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

Gun Watch ^ | 7 December, 2013 | Dean Weingarten

[marktwain]

 

 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 U.S. 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 council 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 council 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, lobbied by the KKK, had passed a pistol licensing scheme, in order to keep black people disarmed.  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 (sic) 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 gave Walter Duranty a Pulitizer Prize for effectively covering up the mass murder in the Ukraine by the Soviet Union.   The Pulitzer has never been pulled.

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


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

[marktwain]

A rabid anti-second amendment judge picks the case, the defendants, the counsel, and then conspires with the administration to push it through the Supreme Court without any opposition.

No wonder we were not told about it.

[Ruy Dias de Bivar]

The bank Miller wanted to rob is just a few miles from here.

[Jane Long]

That cartoon is so prescient for today.

[Yo-Yo]

In 1925, Michigan, lobbied by the KKK, had passed a pistol licensing scheme, in order to keep black people disarmed.

Citation? There is no evidence that 1)Michigan's pistol registration scheme was aimed at disarming blacks (since it doesn't disarm anyone,) or 2) that the KKK lobbied for the pistol registration law.

Michigan's KKK movement was short lived, and mostly anti-Catholic, not anti-black.

[marktwain]

This source says race was the primary motivator in the Michigan law:

http://www.claytoncramer.com/popular/Take%20Him%20To%20Detroit.html

This one says the KKK was very active in the Ossian Sweet situation:

http://balisunset.quazen.com/reference/biography/dr-ossian-h-sweet-1894-1960/

This one says the KKK was thriving in Detroit at the time:

http://www.detroit1701.org/SweetHome.htm

Kopel says that the law was enacted after Ossian Sweet used a handgun to defend himself.

http://www.pagunblog.com/2009/11/25/gun-control-and-discrimination/

From Your source:

“Boles said that for a few years in the 1920s the Klan exerted a strong political influence on Michigan and was close to electing Klan members to the highest political offices. In neighboring Indiana, one of the bastions of Klan memberships, the governor was a Klan member.”

I recall reading that the KKK lobbied for the law, but I have not found a direct source saying that.

As for the law not “disarming” anyone, you could not buy a pistol in Michigan without registering it, and at the time, there was very strong predjudice against allowing black people to be armed.

Here is Clayton Cramer on the subject:

Nor was the intent that led to these laws lost on judges in the North. In 1920, the Ohio Supreme Court upheld the conviction of a Mexican for carrying a concealed handgun — while he was asleep in his own bed.(52) Justice Wanamaker’s scathing dissent criticized the precedents cited by the majority in defense of this absurdity:

I desire to give some special attention to some of the authorities cited, supreme court decisions from Alabama, Georgia, Arkansas, Kentucky, and one or two inferior court decisions from New York, which are given in support of the doctrines upheld by this court. The southern states have very largely furnished the precedents. It is only necessary to observe that the race issue there has extremely intensified a decisive purpose to entirely disarm the negro, and this policy is evident upon reading the opinions.(53)

There are other examples of remarkable honesty from the state supreme courts on this subject. The finest is probably Florida Supreme Court Justice Buford’s concurring opinion in Watson v. Stone. In Watson, a conviction for carrying a handgun without a permit was overturned because the handgun was in the glove compartment of a car.(54) Justice Buford wrote:

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.(55)

http://www.constitution.org/cmt/cramer/racist_roots.htm

[Yo-Yo]

Your first citation is for Michigan's concealed handgun permit law. The original article referenced Michigan's handgun registration law.

Your source that states the handgun registration law that was passed after the Sweet trial fails to mention how blacks were barred from purchasing handguns.

From my source, which is a story about a book published by MSU Press about the KKK in Michigan, says:

Fox said that although the Klan phenomenon was national in scope, there were also regional variations: “In the South, it inevitably turned its vitriol upon African- Americans. In the Southwest, it often targeted Mexicans and, on the Pacific coast, Asians."

In Michigan, it denounced "Romanism," lashing out at immigration and "the specter of Catholicism.”

I'm not defending the KKK, nor am I disputing that in many cases gun laws across this nation have their roots in denying blacks the right to self defense.

I'm only questioning the motives behind the enactment of Michigan's handgun registration laws in the context of the original article.

[marktwain]

“Your first citation is for Michigan’s concealed handgun permit law. The original article referenced Michigan’s handgun registration law.”

Look at the fourth paragraph down. That is where the 1925 law is mentioned:

“This isn’t news. When Michigan adopted its first concealed handgun permit law in 1911, it was very strangely worded. Every county was directed to create a permit board, and to issue to its residents alone, but you only needed a permit to carry in the county where Detroit is located. The 1925 Michigan handgun permit law seems to have been passed because a black doctor named Ossian Sweet had the nerve to move into a white community, and when a mob threatened Dr. Sweet’s house and family, Dr. Sweet shot and killed one of the attackers. (The Detroit Police Department, of course, had stood by and done nothing for days.) Race has always been a fundamental part of gun control in America. All that has changed is that gun control advocates have become more subtle about their purposes.”

[gattaca]

bump

[Yo-Yo]

Yes, sir, I did read that paragraph. It explains Michigan's law that established the county gun boards for concealed pistol permits in 1911, mentions that the handgun registration law "seems to have been passed" after the Sweet incident in 1925, then the remainder of the article is about how the shall issue concealed pistol permit law is working three years after it was passed.

What it fails to mention is how blacks were denied handgun purchase permits based on race. Denied concealed handgun licenses, sure. Prior to 2001's shall issue law, many Michiganders were denied CPLs if they coudn't convince their county gun board they "needed" one.

I grew up in St. Clair Shores in the late 1960s and 1970s. I remember when the first black family moved into the high income St. Clair Shores lakefront area around 1972 and how all of his neighbors tried to collect money to buy his house from under him. Once his lawyers were finished with his neighbors, that Doctor ended up getting his house for free.

I remember the hysterics of the 1967 riots, and my white neighbors claiming that they were going to blockade 8 Mile Road holding rifles and shotguns if the riots tried to invade the suburbs.

I've seen racism here in Michigan, but what I haven't seen is institutionalized racism from Michigan's government.

[marktwain]

You have a valid point. We would have to examine the records of the period to determine what percentage of various races were granted/denied handgun purchase licenses. Then we would have to try to determine how many were deterred from even applying, based on the understanding that they would not be granted one or that the time/effort involved was discriminatory in itself.

I believe that the bulk of the evidence, such as that for literary tests for voting, shows that the law was aimed and had the effect, of disproportionately keeping black people from being legally armed.

This is rather difficult to prove statistically, especially when those who participate in the discrimination have inclination not to leave a paper trail.

The other problem is that sometimes, more often than is pleasant to contemplate, legislatures pass laws that are simply based on emotional fluff rather than any rational reason. The bans on switchblade knives come to mind.

An important point in this case is that 1925 was a peak period for racism in the United States and for the second KKK. In 1925 racism was far more approved of and sanctified by society than it was in the 1960’s and 1970’s.

I believe that the 1925 law was based on racism and that it was used to deter and prevent black people from being legally armed. I think the bulk of the evidence supports that view. I admit that I have not found the level of proof that would be needed for a scientific paper.

I appreciate you taking the time for this constructive criticism. It is well worth while.

[marktwain]

Would this edit be more to your liking?

“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.”

[MileHi]

ping

[Cboldt]

-- As for the law not "disarming" anyone, you could not buy a pistol in Michigan without registering it ... --

That may still be the case. I know it was the case in the early 1980's. I had to be fingerprinted, the pistol had to be presented to the local sheriff and registered. There was, IIRC, a brief period allowed between possession and registration, so one could remove the firearm from the seller, and take it to the cop shop.

[marktwain]

The discussion of the KKK helped jog my memory.

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. He was the 1932 version of Charles Schumer, a vociferous opponent of the second amendment.

“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).

[Yo-Yo]

Ku Klux Klan members in United States Politics

[marktwain]

I tend to be a bit wary of wikipedia articles involving politics. I noticed that the article did not show the political affiliation of most of the politicians mentioned.

I presume that means that most were Democrats.

Wiki has a very definite leftist slant.

[marktwain]

Correction: The New York Times does not award the Pulitzer Prize, Columbia University does.

[marktwain]

In the first sentence, the correct appellation for the case is District of Columbia v. Heller, not U.S. v. Heller.

[1010RD]

Neverdem, have you seen this? It deserves broader play than it has gotten.

[marktwain]

I have been trying to get it out. I posted it, best as I could, to freerepublic nearly five years ago, in 2008. Now I have a blog, my articles are regularly posted on the two biggest gun blogs on the Internets (ammoland and TTAG), and it is finally starting to move the needle.

Thanks for spreading it around. It should be standard reading for anyone who reads about U.S. v. Miller.

Here is a link to where I first posted it on freerepubic:

http://www.freerepublic.com/focus/f-news/2040593/posts