UNITED STATES V. MILLER: How the Second Amendment was Subverted

 

 Miller, of U.S. v Miller, photograph from Brian Frye

In 2008, Brian L. Frye published the seminal paper on the history of United States v. Miller, the single most important second amendment case before District of Columbia V. Heller.   While Miller no longer holds as much significance in second amendment cases as it used to, the way in which the government manipulated the case in order to deprive American citizens of their second amendment rights deserves detailed study.  In  "THE PECULIAR STORY OF UNITED STATES V. MILLER", Professor Frye's meticulous scholarship shows that much of what went on behind the scenes differs sharply from what we have been told.

Frye's essay consists of 34 pages, packed with footnotes documenting original sources.  He summarizes his conclusions in this early paragraph:

This essay suggests the conventional wisdom is only half-right, because Miller did less than generally supposed. Part I presents a brief historiography of Miller. It argues scholars have not provided an entirely convincing account of the Supreme Court’s holding in Miller, largely because they focus on the original meaning of the Second Amendment. Part II recounts the history of the case. It shows Jack Miller was a career criminal and government informant. It finds Miller was a Second Amendment test case arranged by the government and designed to support the constitutionality of federal gun control. And Part III analyzes Miller in light of this history.

I do not think that Professor Frye goes far enough.  The facts appear like a conspiracy to strip Americans of their second amendment rights through collusion of the judge, prosecutors, and defendant's counsel in the case.  The only bright spot was the actual Supreme Court decision which held that arms related to the militia were protected by the second amendment.   With appellate courts packed with Roosevelt appointees over his four terms, the appellate courts only interpreted Miller in ways to remove any protection for the second amendment.

Notice a couple significant points below.  First, that Miller and Layton were not allowed to plead guilty, and this was from Judge Ragon, who was the rabid equivalent of Charles Schumer of today.  Second, Judge Ragon appointed the defense counsel, Paul E. Gutensohn.

On June 2, 1938, Miller and Layton were both indicted on one count of violating 26 U.S.C. § 1132(c) by transporting an untaxed short-barreled shotgun in interstate commerce. Both Miller and Layton pleaded guilty, but Ragon refused to accept their plea and appointed Paul E. Gutensohn as counsel.

Now Judge Ragon has the case he wants, the defendants he wants and the defense counsel that he wants.  Judge Ragon then creates the only defense for the case, his memorandum opinion.

On June 11, 1938 Miller and Layton demurred to the indictment, claiming that it presented insufficient evidence of a transfer requiring payment of a tax and challenging the constitutionality of the NFA under the Second and Tenth Amendments.  Surprisingly, Ragon immediately issued a memorandum opinion sustaining the demurrer and quashing the indictment. He held that the NFA violates the Second Amendment by prohibiting the transportation of unregistered covered firearms in interstate commerce.

Professor Frye goes on to provide details that explain much that seems peculiar, and even insane, about the 1934 National Firearms Act.  What sense is there to make short barreled rifles and shotguns, which are the functional equivalent of pistols, subject to insanely high taxes  ($200 in 1934 was equivalent to $4,000 in  2012) and to such extreme levels of regulation that it deterred the vast majority of people from even attempting to comply?  The answer is that the 1934 NFA was designed to make pistols as hard to get as machine guns.  Judge Ragon had pushed for legislation to do this while he was in congress.  Michigan had already provided a lesson for the drafters of the 1934 NFA.  In 1925, Michigan, with a strong KKK influence in Detroit, had passed a pistol licensing scheme, similar to those in the south that were designed to deter black people from being legally armed with concealable weapons.  In 1931, Michigan had outlawed short barreled rifles and shotguns.  What was the point of keeping black people from having pistols, if they could simply procure rifles or shotguns, saw off the barrel and stock, and have a functional pistol without having to go through the permit process that they were effectively barred from?

As originally proposed, the NFA also applied to pistols and levied a $1000 tax on manufacturers and importers. However, after the NRA and other firearms associations opposed the inclusion of pistols at the public hearings, the restrictions on pistols were eliminated.  The Ways and Means Committee approved the bill without reservation, and the Finance Committee recommended amending the tax on manufacturers and importers to $500, which the House accepted.  Congress explicitly disclaimed any intention to include “pistols and revolvers and sporting arms” because “there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction.”

The effective ban on short barreled shotguns and rifles was left in the legislation, because few people owned them at the time.

Before he became a judge, Ragon represented the Fifth District of Arkansas in Congress from 1923 to 1933.  As a congressman, he was a vocal advocate of federal gun control. In 1924, Ragon introduced an unsuccessful bill prohibiting the importation of guns in violation of state law, and vigorously supported another bill prohibiting the mailing of most pistols, which eventually passed in 1927.  Basically, Ragon wanted to prohibit firearms used by criminals, including pistols.  “I want to say that I am unequivocally opposed to pistols in any connection whatever. If you want something in the home for defense, there is the shotgun and the rifle, but a pistol is primarily for the purpose of killing somebody.”  And he specifically dismissed Second Amendment objections to federal gun control. “I cannot see that violence to the Constitution which my friend from Texas sees in this bill.”  If Arkansas could prohibit pistols, so could the United States.

The bit about using shotguns for self defense could have come directly from the mouth of Vice President Joe Biden.  Perhaps VP Biden left off the rifles in his comments, because the Obama administration is trying to ban many rifles.

Judge Ragon was closely tied to the Roosevelt administration, and had been appointed to his judicial seat by President Franklin Roosevelt.

A prominent Democrat, Ragon endorsed Roosevelt in 1932 and helped push the New Deal through the Ways and Means Committee.  In return, Roosevelt made him a district judge.  The NFA was part of Roosevelt’s New Deal program, enacted with broad support shortly after Ragon took the bench. But the Federal Firearms Act of 1938 was stirring up popular opposition, much of it based on the Second Amendment.  The government needed to silence the complaints, and Miller was the perfect vehicle. Ragon had presided in an O’Malley prosecution, so he knew Miller was a crooked, pliable snitch, who wouldn’t cause any trouble. And Gutensohn was a comer who knew the game and got his due.  Ragon’s memorandum opinion presented no facts and no argument. With no defense muddying the waters, it was the government’s ideal test case.

In an extremely rare move, the government appealed the case directly to the Supreme Court.   I do not believe it could happen today.  Perhaps a legal scholar can explain how the government lawyers were able to jump over the appellate court.   Then the defense attorney, Gutensohn, (remember, appointed by Judge Ragon) steps away from the case, and does not participate in oral arguments or a written brief.

Supreme Court Clerk Charles Cropley wrote to Gutensohn on March 15, informing him the Supreme Court had accepted the appeal and expected to hear oral argument on March 31.  Gutensohn wrote back on March 22, asking why he had not received the record or the government’s brief and emphasizing that he represented Miller and Layton pro bono.

Cropley replied on March 25,informing Gutensohn that the government had submitted a type-written brief and he could do the same. In the alternative, Cropley suggested the court could postpone oral argument until April 17.

But on March 28, Gutensohn replied by telegram: “Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be present and argue case = Paul E Gutensohn.”

With no one but the government presenting any evidence in the case, a decision was made, based on the presented "facts", which included the effective lie that short barreled shotguns were not used by the military.

The decision came quickly. On May 15, 1939, Justice JamesClark McReynolds “drawled from the bench: ‘We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.’”

The New York  Times, reliably "progressive" provided journalistic cover for the judicial coup.  Note that this is seven years after the New York Times ran a series by Walter Duranty effectively covering up the mass murder in the Ukraine by the Soviet Union. 

The unanimous vote was 8-0, as Justice Douglas was recused.The papers were bemusedly pleased. The New York Times noted, “The record in the case of Miller and Dayton [sic] does not show for what purpose they were taking the sawed-off shotgun across State lines. Government officials felt, today, however, that the McReynolds decision had given them a new instrument with which to fight bank robbers, gangsters and other criminals, whose favorite arm is the sawed-off shotgun.” 

In a pattern that we see followed today, a congressman called for even more draconian gun laws, and had the gall to say that they would not hamper people from "purchasing or possessing a firearm".

And Jackson soon asked Congress to enact legislation requiring the registration of all firearms, in order to foil subversives: 

“’It is to be particularly noted that the legislation, the enactment of which I recommend, would in nowise improperly limit the freedom of action of peaceful, law abiding persons. The contemplated legislation would not hamper or hinder any person from purchasing or possessing a firearm. It would merely require him to register the firearm and to record any transfer of the weapon.’”

As often happens with snitches, Miller met an unhappy end a short while later.

At about 9 a.m. on April 3, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma. 

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. 

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 fired three times.

Miller's confederate did much better.  He got a sweetheart deal for his part in the charade.

On January 8, 1940, Layton pleaded guilty to the reinstated NFA charge and Ragon sentenced him to five years probation. 

 Judge Ragon did not live to see the political rewards for his conspiracy against the second amendment and the American people.

Ragon expected an appointment to the Eighth Circuit, but died suddenly of a heart attack on September 15, 1940.

We owe a great deal to the scholarship done by Professor Frye.  This is the definitive work on how the Miller case was set up to deprive the American people of their second amendment rights.   It is worth reading in its entirety in order to see the nuances and the attention to detail in the original sources.

Link to THE PECULIAR STORY OF UNITED STATES V. MILLER

Update: Judge Heartsill Ragon, the trial judge who set up the case for the Roosevelt administration, was endorsed by the KKK when he first won his seat as a congressman in 1922. 

"Shadow of Ku Klux Klan Grows Larger in Congress and Nation" , N.Y. TIMES , Dec. 10,1922, at 116 (Ragon was endorsed by the Ku Klux Klan and succeeded H.M. Jacoway).

Update: Edited to reflect that  New York Times does not award the Pulitzer Prize. 

Update:  The Peculiar Story of United States v. Miller appears to have been published more than a year before D.C. v. Heller.  

From the link above:  "Date posted: April 24, 2007 ; Last revised: April 18, 2008"
I suspect that the Supreme Court Justices were well aware of this article when they made the Heller decision.


©2013 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

Citizens Report from Second Amendment Rally at AZ State Capitol (8 February, 2013)

Pro-Constitution and Second Amendment Rally at Arizona Capitol, 8 February, 2013

I attended the Rally on 8 February at the Arizona Capitol that was aimed at protecting the Constitution, especially the Second Amendment. I and my brother arrived about half an hour early and were able to find parking. Some other reformers looking to protect the Constitution and roll back some of the infringements on citizens rights were arriving just as we got there. They had an extra Gadsden flag for my brother to carry, and I had brought a megaphone because of the lack of organization and an audio system at the last rally. Next time, I will bring a soap box.

The rally seemed completely spontaneous from various calls for a rally on the internet. There was no organization. There were no invited speakers. A couple of people had written speeches that were heartfelt and valid, but it was clear that they were ordinary citizens who felt compelled to come forward, not practiced politicians or public speakers.

The media wanted a spokesperson, and I was wearing a suit and carrying a megaphone, so I was drafted. I wish that I had been better prepared. My remarks were extemporaneous. But I have had a bit of public speaking experience. They were well received by the crowd. I answered a number of questions by the media. I think I did not make horrible mistakes, because I did not see any of that footage used. I tried to keep it to a few simple points. We are here to protect the Constitution and the Second Amendment. The Bill of Rights all protect each other. We are using our First Amendment rights to protect the Second Amendment. Universal Background Checks are unacceptable because they move toward registration and confiscation. Governments are far more dangerous than individual criminals.

I only found one report on the local news. They showed the rally and had a few words from me, and they quoted my brother as well. I said an attack on the Second Amendment is an attack on all the Bill of Rights.

My brother said we were there to stop infringements on the Second Amendment.

Then they gave a coverage to an anti-rights politician from the legislature.

The power of the editor was awesome. Our words were more convincing if they were written down and read, but the anti-rights politician was shown strolling with the reporter, relaxed, full body shot, with complete questions and answers given in complete sentences. His only real answer was "we must do *something*, without any explanation of how the *something* would do any good. He claimed that "universal background checks" would not keep anyone from owning guns who should not. Our responses were of close up head shots of extreme short cuts of a few words. It made us look much less credible. The visual appearance that was given was old extreme white guys versus reasonable leftist legislator.

I did not go up to give a statement. But, the point of the rally was to show opposition to the unconstitutional laws that are being pushed. Once there, and seeing that the rally was virtually spontaneous, with no organization, I felt compelled to try to make the best of it.

Lessons learned: Be prepared to give a statement. Know that you will be edited. The words were not bad, the dress was decent, but the editing of the visuals was biased. I will lose the hat while being interviewed next time. The shot of me shows the hat tilted back (no mirror), and barely shows me wearing a suit.

This morning, I saw the written story to accompany the visual clip. The written story was relatively balanced, and we came out fairly well.

Dean Weingarten

Link to video report of AZ Second Amendment Rally on 8 February

A Constitutional Right to Loaded, Unlocked Guns in the Home

Americans have the right to keep loaded, unlocked guns in their homes. This constitutionally protected right was reinforced by the Supreme Court in the D.C v. Heller decision, and in turn applied to the states in the McDonald decision.

Here are the quotes from the Heller decision:

DISTRICT OF COLUMBIA, et al., PETITIONERS v. DICK ANTHONY HELLER

Here is the first half of paragraph 4 of part IV:

“We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”

Here is the summation paragraph:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

This part of the Heller decision has not received the attention that it deserves. It effectively renders the current excuses given for infringing on the Second Amendment as a means of crime control, moot, dead, and buried. The modern fabric of misinformation designed to disarm the American people rests on a foundation that the purpose of the disarmament is to reduce crime. The vast majority of criminals obtain their firearms through theft, primarily by burglary. The guns are then distributed through the criminal distribution network, already robust from the drug war and street gangs.

The theory behind modern gun control is that if you make guns unavailable to most citizens, the criminal source of guns will dry up and you will have less guns used in crime.

Logically this theory fails on many other points, which I will not treat in this essay because of space limitation, but I will mention a few that each deserve articles of their own. These are, weapons substitution, home made guns, underground manufacturers, illegal importation, vast existing stockpiles, and the minimal number of firearms required for crime.

What the ruling in Heller does, is make it impossible to reduce the availability of guns to criminals by reducing the supply from citizens, because it accepts and recognizes the most basic and elemental of all natural rights, the right to life and by corollary, the right to self defense.

We now have a situation where the Supreme Court has ruled that the citizens have a constitutionally protected right to keep the 300 million plus existing firearms in their homes, loaded, unlocked, and ready for use in defense of self and others.

While this will undoubtedly assist in further reducing the crime rate, it also insures that criminals will have illegitimate access to the existing stock of firearms. These guns now are assured of being kept in the home... not in government armories as some anti-rights zealots have suggested. The citizens are assured of the right to keep them loaded, so ammunition will be available, not locked up separately as anti-freedom leaders have insisted. They cannot be required to be locked in mandatory safes as a means of keeping them out of criminal hands, because having them available for self defense is now a clearly recognized and constitutionally protected right.

Therefore, it is futile to attempt to restrict criminals access to firearms by restricting the citizens access to firearms. Citizens access to firearms is guaranteed by the supreme law of the land, and crime rates continue to fall.

I do not expect this elemental logic to convert many anti-freedom zealots. Their visceral hatred of an armed citizenry was never really about disarming criminals in the first place. However, there are many people who have simply accepted the anti-freedom propaganda without much thought. They may find this argument persuasive.