Misreading US v Miller

Most people even vaguely familiar with the legal issues surrounding firearms ownership have heard of the "Miller Case" (US v Miller, 1939) and recognize it as the most recent Supreme Court statement relating directly to the 2nd Amendment. Those inclined to restrict firearms tend to interpret Miller as stating that the right to own firearms is connected with the individual's membership in a militia -- ie, they argue, the National Guard in modern times. This argument is flawed on several levels, but primarily because it misreads what Miller actually says.

Before delving too deeply into the case itself, some discussion of the circumstances is warranted. The historical record indicates that Miller was charged with owning an unregistered sawed-off shotgun. This was the first real test of this particular gun control law, and Miller himself may have been a somewhat unsavory character.

Despite this, he prevailed in his initial case, getting the charge dismissed before trial on 2nd Amendment grounds. The government appealed to the District Court, and the dismissal was upheld. The government then appealed to the Supreme Court, which agreed to hear the case. However, neither Miller nor his legal counsel showed up at the Supreme Court to make their arguments. In a move that seems unusual in retrospect, the government was allowed to make their case without the defense present for a rebuttal.

It's hard to believe the Supreme Court would agree to hear a case without the defendants present! Much harder to believe that that case could go on to become one of the most important cases in modern law, and yet on Miller alone are predicated a litany of gun control laws. If you've already begun to suspect that the result of the Miller case was not what we would normally term "justice", you are correct... but it gets worse.

Since the Supreme Court was hearing the government's appeal of two lower courts dismissing the firearms charges against Miller, their decision in favor of the government merely overturned the dismissal, permitting the trial to continue in the original court. This trial never occurred; speculation is that Miller was dead or in prison by this time. In any event, Miller was never brought to trial and never convicted.

While this doesn't prevent the precedent in the case from being cited, it does weaken the case itself. Miller was given no opportunity to press his case before the Supreme Court, nor to correct it at the lower court, which could have changed the results. It's not a bad outcome for him, considering he avoided conviction, but it definitely counts as a missed opportunity for firearms rights. It also means that US v Miller should not be read as the final word on firearms law; it was a case in progress, never completed.

Having established that Miller is an unusual case, and a poor one to set binding precedent with, it is worth exploring why the case is so pervasively cited in 2nd Amendment law. The answer is simple: there is little else to cite from the Supreme Court on the 2nd Amendment, and there is nothing else to cite from the Supreme Court on the 2nd Amendment that supports gun control. Nothing. If you want to use Supreme Court precedent to uphold a challenged gun control law, you cite Miller -- you have nothing else.

There are a number of other Supreme Court cases that deal tangentially with gun control (for ex, a case where a black man was denied his civil rights, with the judge indicating that the man could arm himself if allowed his 2nd Amendment rights[1]; also a recent case overturning the federal "no guns near schools" law on a commerce-clause challenge[2]) but none of them are favorable to the gun control cause. They are thus ignored.

With the background thus examined, it is now possible to examine the Supreme Court ruling itself. The questions before the court were:

  1. Does the 2nd Amendment protect the right to own a firearm in general?
  2. Does the 2nd Amendment protect Miller's specific right to own a firearm?
  3. Does the 2nd Amendment protect the particular firearm at issue?

The government argued that all three should be answered in the negative. They claimed that Miller was not a member of a militia, and that such membership was a requirement for protection under the 2nd; they also claimed that the firearm in question (a short-barreled shotgun) was not suitable for militia use.

The court itself says:

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. 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.

Clearly, the court is ruling that the 2nd Amendment does not protect ("within judicial notice", which is important) this specific weapon, a short-barreled shotgun, because the court does not know that a short-barreled shotgun is a military weapon. By implication, the first two questions before the court are answered positively, and Miller as an individual is protected under the 2nd Amendment.

Miller was not a member of the national guard, though he could be argued to be a member of the unorganized militia (defined by Congress to be all males from 19-45 -- by modern interpretation, all males physically capable of acting in the common defense). If militia membership is required for 2nd Amendment protections, it is clearly a very broad membership encompassing most of the citizenry.

So Miller is protected under the 2nd Amendment, but his weapon is not. Why not? Well, the court says that it is not within judicial notice that his weapon would be part of the ordinary military equipment. The implication is that a weapon which IS part of the ordinary military equipment would be protected -- that is, fully-automatic assault rifles (M16s), sniper rifles, handguns, arguably even tanks and fighter planes are part of the ordinary military equipment.

The purpose for a short-barreled shotgun in those days was probably most often related to criminals, however. Shotguns are powerful weapons, and when sawed short, they could be concealed under a long coat or trench coat easily. This was before the days when concealed carry permits became popular, and a concealed firearm was often considered a criminal firearm (at least in the mind of the public).

Thus, the court was stating "This is a firearm modified for criminal use, and thus not protected." They stated this based on judicial notice, which is a form of fact-finding that is significantly less adversarial than the usual formats. Adversarial fact-finding was of course impossible, since Miller was not represented. Had Miller been represented, the obvious counter would be to provide facts to the court indicating that short-barreled shotguns were part of the normal military equipment and could contribute to the common defense. Such weapons were used regularly in trench warfare in WWI, and demonstrating this should not have been a problem.

Had the case gone to trial at the lower court, this would also have provided an opportunity for Miller to present the evidence, leading to another dismissal on the same grounds. But as noted earlier, the case did not go back to trial at the lower court, and Miller was neither tried nor convicted.

To summarize, the Supreme Court ruled by implication that Miller was protected personally despite not being a member of a militia, also by implication that weapons in the common military equipment are protected weapons, but specifically that it did not know (within judicial notice) that the short-barreled shotgun was a military weapon.

Yes, this is the same case regularly cited by those favoring gun control to support bans on handguns, machine guns, and sniper rifles (all military equipment) because the 2nd Amendment, in their theory, protects only members of the militia (in their theory, the National Guard) despite the fact the actual ruling said the exact opposite on those same points!

Makes you wonder, doesn't it?

(Note: This is an older article I've had around for a while, but not actually in the weblog software; it was just a standalone file.  It's easier to find if I put it in with the rest.)

This entry was published Tue Jul 04 23:13:18 CDT 2006 by TriggerFinger and last updated 2006-07-04 23:13:18.0. [Tweet]

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