Posted on 05/24/2008 12:45:08 AM PDT by neverdem
The only U.S. Supreme Court decision that specifically dealt with the right of the people to keep and bear arms, is about to get a second look. News On 6 anchor Scott Thompson reports the high court is going to take up a new Second Amendment case. When it does, it may turn a small-time hood from Oklahoma into a household name. During the Great Depression, the only thing more common than dust storms in Oklahoma may have been criminal legends. Charles "Pretty Boy" Floyd was the subject of a song written by Woody Guthrie. Hollywood immortalized Clyde Barrow and Bonnie Parker in the movie "Bonnie and Clyde." Machine Gun Kelly earned the FBI's title of "Public Enemy Number 1." But none of them can claim the distinction Claremore's Jack Miller can. "Yes, this obscure figure in Oklahoma history that people know very little about was a major figure in a U.S. Supreme Court case," said author and historian R.D. Morgan. Morgan writes non-fiction books about Oklahoma outlaws in the 20's and 30's, and the lawmen who tracked them down. He says Jack Miller's claim to fame is a surprising one. "I'm sure today he would be just absolutely shocked that he would be famous or infamous for a Supreme Court ruling," said R.D. Morgan. Morgan says Jackson "Jack" Miller spent a lot of time in the gambling halls in and around Claremore. "He was a flamboyant character, drank too much, certainly involved in the bootlegging trade for a while. He was a big talker, an exuberant personality," said R.D. Morgan. So how did a con man from Claremore end up with his name on a landmark Supreme Court decision? The journey began when he joined the Irish O'Malley gang, and started carrying a sawed-off shotgun. "The O'Malley gang was the last of the big super gangs of the 1930's, they had robbed over a dozen banks," said R.D. Morgan. Jack Miller liked to carry his shotgun while working as the gang's lookout and getaway driver. Their crowning achievement came in 1934, when they robbed the Okemah National Bank and the 1st National Bank of Okemah simultaneously. "Of course, a double bank robbery is a rare occurrence, a successful one in American history," said R.D. Morgan. "Investigators dubbed the Okemah robberies as one of the slickest pair of robberies in the history of the state." The feds eventually tracked down every member of the O'Malley gang, and granted Miller immunity so he'd testify against them. But that's not what committed Miller's name to history. Jack Miller's name ended up in the U.S. Supreme Court, thanks to his sawed-off shotgun. He and a friend were arrested for transporting it across state lines, after driving from Claremore to Arkansas. A lower-court judge sent it directly to the U.S. Supreme Court. "The first major federal firearms statute, the national firearms act of 1934, was unconstitutional because it violated the second amendment rights to keep and bear arms," said Oklahoma City University professor Michael O'Shea. Congress had passed the National Firearms Act to target gangsters and the weapons they used. It required a $200 tax stamp on Tommy guns and sawed-off shotguns. Since Jack Miller and his buddy hadn't bothered to buy one of those stamps, they gave the High Court its first chance to rule on the issue of gun control. "Not only is their name immortalized in this case, but what the Supreme Court said about their case is now sort of likely to play a role in this case at the top of the national headlines," said Michael O'Shea. The U.S. Supreme Court overruled the lower court, voting unanimously to uphold the National Firearms Act. Oklahoma City University law professor Michael O'Shea says many experts are surprised the "United States versus Miller" ruling has held up so long. It was written by James Clark McReynolds, one of the least popular justices in history, a man not known for writing thoughtful opinions. Also, Jack Miller's attorney didn't bother going to Washington D.C., to argue for his client. "Yeah, especially to decline to even file a brief on your client's behalf. You know, that's, it could be argued that that was, you know, legal malpractice," said Oklahoma City University professor Michael O'Shea. And O'Shea also says the decision didn't answer most of the questions surrounding the Second Amendment. "The fact that it sort of carefully throws in all these, has the minimum amount of analysis and just kind of throws in this grocery list of citations to authorities that point in different directions making it clear that, you know, everybody's got something to grab onto to support their view," said Michael O'Shea. The incident that preserved the United States versus Miller decision happened under what is now Oologah Lake. Before the case could be sent back to the lower court, Miller's bullet-riddled body turned up on the bank of Spencer Creek in Rogers County. He apparently died at the hands of a fellow robber, as did his U.S. Supreme Court case. "The case went away, and for the next, you know, nearly 70 years, no gun control case got no constitutional challenge to gun control got to the Supreme Court," said Michael O'Shea. For the last seven decades, Miller has rested in this grave in Claremore, forgotten by just about everyone but legal scholars and historians. One of those historians believes that would be okay with the shotgun-toting getaway driver and snitch. "The law was something I'm certain Jack Miller never thought much about, except how to get out of jail," said author and historian R.D. Morgan. Jack Miller's case will make headlines again in about a month, when the U.S. Supreme Court finally takes up another Second Amendment challenge to gun control. It's a case called D.C. versus Heller, and centers on the handgun ban in Washington, D.C.
I appreciate your posting to the effect that the Miller Court did NOT decide whether the keeping and bearing of a short-barreled shotgun was protected by the Second Amendment.
Where I think your statement is incorrect is in shifting the burden of proof to the defendants. The burden of showing that the defendants were not protected by the Second Amendment should fall on the prosecution not the defense. It should have been the prosecution's burden to prove that the short-barreled shotgun WAS NOT useful to a Militia.
Anything else would be transforming the protections of the Bill of Rights into "affirmative defenses" with an unknowable burden on the defense.
This issue is why I believe that the Miller decision is fatally flawed. It presumes that the Second Amendment only applies to "some arms", which is a limitation that the Founders could have included. There is no evidence that self-defense was to be excluded, as is now the topic of the Heller case. If self-defense is recognized, then Miller disappears as a useful precedent and the decision of the original trial court to dismiss Miller's case is seen for the correct decision that it was.
It's unclear exactly where the burden of proof should have been, but whether the burden lay with the prosecution or defense the case should have gone to trial. The prosecution presumably claimed that it had evidence that the weapons were not suitable; only a trial court would be in a position to legitimately and definitively evaluate such a claim.
I'm not clear exactly why it would be considered legal malpractice. Layton wasn't under indictment at the time U.S. v. Miller was decided. While there are some circumstances where failure to argue something immediately will forfeit the right to argue it ever, this really wasn't such a case. Had Layton refused to accept the government's plea-bargain, he would have received his first opportunity to introduce the evidence the Court said it lacked.
While it is certainly true that Miller/Layton might have fared a little better at the Supreme Court if they'd been represented there, the attorney costs would have come out of their own pockets; I don't think that would have really been a good use of funds.
The more interesting question is why the government would immediately offer a plea bargain after winning at the USSC.
I don't think the prosecution had any such idea prior to the creation of its brief before the Supreme Court. At least there is no record of any such claim to the trial court judge.
Presuming that the remand caused a trial to be held, one might ask, "what evidence establish the lack of suitability could the prosecution enter"? In other words, how would the prosecution prove the negative regarding usefulness to a Militia? Would some military expert claim that 20-inch shotguns are useful but somehow the utility evaporates completely when the barrel gets to be less than 18 inches".
I would expect that the defense, after the prosecution rests its case, might simply ask the judge for another dismissal, based on the judge determining that the prosecution, even if the jury believed everything presented, had failed to make its case. The judge could simply decide that the Supreme Court's "usefulness" test was impractical as a legal matter. It might then be for a later Supreme Court to grapple with how to determine the usefulness of some arms to a Militia. Or better yet, to decide that all arms are protected and, lacking optimal arms, anything might be useful.
I don't have a copy of the arguments, so I wouldn't know exactly what was argued. On the other hand, there's no reason to doubt that the prosecution could have cobbled up enough evidence to make a prima facie claim that the short shotgun was not suitable for use as a military weapon, especially if it were at all shorter than the shortest officially-issued weapon. Had the Supreme Court ruled that the indictment was quashed for lack of any government claim that the weapon was militarily unsuitable, the government would have responded by making such a claim, whereupon the case would either have to proceed to trial court (in which case quashing the indictment would have been useless) or back to the Supreme Court (which would mean hearing the same case, with no evidence, so as to give further instructions). Neither course of action would seem to make any sense.
Here is a link to Miller information. It's been a while since I have reviewed it, but I don't believe there is a prosecution response to the motion for dismissal.
I don't think the prosecution had properly evaluated the meaning of the Second Amendment as the trial court judge apparently had. It may have come as a big surprise that a judge would actually use the Constitution to protect the rights of a person despite Congress having gone to the trouble of infringing the right.
The prosecution may have thought that the defense was just wasting its time with such a motion. Others have posted the theory that the dismissal was part of a setup to get a weak case before the Supreme Court, though I don't see that as being very probable.
The Miller decision is weak in part because the Supreme Court didn't actually address all the arguments presented to it, despite their relevance.
The prosecution in its brief to the Supreme Court is actually arguing that "usefulness to a Militia" is NOT the criteria to use. Obviously, machine guns have great utility to any organized military unit. What the prosecution does argue, is that "the people" is not "the Militia", and therefor there are certain weapons which are not suitable to possession by "the people", regardless of any military utility because such weapons are useful to criminals.
The Supreme Court invented its own distinction. Evidently knowing that "the Militia" is simply "the people" performing their obligations to common defense, they decided that weapons could be denied to the people if they were NOT useful to a Militia, apparently regardless of how useful to criminals.
The Supreme Court clarified that the people were to report for militia duty bearing their own weapons, thus meaning that no militia membership requirement would be necessary for MIller or Layton.
It does a good job of showing that the trial judge deliberately made the case as weak as possible. The trial judge was an anti-gun partisan who, after the Miller case was thought to be on the short list for a Supreme Court appointment. He died before he could be appointed.
http://kotv.images.worldnow.com/images/incoming/PDF/0801/Law%20Review%20US%20v%20Miller.pdf
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