Amendment doesn’t guarantee the right to keep and
bear a sawed-off shotgun." IIRC, no, SCOTUS held that there was insufficient information to act on, remanded the case to get that information - and IMHO it did so partly to avoid making any ruling where the defendant didn't show up ("The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go").

If the case WAS gov't-orchestrated, gotta wonder why exactly Mr. Miller was conveniently deceased at the time. Having been so roundly dismissed at lower courts, and that by allegedly pro-gun-control judge(s), and knowing the case was indeed weak (in light of "shall not be infringed"), how convenient if a bank robber, killer, hood, snitch and moonshiner just didn't show up, and how few would miss him...
...reading on, I find:

In the meantime, Miller resurfaced. On April 2, [2-3 days after the SCOTUS hearings]1939, Miller, Robert Drake “Major” Taylor, and an unidentified accomplice robbed the Route 66 Club, a Miami, Oklahoma dive.134 Armed with shotguns, they got about $80, superficially wounding two bystanders in the process.135 Apparently, it was an inside job. Earl “Woodenfoot” Clanton, the uncle of notorious bank robbers Herman and Ed “Newt” Clanton, owned the bar.136 Taylor was a former associate of Newt’s.137 And he was also a peripheral member of the O’Malleys.138 At about 9 a.m. on April 4, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma.139 The next day, around noon, a farmhand named Fisher discovered Miller’s bullet-ridden corpse on the bank of the “nearly dry” Little Spencer Creek, nine miles southwest of Chelsea, Oklahoma.140 Miller was shot four times with a .38, twice in the chest, once under the left arm, and once through the left arm. The .45 automatic next to him had been shot three times.141 On April 6, someone found Miller’s torched 1934 sedan off a dirt road in the Verdigris River bottoms, about four miles southeast of Nowata.142 It was stripped and still smoldering. A farmer said he saw it burning shortly before noon on April 3.

This was attributed to Taylor, but charges were dropped. Hmmmm. Keep an eye on the well-being of Mr. Heller, the only Parker plaintiff who still has standing.

Devastating to the "collectivist" argument:

the Court evaluated Miller’s right to possess and use a particular firearm, not his right to join the militia. Everyone knew Miller and Layton were criminals, and unlikely militiamen. They certainly weren’t pinched during a muster. But the Court didn’t ask whether Miller and Layton intended to participate in militia service. It only asked whether the Second Amendment protects NFA firearms.

Upshot of the article on the Miller verdict:
Weapons common to criminal use and uncommon (though not unheard of) to military use may be taxed into oblivion. Miller had standing to appeal, even though it was utterly plain that he meant no militia use of the weapon; the weapon was evaluated for its military suitability, and while obviously useable the court had no info regarding whether such weapons were generally used to anything approaching commonality. Miller himself was not present at the SCOTUS hearing, alive but not for long, most likely at the hands of his partner in crime (despite my implication above of greater conspiracy). The feds orchestrated the case, which did not go entirely according to plan. While the case favors the "individual" interpretation over the plainly discarded "collectivist" theory, it does not lead to the free-for-all exercise of RKBA that many of us seek.

Interesting read.

 

[ghschirtz]

Thanks for all that. Velly intelesting. It might appear Miller has been misapplied for decades. But then I would be cynic...

 

[patentmike]

Good find. Thanks.

 

[Creeping Incrementalism]

I just started Unintended Consequences. Can anyone tell me why John Ross's account of Miller is so completely different from reality, when the incident is obviously presented as history (or, at least, historical in the important events that occured)? Without ruining the rest of the book?

 

[ctdonath]

There seems to be a lot of confusion over what Mr. Miller actually did, and under what conditions he was caught. Unintended Consequences better fits the aggregate history that I've picked up about Miller over the years ... but perhaps this version is more accurate. Dunno which is closer to truth.

BTW: Mr. Ross is a THR member. Ask him!

 

[Sam Adams]

I read UI a long time ago, but I don't think that it was appreciably different from reality (as described in the LR article), i.e. that Miller was a scumbag. The LR article simply had more details.

UI also made it clear that part of the reason for the NFA was to employ a lot of otherwise unemployable revenuers (who the FBI under Hoover hated to work with, due to their non-professionalism...my, my, my how little things change, even after 73 years).

Me, I couldn't give a damn about Miller or the revenuers. I just want to be able to freely exercise the same rights that my grandfathers could have (but, regretably, didn't) to buy a full auto with no background check, no tax stamp, no LEO permission letter and no 1,000+% artificial increase in price due to an illegal federal ban on the registration of new full autos.

 

[Creeping Incrementalism]

I read UI a long time ago, but I don't think that it was appreciably different from reality (as described in the LR article), i.e. that Miller was a scumbag. The LR article simply had more details.

No dude, UI is way different. I read the pages from UI for the first time just 8 hours before reading the OP in this thread. [just got the book a few days ago].

Ross writes as if the local judge and attorney for Miller have typical 1930s heartland America, "*** is the BS" attitudes in regards to the NFA. They assume Scotus will strike down something so asinine wthout a second thought.

Reality: the attorney couldn't have cared less, and the local gudge was a big anti, and the whole thing got fast-tracked to Scotus to give the NFA legal precedent.

I don't think that it was appreciably different from reality (as described in the LR article), i.e. that Miller was a scumbag.

In UI, he is a moonshiner (victimless crime), and in reality, he was a bank robber (NOT victimless).

BTW: Mr. Ross is a THR member. Ask him!

I know he is (I searched for him on THR very briefly before buying the novel), but I won't bother to ask him why, because the obvious answer is Ross didn't bother to research any deeper than the name of the principles and just assumed. And if he had actually researched, he would have found something that is actually hugely conspiratorial, and would make for a much better novel.

But maybe this research wasn't around back when he wrote UI. Someone get Ross on the horn, tell him to write a second edition. He seems to approve of Stephen King, who expanded The Stand a lot in the second edition.

 

[gc70]

Does anyone else note the convenient timing of this article? Strong original scholarship about Miller could be very important if Parker gets to SCOTUS. Although the article is carefully couched in neutral terms, it generally reaches very pro-RKBA conclusions. I particularly liked the observation that the 2A had to be an individual right for Miller to have standing to challenge the NFA.

 

[ilbob]

Could it be that he wrote a work of fiction, and used background material without doing a whole of research to determine the accuracy of that material simply because it is a work of fiction? Something like Dan Brown novels.

BTW, I enjoyed the article. It was informative and enlightening. Thanks for bringing it to our attention.

I know he is (I searched for him on THR very briefly before buying the novel), but I won't bother to ask him why, because the obvious answer is Ross didn't bother to research any deeper than the name of the principles and just assumed. And if he had actually researched, he would have found something that is actually hugely conspiratorial, and would make for a much better novel.

But maybe this research wasn't around back when he wrote UI. Someone get Ross on the horn, tell him to write a second edition. He seems to approve of Stephen King, who expanded The Stand a lot in the second edition.

 

[LawBot5000]

Miller wasn't killed by the goverment. He had been a snitch for years and there were many habitually violent men looking to kill him for his betrayls. According to that article, the police at the time even knew who did it, but didnt have enough evidence to try him. I'm guessing all the witnesses to the murder were felons who weren't inclined to snitch on one another. Go figure. I'm also betting the police didn't see Miller's demise as much of a great loss.

I think this is a great article. It introduced me to a ton of information I hadn't heard in all my years of familiarity with Miller. Just adorable, all the political backdoor stuff going on in those times.

 

[Jeff White]

I think this is a great article. It introduced me to a ton of information I hadn't heard in all my years of familiarity with Miller. Just adorable, all the political backdoor stuff going on in those times.

Too many people think that the era we are living in is somehow unique when it comes to dirty politics. It's not, American politics has always been a dirty game. Political backdoor stuff in the US started before the Continental Congress and has been alive and well ever since. I think we do ourselves a disservice by looking back fondly on the good old days. The only difference between politics then and politics now is the methods of communication.

Politics has been called the art of the possible. Strong willed men aren't above manipulating the system to make what they want possible.

Jeff

 

[ctdonath]

I won't bother to ask him why, because the obvious answer is Ross didn't bother to research any deeper than the name of the principles and just assumed.

And thus bigotry and ignorance continues: given the opportunity to clarify a reasonable question of discrepancy between respectable publications, one chooses instead to degrade & insult one of the authors without cause.

 

[Creeping Incrementalism]

ctdonath, it is obvious which version is more accurate. In the last parapgraph of my previous post, I said it was understandable how it could happen to someone who is more into writing a novel than spending a great deal of time researching a subject that wasn't as well documented when the novel was written as is the case now.