An Oklahoma Gangster’s Impact On U.S. Gun Laws

supercat said: "Had the case against Miller and Layton gone to trial court, the two of them would have had the opportunity to present evidence that short shotguns were sometimes used in World War I. "

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.

Where I think your statement is incorrect is in shifting the burden of proof to the defendants.

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.

You know, that's, it could be argued that that was, you know, legal malpractice," said Oklahoma City University professor Michael O'Shea.

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.

supercat said: "The prosecution presumably claimed that it had evidence that the weapons were not suitable; "

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 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.

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.

supercat said: "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 "

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.

supercat said: "... evidence to make a prima facie claim that the short shotgun was not suitable for use as a military weapon, "

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.

This link is to an extensive article about the Miller case.

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

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.