It's apparently
"reprint older posts" week around here. This one is a
critique of the misinterpretations of U.S. v. Miller. I had
once considered making it a monthly feature but how many times can I
point out that Miller was decided inadequately & has subsequently
been misunderstood?
Many federal
courts rely on
U.S.
v. Miller in which the Supreme Court remanded a
case back to the District Court that had overturned the National
Firearms Act of 1934. The District Court agreed with Miller that the
NFA violated the 2nd Amendment. Justice McReynolds delivered the
opinion of the Supreme Court that the weapon in question, a shotgun
with a barrel of less than 18", was not known to the court to
have use in the militia & therefore the NFA didn't conflict with
the 2nd Amendment.
Most federal
courts since then have misconstrued this to mean that unless a person
was actually serving in a state militia with a state approved weapon
then the 2nd Amendment is inapplicable to them. This is flawed simply
because the findings in Miller did not state or even imply such a
conclusion. In fact Miller went to great lengths to establish that
"militia" meant every person capable of serving in the
common defense.
It should be
noted that Miller was indicted twice for the same violation of the
NFA; once on June 2nd, 1938 & again on September 23rd, 1938. In
the first instance a demurrer to the indictment listing 5 items was
filed on June 11th, 1938 with a memo opinion from Judge Ragon on June
11th, 1938. In the second instance a demurrer to the indictment
listing 6 items was filed on January 3rd, 1939 & a memo opinion
was given by Judge Ragon on January 3rd, 1939. In Mr. Aultice's
chapter on Jack Miller, he mentions that Miller originally plead
guilty but the judge advised him to withdraw his plea & he
appointed counsel for both him & Mr. Layton (who was indicted
along with Miller). I think if you have an interest in the case
you'll find all the documents & summaries provided by Mr. Aultice
interesting, but I'll leave it to you to click on the link above for
the detailed story.
This is Judge
Ragon's opinion as stated on January 3rd, 1939:
"The
defendants in this case are charged with unlawfully and feloniously
transporting in interstate commerce from the town of Claremore,
Oklahoma, to the town of Siloam Springs in the State of Arkansas, a
double barrel twelve gauge shot gun having a barrel less than
eighteen inches in length, and at the time of so transporting said
fire arm in interstate commerce they did not have in their possession
a stamp-affixed written order for said fire arm as required by
Section 1132 c, Title 26 U. S. C. A., and the regulations issued
under the authority of said Act of Congress known as the National
Fire Arms Act.
The
defendants in due time filed a demurrer challenging the sufficiency
of the facts stated in the indictment to constitute a crime and
further challenging the sections under which said indictment was
returned as being in contravention of the Second Amendment to the
Constitution of the United States.
The
indictment is based upon the Act of June 26, 1934, C.757, Section 11,
48 Statute 1239. The court is of the opinion that this section is
invalid in that it violates the Second Amendment to the Constitution
of the United States providing, 'A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms, shall not be infringed.'
The demurrer
is accordingly sustained."
That & the
demurrer itself are all the Supreme Court had to go on from the
defense. They did not submit a brief or attend oral arguments.
The briefs from
the government in objection to the lower court's ruling were very
detailed. Common law was cited as far back as 1686 in England to
support the idea that restrictions on arms were justifiable. What
they failed to do was demonstrate that the 2nd Amendment sought to
adopt the common law of England in its restrictive view of the Right
to Arms. But oddly enough the Supreme Court decision itself fills in
many gaps that the government left in its briefs concerning militias.
This is an
excerpt from Miller where Justice McReynolds states his overall
findings concerning the case:
"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"
He then goes on
to explain the Congressional power concerning the militia that was
granted in the Constitution & concludes that
"With
obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the
Second Amendment were made. It must be interpreted and applied with
that end in view."
He then
continues about the militia:
"The
Militia which the States were expected to maintain and train is set
in contrast with Troops which they [307 U.S. 174, 179] were forbidden
to keep without the consent of Congress. The sentiment of the time
strongly disfavored standing armies; the common view was that
adequate defense of country and laws could be secured through the
Militia- civilians primarily, soldiers on occasion.
The
signification attributed to the term Militia appears from the debates
in the Convention, the history and legislation of Colonies and
States, and the writings of approved commentators. These show plainly
enough that the Militia comprised all males physically capable of
acting in concert for the common defense. 'A body of citizens
enrolled for military discipline.' And further, that ordinarily when
called for service these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time."
Justice
McReynolds spends a great deal of time in discussing the history &
purpose of a militia:
"Blackstone's
Commentaries, Vol. 2, Ch. 13, p. 409 points out 'that king Alfred
first settled a national militia in this kingdom' and traces the
subsequent development and use of such forces.
Adam Smith's
Wealth of Nations, Book V. Ch. 1, contains an extended account of the
Militia. It is there said: 'Men of republican principles have been
jealous of a standing army as dangerous to liberty.' 'In a militia,
the character of the labourer, artificer, or tradesman, predominates
over that of the soldier: in a standing army, that of the soldier
predominates over every other character; and in this distinction
seems to consist the essential difference between those two different
species of military force.'
'The American
Colonies In The 17th Century', Osgood, Vol. 1, ch. XIII, affirms in
reference to the early system of defense in New England-
'In all the
colonies, as in England, the militia system was based on the
principle of the assize of arms. This implied the general obligation
of all adult male inhabitants to possess arms, and, with certain
exceptions, to [307 U.S. 174, 180] cooperate in the work of defence.'
'The possession of arms also implied the possession of ammunition,
and the authorities paid quite as much attention to the latter as to
the former.' 'A year later (1632) it was ordered that any single man
who had not furnished himself with arms might be put out to service,
and this became a permanent part of the legislation of the colony
(Massachusetts).'
Also 'Clauses
intended to insure the possession of arms and ammunition by all who
were subject to military service appear in all the important
enactments concerning military affairs. Fines were the penalty for
delinquency, whether of towns or individuals. According to the usage
of the times, the infantry of Massachusetts consisted of pikemen and
musketeers. The law, as enacted in 1649 and thereafter, provided that
each of the former should be armed with a pike, corselet, head-piece,
sword, and knapsack. The musketeer should carry a 'good fixed
musket,' not under bastard musket bore, not less than three feet,
nine inches, nor more than four feet three inches in length, a
priming wire, scourer, and mould, a sword, rest, bandoleers, one
pound of powder, twenty bullets, and two fathoms of match. The law
also required that two-thirds of each company should be musketeers."
He then
continues with examples of regulations concerning militias in the
states before he concludes:
"Most if
not all of the States have adopted provisions touching the right to
keep and bear arms. Differences in the language employed in these
have naturally led to somewhat variant conclusions concerning the
scope of the right guaranteed. But none of them seem to afford any
material support for the challenged ruling of the court below.
In the margin
some of the more important opinions and comments by writers are
cited. 3 [307 U.S. 174, 183] 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."
Justice
McReynolds never mentions that Miller was not a member of a state
militia & therefore had no standing. Rather he concludes that the
weapon Miller had was not of a benefit to the militia, but he even
left that open by mentioning that it was not within judicial
notice.
Now once again here's the relevant passage of Miller:
"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"
Matters of fact
are usually left to the trial court, unless it is something very
obvious such as the capital of Oregon or the allegation that a river
runs from the upper midwest to the Gulf of Mexico or that cars use
gasoline. But what is curious is that the Supreme Court at the time
had two justices with prior military experience, three if you count a
newly appointed justice who recused himself from the case due to his
missing the oral arguments. From
this
page the JPFO put together on Miller I found the
following:
"...Two
of the Court's members had seen military service, Justice Hugo Black
as a Captain in the Field Artillery in 1918 and Justice Felix
Frankfurter as a Major in the Army's Legal service. Justice William
O. Douglas, who did not take part in the decision, had been a private
in the U.S. Army in 1918."
So it should
have been possible that at the least Justice Black had some exposure
to the military's use of short barreled weapons. From the same
article from the JPFO we see numerous examples of the military use of
short barreled weapons.
"The
British issued a Sea Service flintlock blunderbuss with a 16-inch
brass barrel, circa 1760..."
Jumping to the
Late Unpleasantness 'Twixt the States:
"The
degree to which barrels were amputated depended upon the whim of the
cavalryman, or was dictated by battle damage sustained by the gun.
Thin gun barrels were often dented or bent. Since weapons were
scarce, the damaged portion was simply cut-off to restore the gun to
action. This resulted in the discovery that shortened guns were more
controllable while mounted; therefore, they were better suited for
fighting purposes."
& further:
"In
1861, the Federal government purchased 10,000 Austrian-made carbines
(KammerKarabiner, Model 1842). This muzzle-loading .71 caliber
firearm resembled a shotgun: it had a 14.5" rifled barrel and no
bayonet...The government issued three types of ammunition for this
carbine: buckshot and ball combined, ordinary buckshot, and round
balls..."
& from WW1:
"...The
Ordnance Department procured some 30,000 to 40,000 shotguns of the
short-barrel or sawed-off type, ordering these from the regular
commercial manufacturers..."
But it is
entirely possible that none of the justices were aware that short
barreled shotguns not only could be of use, but had & currently
were in use by the U.S. military.
Now Article 1
Section 8 of the U.S. Constitution provides in part for Congress to
have the authority to:
"To
declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water..."
A letter of
marque is
defined
at Findlaw.com as:
"a letter from a government
formerly used to grant a private person the power to seize the
subjects of a foreign state" & more specifically:
"authority granted to a private person to fit out an armed
ship to plunder the enemy (usu. used in pl.) (often used in the
phrase letters of marque and reprisal)".
Private citizens
were granted permission to engage an enemy nation on the seas. Now if
any of you have ever spent time aboard any ship you'll understand
what a commodity space is. A short barreled shotgun or rifle, not to
mention a belt fed machine gun, would be the preferred weapons aboard
any ship. I am sure that the U.S. Navy employed shot barreled
weapons, including shotguns, aboard her vessels & it would be
foolish to conclude that given the options we have today short
barreled automatic weapons as well as shotguns would not have been
coveted by the early American Navy.
The same part of
the Constitution also states that Congress is empowered:
"To
provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions..."
Up until the mid
1800's the military (including the militia) was expected to perform
the same duties as police officers do today. & considering that
in most states citizens have power of arrest when they see a felony
or other dangerous crime being committed it would not be unreasonable
to conclude that weapons similar to what the police departments use
would be well suited to the private citizen. If you weren't aware
police departments & other law enforcement agencies do use short
barreled shotguns among other NFA weapons.
The justification used
in Congress to pass the NFA was that certain weapons such as short
barreled shotguns were particularly suited to criminal use. Criminals
did use them on occasion. But
this
points to a another class of people at whom the sale of short
barreled shotguns was targeted: law abiding citizens.
Miller was
decided foremost on an inaccurate assumption of fact: that short
barreled shotguns had no militia use. It's obvious to anyone with
more than a moderate knowledge of firearms that literally any weapon
is suited to militia use, just as any weapon is suited for criminal
use, or police use. It is not the type or design of the weapon that
determines their suitability to a specific class of person, but the
intent of the individual wielding the weapon.
Moving on to Justice
McReynolds finding of law, I cannot begin to fathom how he would have
(if indeed he would have) justified the NFA once he was shown that
the short barreled shotgun, as well as all other weapons covered by
the NFA, do in fact have a use for the militia. But let's just forget
that point of fact for the sake of argument.
Justice
McReynolds states that, "...With obvious purpose to assure
the continuation and render possible the effectiveness of such forces
the declaration and guarantee of the Second Amendment were made. It
must be interpreted and applied with that end in view." The
preceding part of his statement merely recited the powers Congress
was granted concerning the militia.
So the
continuance & possibility of an effective militia was considered
the reason for the amendment & all interpretations must be
consistent with that goal. To which I must point out that the militia
was to be called forth to "...execute the Laws of the Union,
suppress Insurrections and repel Invasions". Justice
McReynolds states a little later on that "...The sentiment of
the time strongly disfavored standing armies; the common view was
that adequate defense of country and laws could be secured through
the Militia--civilians primarily, soldiers on occasion."
The same weapons
useful for one of the purposes would be useful for the others,
providing the wielder of said weapon was proficient with them.
Naturally a belt fed machine gun would be useful in repelling an
invasion, but also in suppressing a riot or to stop or discourage
looters during a black out. & equally a short barreled shotgun
would be useful in repelling invaders, as it would be in suppressing
a riot or discouraging looters during a black out. The same could be
said of any weapon as long it was used by someone who knew its
strengths & limitations.
If a person one
day finds himself behind a belt fed machine gun, or a short barreled
shotgun in the course of his lawful duties within the militia the
type of weapon he has will do him little good if he is not properly
trained in its use. So if the 2nd Amendment must be interpreted with
the goal of keeping a well trained militia capable of acting for the
public defense, then the courts must strike down laws which impose
burdensome fess or other restrictions on the individual obtaining &
practicing with weapons suited to militia use. That would encompass
all weapons as a militia may find itself in what we today would
consider a military combat role; a military peacekeeping role; an
irregular military role; a general police role; or a specialized
police role (such as a SWAT team).
A militia was
expected at the time to perform the duties of soldiers as well as
policeman. Fighting an invading army is the most common thought of
use for the militia, but fighting an oppressive government,
suppressing insurrections, enforcing laws, controlling &
dispersing riots, as well as helping an area during & after a
natural disaster would all fall under the duties of the militia. That
these duties have been neglected is bad for us not just because of
the misunderstanding surrounding the 2nd Amendment, but because our
obligations to our communities, states & country have been
neglected along with them.
I believe
Justice McReynolds own findings established that the militia is any
able bodied person capable of acting in the public defense. But I
will add a few quotes from those around at the time of the Revolution
as well as some who lived to see the Constitution ratified:
"A
militia, when properly formed, are in fact the people
themselves...and include all men capable of bearing arms." -
Richard Henry Lee, Additional Letters from the Federal Framer (1788)
at p. 169
"It is
reported that the Governor has said, that he has Three Things in
Command from the Ministry, more grievous to the People, than any
Thing hitherto made known. It is conjectured 1st, that the
Inhabitants of this Province are to be disarmed." - "ABC"
(PSEUD., SAMUEL ADAMS)
"The
said Constitution be never construed to prevent the people of the
United States who are peaceable citizens from keeping their own
arms." - Samuel Adams, during Massachusetts's Convention to
Ratify the Constitution (1788).
"The
people are not to be disarmed of their weapons. They are left in full
possession of them." - Zachariah Johnson, 3 Elliot, Debates
at 646
"Congress
have no power to disarm the militia. Their swords, and every other
terrible implement of the soldier, are the birthright of an
American... The unlimited power of the sword is not in the hands of
either the federal or state government, but, where I trust in God it
will ever remain, in the hands of the people." - Tench Coxe,
Pennsylvania Gazette, Feb. 20, 1788.
"No
kingdom can be secured otherwise than by arming the people. The
possession of arms is the distinction between a freeman and a slave.
He, who has nothing, and who himself belongs to another, must be
defended by him, whose property he is, and needs no arms. But he, who
thinks he is his own master, and has what he can call his own, ought
to have arms to defend himself, and what he possesses; else he lives
precariously, and at discretion." - James Burgh, Political
Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses
[London, 1774-1775].
"The
right of the people to keep and bear...arms shall not be infringed. A
well regulated militia, composed of the body of the people, trained
to arms, is the best and most natural defense of a free country..."
- James Madison, I Annals of Congress 434, June 8, 1789.
"As
civil rulers, not having their duty to the people before them, may
attempt to tyrannize, and as the military forces which must be
occasionally raised to defend our country, might pervert their power
to the injury of their fellow citizens, the people are confirmed by
the article in their right to keep and bear their private arms."
- Tench Coxe in `Remarks on the First Part of the Amendments to the
Federal Constitution' under the Pseudonym "A Pennsylvanian"
in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.
"The
right of the people to keep and bear arms has been recognized by the
General Government; but the best security of that right after all is,
the military spirit, that taste for martial exercises, which has
always distinguished the free citizens of these States....Such men
form the best barrier to the liberties of America" - Gazette
of the United States, October 14, 1789.
"Americans
have the right and advantage of being armed - unlike the citizens of
other countries whose governments are afraid to trust the people with
arms." - James Madison, The Federalist Papers No. 46 at
243-244.
"...but
if circumstances should at any time oblige the government to form an
army of any magnitude, that army can never be formidable to the
liberties of the people, while there is a large body of citizens,
little if at all inferior to them in discipline and use of arms, who
stand ready to defend their rights..." - Alexander Hamilton
speaking of standing armies in Federalist No. 29.
"The
supreme power in America cannot enforce unjust laws by the sword,
because the whole body of the people are armed, and constitute a
force superior to any band of regular troops." - Noah
Webster, An Examination into the Leading Principles of the Federal
Constitution Proposed BV the Late Convention (1787).
You get the
idea: the militia was thought of as the body of the people that were
capable of bearing arms. The law that currently defines the militia
in the United States can be found at
10
U.S.C. § 311. While it only includes males between
the ages of 17 & 45 I would say its safe to say that with the
case law concerning equality between the sexes that women should not
count themselves out of the militia just yet. & it should be
noted that whether this age range is applicable depends entirely on
the occasion for which the militia is called up; should a hurricane
ravage a town along one of our coasts or an invading force attempt
entry at our borders then I would think the time honored definition
of "any able bodied person capable of acting" would be
what's required.
& I'll beg
your forgiveness as the next bit of information I was going to
present isn't where I thought it was. It's a case the Supreme Court
decided in the early 1900's or possibly the last decade of the
1800'2. The name escapes me but it was a tax case & it more or
less held that taxation must not be for any regulatory purpose but
solely for raising revenue. I'd kindly ask for anyone who recalls the
name of this case to drop me a note as I don't expect anyone to
merely rely on my word that such a case exists or that it found what
I say it found. So if you'll pardon the lack of citation I'll submit
that a taxing measure must not be for regulation: its sole purpose
must be to generate revenue.
I must ask, is a
$200 tax on a short barreled shotgun (which prior to the NFA sold for
between $10 & $40) something that you would do to generate
revenue? I could possibly see a tax of 10% or even 50% of certain
items, but 200%? & instead of requiring a tax stamp that is
transferable without any further oversight, a request for permission
for the tax stamp, as well as much paperwork must be delivered to the
government & your request could very well be denied. Further in
1968 all weapons in existence that fell under the NFA & that were
not registered & taxed were declared contraband & wouldn't be
able to be registered after a grace period ended. In 1986 all newly
manufactured weapons were prohibited from being added to the
registration. I realize these last two things happened long after
Miller was decided, but can there be any doubt about the NFA's
purpose being one other than taxation?
To further that
I offer you
this
testimony from the congressional debate concerning the NFA
in April & May of 1934. In it Mr. Frederick (President of the
NRA) discusses his views on the proposed NFA. Several times it is
mentioned that the purpose of the bill is a regulatory measure under
the guise of a revenue measure & towards the end there is open
discussion about the goals of the legislation, which is to target
gangsters.
"A state
may not impose a charge for the enjoyment of a right granted by the
federal constitution... The power to impose a license tax on the
exercise of these freedoms is indeed as potent as the power of
censorship which this Court has repeatedly struck down... a person
cannot be compelled 'to purchase, through a license fee or a license
tax, the privilege freely granted by the constitution."
So even if on
the surface the NFA was a revenue raising measure it would not be
applicable to possession of firearms. I would offer that a sales tax
as is common to other items similar in value & collectible at the
retail purchase of a firearm would not fall under the provision of
Murdock, but I cannot see how a $200 tax on items that at the time
were as cheap as $2 (sound suppressors) & currently could still
be half the value of the tax (single barrel shotguns are commonly
available for $100) would not run afoul of Murdock.
The militia is
comprised of the people which would include anyone capable of acting
in the militia. To preserve that militia the individuals who comprise
it must be able to own & train with suitable weapons. Given the
wide range of duties the militia may be called up for any weapon may
have valid militia use. Short barreled shotguns & all other NFA
weapons would have militia use & are in current use with the
military & police forces of the U.S. A tax law must be designed
with the sole purpose of revenue & not regulation. A Right
guaranteed by the Constitution may not be taxed or licensed.
Because of these
conclusions the finding of the lower courts that the 2nd amendment
relates to a collective, rather than an individual Right & that
Congress has the authority to regulate firearms is absurd & is
not supported by the facts or the law.
