The Strange Case of United
States v. Miller
by Dr. Michael S. Brown
In a recent letter attacking Attorney General Ashcroft's gun policy, Senator
Dianne Feinstein (D-CA) misquoted a section of a 1938 Supreme Court decision
known as United States v. Miller. Gun rights advocates loudly protested and
offered the correct quote which is more favorable to gun rights.
The Miller case is important, because it was the last time the Supreme Court
ruled directly on a Second Amendment defense. It is unusual in that people on
both sides of a political debate claim that it supports their position. Some say
that it reaffirms an individual right to own firearms and some say it does just
With the extreme polarization of the modern gun debate, this case has assumed
an importance far beyond what anyone expected in 1938. It should come as no
surprise that behind this strange state of affairs is a very strange court case.
The story begins with the National Firearms Act of 1934, which was the first
federal law regulating firearms. Prior to that time, it was generally believed
that the Constitution did not grant the federal government this power
The Firearms Act levied a prohibitive $200 dollar tax on machine guns and
sawed off shotguns. Government officials claimed that these were the weapons of
choice for the criminal gangs that evolved during prohibition.
This law was enacted during a period when a determined effort was being made
to expand federal police power at the expense of the states. A crafty
legislative tactic of that time was to construct new federal criminal laws as
commerce measures, which could be justified as revenue producers in the event
they were challenged by supporters of state's rights.
Some have speculated that the 1934 Firearms Act was passed to provide job
security for federal agents who were threatened with unemployment by the repeal
of alcohol prohibition in 1933.
Like most criminal cases, U.S. v. Miller involved some rather unsavory
Jack Miller, a bank robber and moonshiner with many enemies, felt the need to
carry a sawed off shotgun without paying the tax. He and his associate, Frank
Layton, had the misfortune to be caught transporting it from Oklahoma to
Arkansas and were arrested in June of 1938 by federal agents on charges of
violating the Firearms Act.
They were brought before United States District Court Judge Heartsill Ragon
in Fort Smith, Arkansas who encouraged them to plead not guilty and appointed an
attorney to represent them. He then found in their favor, declaring that the
relevant section of the Firearms Act was in violation of the Second Amendment
and therefore unconstitutional.
Federal law enforcement authorities were not pleased. Judge Ragon's decision
threatened the expansion of federal power, so the case was quickly appealed to
the Supreme Court.
The resulting decision issued in May of 1939 stated that "in the absence
of any evidence" the Supreme Court could not say that a sawed off shotgun
had any relationship to the militia. The critical point here is the absence of
The record shows that no arguments were made and no evidence presented on
behalf of Jack Miller or the Second Amendment. The Justice Department attorneys
were able to present their case without any opposition.
Miller had no resources to finance his argument against the government's
appeal and it is doubtful that he had any interest in defending Constitutional
rights. In fact, he died before the decision was rendered. His body was
discovered in April of 1939, with multiple .38 caliber bullet wounds. His own
.45 pistol lay by his side with four rounds expended. Perhaps he had a
legitimate need for that shotgun after all.
Frank Layton must have decided that it wasn't his job to act as a
constitutional test case. After the government's successful appeal, he entered a
guilty plea and was placed on four years probation by the original Judge Ragon.
Today it seems bizarre that a Supreme Court case could be decided without the
court hearing both sides of the argument. Yet this was the perfect opportunity
for advocates of greater federal power to advance their agenda. With no
opposition, they could not lose.
But the right to keep and bear arms was too deeply enshrined in American
culture for the court to bury it completely as modern gun control advocates like
Senator Feinstein would have us believe.
The Supreme Court opinion, written by Justice James Clark McReynolds, was
notable in that it did not completely cave in to the government demands. It is a
rather short document that is easily available on the web, so you need not
accept another person's opinion about it. Read it yourself.
The court finding simply said that no evidence had been presented to prove
that a sawed-off shotgun was a useful military weapon. Of course that was
literally correct, since Miller's side never showed up in court.
After stating the court's opinion, McReynolds included passages from various
historical sources to show that the militia consists of all able-bodied men who
have a right, perhaps even a duty, to own firearms suitable for military
service. There was little reason to include these references unless McReynolds
wished to protect the Amendment from further encroachment.
The case was returned to the lower court where Miller, if living, could have
made further arguments on his own behalf. He could have easily and correctly
argued that short-barreled shotguns had been popular military weapons in the
trenches of the First World War. It was lucky for the federal government that he
The end result was a confusing decision that is often used to support both
sides of the gun rights debate. The anti-gun lobby can say that it permits
reasonable regulation of firearms. Gun rights advocates can say that it supports
the right to own military style weapons. With this unsatisfying legal precedent
by the highest court, it is no wonder that the court system has not taken the
Second Amendment seriously.
Beginning with Cases v. United States in
1942, the court system conducted a
steady degradation of the Second Amendment that was often based on
misinterpretations of the Miller case. Each time the Miller opinion was
distorted by a lower court, the new opinion became part of case law and made it
easier for the next case to further erode Second Amendment protections.
Since judges are generally members of society's elite, it is not surprising
that they would be hostile to the idea of ordinary people bearing arms for
personal defense or to protect against tyranny.
Law schools ignored the Second Amendment, because it was not politically
correct. Students were told that it was not worthy of study, as it applied only
to the obsolete right of states to form militias. The few idealistic lawyers who
challenged the prevailing view quickly discovered that this was not a smart
It was not until the 1990's that legal scholars began to conduct serious
research into the intent of the Second Amendment. The overwhelming majority has
concluded that it does indeed guarantee an individual right to keep and bear
arms. This is gradually becoming more difficult for the legal establishment to
Legal experts say that sometime in the next few years the Supreme Court will
end its half-century of neglect and once again rule on a Second Amendment case.
U.S. v. Miller will no doubt be mentioned countless times in the media and it
will be misrepresented almost every time by self-serving politicians and biased
or poorly informed journalists.
Just remember what a strange case it was.
Dr. Michael S. Brown is an optometrist and member of Doctors for Sensible Gun
Laws: www.dsgl.org. He may be reached at: email@example.com.