In a recent letter attacking Attorney General Ashcroft's gun policy, Senator Dianne Feinstein, D-Calif., 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 the opposite. 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 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 states' 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 characters. 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 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 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 evidence. 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 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 Second 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 was dead. 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 career move. It was not until the 1990s 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 ignore. 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 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: rkba2000@yahoo.com. References: Court Opinions and Documents – Patrick L. Aultice http://rkba.org/research/miller/Miller.html The U.S. v. Miller Revisited – JPFO http://www.jpfo.org/miller.htm Dianne Feinstein's Latest Incredible Lie – Merrill Gibson https://www.keepandbeararms.com/information/XcIBViewItem.asp?ID=2303       Feinstein - Not  Einstein    Ms. Feinstein gets an "F" in fulfilling her responsibilities to uphold the Constitution of the United States.  Goose-Stepping In Paradise  A Nation Of Cowards Main Index: Cases and Codes: U.S. Constitution: Second Amendment www.Findlaw.com  update;  1/22/02 U.S. Constitution: Second Amendment Second Amendment - Bearing Arms   Amendment Text | Annotations  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.   Annotations In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ''individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units. 1 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state2 or private3 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.   In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ''[with obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.''5 The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.''6 Therefore, ''[in the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''7    Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,8 and proposals for national registration or prohibition of firearms altogether have been made.9 At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer. Footnotes [Footnote 1] A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions is: Staff of Subcom. on the Constitution, Senate Committee on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). [Footnote 2] Presser v. Illinois, 116 U.S. 252, 265 (1886). See also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897). The non-application of the Second Amendment to the States is good law today. Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). [Footnote 3] United States v. Cruikshank, 92 U.S. 542 (1875). [Footnote 4]  307 U.S. 174 (1939). The defendants had been released on the basis of the trial court determination that prosecution would violate the Second Amendment and no briefs or other appearances were filed on their behalf; the Court acted on the basis of the Government's representations. [Footnote 5] Id. at 178. [Footnote 6] Id. at 179. [Footnote 7] Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the Federal Firearms Act, said: ''Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia.'' See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the ''Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia'''). See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states, not by private citizens), cert. denied 117 S. Ct. 276 (1996); United States v. Gomez, 92 F.3d 770, 775 n.7 (9th Cir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justification defense ''ensures that [the provision] does not collide with the Second Amendment''). [Footnote 8] Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The Supreme Court's dealings with these laws have all arisen in the context of prosecutions of persons purchasing or obtaining firearms in violation of a provisions against such conduct by convicted felons. Lewis v. United States, 445 U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); United States v. Bass, 404 U.S. 336 (1971). [Footnote 9] E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031-1058 (1970), and Final Report 246-247 (1971).                                             BACK