Was US v Miller a travesty?

[cropcirclewalker]

Various strings have abounded lately about short barrelled shotguns.

Personally, I even started up one wherin you, the members of THR got to sit in on the jury box and decide a virtual case based on an even previous string.

The votes currently are 30 not guilty and 2 guilty. I did not vote and I maintain that the defendent was not guilty. That's 31 to 2 for acquittal.

Now, I arise from bed to ask.

Why did not the jury get to speak in the original Miller case?

Being the cynic that I am, I wonder if it was not some clever ploy by .gov to strip us of our God given rights.

No jury got to vote on Miller. No jury got to rule on the constitutionality of NFA 34. The district judge quashed the indictment.

.gov appealed and it worked it's way up to the Supremes. Hey, that seems only fair, but in retrospect, pay attention.

There was no advocate for Miller at the Supremes. Was that fair?

Sure Miller was dead at the time but we have been hobbled with this arguably crippled decision for almost 70 years. Precedents have been set by this stupid ruling.

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.

Could that absence of evidence be as a result of no Miller advocacy?

Duh......

I know personally of US Navy Seals using sawed off shotguns in Viet Nam.

Please don't try to tell me that trench guns weren't used in WW1.

Next crime..........

They remanded the case back for trial.

What was the result of the trial?
What? No trial? Just because Miller was dead did .gov just win?

What did the jury have to say about the constitutionality of NFA 34?

IANAL but somebody who is could probably enlighten me.

When a jury nullifies a law, does the law get nullified?

The jury is allegedly the last defense of the people over tyranny. Like Prohibition, so many juries failed to find for the ridiculuous .gov in their bootlegging trials that .gov eventually (in an attempt to stop looking foolish) repealed Prohibition.

If a jury had ever been allowed to rule on Miller and had found him not guilty, would NFA been repealed?

Just asking.

 

[Creeping Incrementalism]

As far as I know, no military issued shotguns with a barrel length under 18.5" at the time. M1897 is 19.5", I believe. Today, I know shotgun manufacturers cater short barreled shotguns to special forces, so I'd say that makes them 2A-applicable, but that's just my opinion.

Juries can't nullify laws for anyone but those involved in the case in question, as far as I understand it.

Don't forget that Miller said that RKBA for the people exsists, just that <18.5" barrel didn't make it an effective military weapon.

Today, the liberals on SCOTUS don't want to hear the issue for fear of overturning various gov't bans, and conservatives don't want to hear the issue until they are sure they can win.

 

[Brett Bellmore]

IMO, we were actually fortunate that Miller was not represented at the Supreme court level.

The case was heard during the New Deal, after the Supreme court had essentially given up on enforcing the Constitution. There was no question at all that the NFA was going to be upheld by the Supreme court. The Court was out of the business of striking down laws.

The only question was how many damaging precidents the Court was going to establish in the process of upholding it. Because Miller had no representation, the Court was able to uphold the law on the narrowest possible grounds: That nobody had brought to their attention that short barreled shotguns had military uses. If there's been a lawyer present actually trying to defend Miller, the Court would have been forced to actively reject every defense he raised, and we'd be largely screwed today.

As it is, if we can ever get the Court to accept another 2nd amendment case, while they'll have to overturn a lot of lower court precidents to uphold the amendment, they won't have to overturn any of their own, which is something they're pathologically resistant to doing.

 

[Thin Black Line]

I know personally of US Navy Seals using sawed off shotguns in Viet Nam.

And I've seen this in Iraq....

 

[saltydog]

Today, the liberals on SCOTUS don't want to hear the issue for fear of overturning various gov't bans, and conservatives don't want to hear the issue until they are sure they can win.

I disagree. I personally think that if a good 2nd Ammendment case is heard that both sides (conservatives and liberals) will come to a compromise no matter what the Constitution says and "we the people" will take it and move on. Don't belive me, just look around an see what SCOTUS has already thrown out there thats still unconstitutional with nothing but a "groan" from the American People. The govt isn't going to nulify a bunch of gun control laws just because the American Pesants don't like the way things are. Just ain't going to happen.

 

[mordechaianiliewicz]

I agree with Salty Dog. The only "compromise" I could accept would be a finding saying the federal and state governements cannot ban guns outright, but laws as to their possession and use is entriely up to the states. (which would allow for the southern and western states to have some really cool stuff)

Chances are that a law change wouldn't be nearly that pragmatic or that good for us. And with the Conservative Justices having been appointed being neo-cons, I have little trust in the Judiciary until they hear far more cases.

 

[xd9fan]

And with the Conservative Justices having been appointed being neo-cons, I have little trust in the Judiciary until they hear far more cases.

and as long as the legal american voter does not change their bad voting habits this situation will never change. The neo-cons control the GOP and the conservative voter will reward this neocon party with other vote this november because they feel they have no where else to go (which is BS).

So out of fear of the "other" Pro-Govt party winning, the same old same old will continue on........and wee will never fix the court problem.

 

[geekWithA.45]

Don't forget that Miller said that RKBA for the people exsists, just that <18.5" barrel didn't make it an effective military weapon.

NO.

Miller said that NO ONE HAD PRESENTED EVIDENCE (ie, "judicial notice") that an SBS was militarily useful.

The perversity of Miller is that properly read, it says that 2A protects AT LEAST those arms that have military value, the test for which could easily be "issue by any military anywhere".

Hello M-16.....

 

[Langenator]

I read on a quite reputable gunblog (Arms & the Law, I think) that the Miller case was one that was pretty much thrown in at the end of a session to fill out the docket. The reason Miller's lawyer wasn't there was he didn't have much notice (he was several days train travel from DC), and he spent part of the time requesting an extension, which was denied. It wasn't that he didn't want to argue his case-what attorney wouldn't jump at the chance to argue at SCOTUS-but he didn't have time to adequately prepare and travel to DC.

The best that would have been presented would have been an ill-prepared argument. Whether that would have been better than none at all, I can't say.

 

[longeyes]

The perversity of Miller is that properly read, it says that 2A protects AT LEAST those arms that have military value, the test for which could easily be "issue by any military anywhere".

That's right. Give us AR-15s and AKs, 1911s and Glocks and SIGs, and keep the damn mouse guns.

 

[cropcirclewalker]

There is at least one precedent that is real bad. Namely that to win in a supreme court hearing, all you gotta do is have one of the appelates default.

Like die.

Not a good precedent.

Apparently the court was not interested in hearing both sides.

Since, the .gov never dies, it will always show up.

How many other supreme court hearings were only heard on one side and how many times if any that happened, did .gov win?

Could a body say that Miller had "ineffective counsel?" Seems to me like some rulings have been overturned on that count.

Seems to me like the supremes should have had at least the district judge that quashed the indictment testify. He is the one that .gov was appealing, not Miller.

Miller was dead. The alleged question was dead. The district judge had ruled.

The hyprocasy strikes me. They review a case wherin the "subject" was dead.......They overturn the District Judge and remand.....and yet,

The trial never gets held because the "subject" is dead.

A really bad precedent for the subjects, namely us.

 

[Bartholomew Roberts]

CCW, this may shock you; but the government makes a regular practice of not pursuing criminal defendants after they have died. They just stop trial proceedings all together at whatever stage they were at - not just at SCOTUS level; but all levels.

This is what the Court calls "mootness" - there is no reason to pursue a decision if the decision will have no practical effect on the outcome for the person who was harmed. However the court does make exceptions where injury has been involved if the type of injury is capable of both repetition and evading review - an example of this would be abortion related cases. Normally they would never reach the Supreme Court because they would be moot before they ever got there (9 months); however because the injury is repetitive (happens to others frequently) and is capable of evading review (basically there will never be a situation where it would make it to the court), the Court overlooks mootness.

This isn't conspiracy; or at least if it is conspiracy, it is one that has roots in 17th century English common law.

 

[cropcirclewalker]

Mr. Roberts,

Mootness is a concept with which I can agree. Thank you for making me aware of it.

My problem, if you had read my post is that that concept was ignored in Miller.

How do you 'splain that?

 

[ConstitutionCowboy]

Here Is Something I Put Together Last October:

Here is the main line of reasoning that shows what the Court actually said in U.S. v. Miller(1939)...

Look at what the Court said here: "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."

Referring to the text I put in bold, the Court said that they could not come to a conclusion without any evidence. The Court did not say that the "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH" did not have "...SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA,..." If the Court had come to the conclusion that the sawed-off shotgun WASN'T a viable weapon for use in the militia, it would have said so. It didn't say yea OR nay!

Further in that same paragraph the Court said, "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." Judicial notice is:

"n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun."​

Here again, the Court is saying they don't know as a matter of record, don't have reference to any common knowledge, don't have a guaranteed source to refer to the fact in question, and can't say off the top of their head whether or not the sawed-off shotgun fit in the militia and, therefore, would require evidence to make the call.

Next, look at this: The Court said, "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW AND THE CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." So, let's look at "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW ..." What does that tell you? It tells you that the Court didn't say that the conclusion of the court below was wrong, the Court said because there was no evidence presented, it cannot accept the conclusion. They said in the beginning that "In the absence of any evidence....we cannot say...". Then the Court continued with, "..AND THE CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." Notice that the Court did not reverse or vacate the judgment of the lower court. The Court instructed the lower court to reverse it's judgment and to proceed further on the case, presumably, to have the needed evidence presented to support the lower court's conclusion that the NFA is unconstitutional by showing that the sawed-off shotgun is a viable weapon for the militia.

Sadly, Miller had been murdered before the case even hit the Supreme Court, and Layton(Miller's co-defendant) accepted a plea. There was no one left to continue the case.


The Court was quite sneaky and devious in its wording with this non-ruling. Not only that, the Court, without proper amendment, amended the Constitution on its own by interjecting a requirement not present in the Second Amendment that a weapon must be shown to have a viable place in the militia. The Court's ducking of one aspect of "judicial notice" is also despicable. That "judicial notice" is the obvious capability of a sawed-off shotgun to deliver a lethal dose of shot when properly aimed and fired by a person. I would equate what a member of the militia can do with a sawed-off shotgun to a similar level of common knowledge with the common knowledge that if you place a chunk of ice in the sun, it will melt.

Disclaimer: All this is moot in the light of the Second Amendment. The Second Amendment is absolute, unambiguous, unlimited, and universally binding on any and all levels of government. Our Right to Keep and Bear Arms is not supposed to be infringed. All levels of our government need to be made to toe that line.

Woody

"There is nothing to fear in this country from free people. But, when freedom is usurped, there is something to fear for people will revolt to remain free. To all usurpers, do the math. But don't wonder the outcome when you miscalculate." B.E.Wood

 

[Bartholomew Roberts]

My problem, if you had read my post is that that concept was ignored in Miller.

No it wasn't ignored in the Supreme Court review of Miller. Mootness would explain why the lower court never heard the remand ordered by the Supreme Court.

How do you 'splain that?

Under the rules at the time (which are different now), the District Court found the 1934 NFA unconstitutional and freed Miller and Layton. The government appealed direct to the Supreme Court under the rules at the time. Miller and Layton had 15 days to object to the appeal; but being bootleggers, it apparently wasn't a high priority for them and neither Miller, Layton nor their attorney from the District Court case objected to the appeal or showed up for it.

As a result, the government was able to present their case unopposed (Much like the local traffic court doesn't dimiss the case if you fail to show up in court for your date).

 

[ACORN]

I disagree. I personally think that if a good 2nd Ammendment case is heard that both sides (conservatives and liberals) will come to a compromise no matter what the Constitution says and "we the people" will take it and move on. Don't belive me, just look around an see what SCOTUS has already thrown out there thats still unconstitutional with nothing but a "groan" from the American People. The govt isn't going to nulify a bunch of gun control laws just because the American Pesants don't like the way things are. Just ain't going to happen.
In light of the Kelo case I wouldn't count on anything in SCOTUS.
If you listen closely you can hear Jefferson spinning in his grave.

 

[saltydog]

In light of the Kelo case I wouldn't count on anything in SCOTUS.
If you listen closely you can hear Jefferson spinning in his grave.

I agree Acorn. He was rolling over in his grave before I was born.

 

[ctdonath]

IIRC, Miller actually tossed the case back to the lower court for re-trial.