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 DC 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 the 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 don’t 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, they only interpreted Miller in ways to remove any Second Amendment protections.

Notice a couple significant points here. First, Miller and Layton were not allowed to plead guilty, and this was from Judge Ragon, who was the 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 – even insane – about the 1934 National Firearms Act.  What sense was 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 dollars)?  Let alone 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, 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. 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.

That part about using shotguns for self defense could have come directly from the mouth of Vice President Joe Biden. Perhaps ol’ Doubel Barrel Joe omitted the rifles in his comments because the Obama administration would dearly love to ban them, too.

Judge Ragon was closely tied to members of 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 ran a series by Walter Duranty effectively covering up the mass murder in the Ukraine by the Soviet Union. His 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 of his conspiracy against the Second Amendment and the American people come to fruition.

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.

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

Link to Gun Watch

 

44 Responses to How US v. Miller Subverted the Second Amendment

    • As would I but since machine guns as defined by ATF are not in common use by civilians do you really think it would swing the right way?

      • But that is the kicker. They are not in common use because of the law we want to overturn. It is a catch 22.

      • 200,000+ units is not common?

        Besides, we could apply the old “militia purposes” standard in Miller and win as all light infantry units are now issued what the NFA considers “machine-guns”

        • A are all marines, including cooks, clerks, and orderlies. So even the girl selling lemonade by the sidewalk, as part of the “militia,” could park an M-16 next to her stand.

          Did I mention the grenade launcher mounted under the barrel? very handy.

    • It is not the roll of the courts to interpret the constitution, they do not have the authority. What I see here is that un-American bastards were manipulating the system to advance there evil goals even in the early 1900’s… somewhat successfully!

      We should not buy into the lie and use the gamed system to try and get them to overturn their own goals. We need to get our cities, counties, and states to nullify ALL gun laws as infringements of 2A.

        • It often seems to be difficult for most people to see other choices. The other choices tend to be unusual, I guess I am just fucked up in the right way to see these things better than others. People are held back by self-imposed rules, the trick is to see these rules and look at what lies beyond.

          Although it may be my defiant nature that makes me find these more often. I saw somewhere a conversation about nullification. A person against the idea said it would just be struck down by the federal courts. My immediate thought was how would the FED have the Authority to stop a State from stopping the FED from enforcing laws it has no Authority to put in place in the first place… (The thought really was “What part of FOAD do you not understand?”)

  1. Wow, I researched what was available on Miller about 12 years ago and didn’t know about the corruption behind the story. I wish this could be widely disseminated, but since it takes more than 30 seconds to read, I suspect very few people will be interested.

    This is an important event in the story of gun control and it shows that human nature never changes.

    • I believe I sent you an email on this today! Your article, The Strange Case of U.S. v. Miller was well done.

      Perhaps you could update it with the new information. We also need to get the wiki article changed to show the updated scholarship.

  2. History repeats. There are no “comprimises”. The end result is intended to be a ban, except for government.

    Repeal NFA and require a NICS check at every sale. THAT’S a comprimise. Not that I’d accept comprimise on my rights.

    • There are many “compromises” that I would be willing to make. The problem is that all the “compromises” are defined by the MSM as second amendment supporters giving up something important and getting nothing in return.

      A compromise that I could support would be extending the “undetectable firearm act” for one year. In return we eliminate federal regulation of gun mufflers/silencers/suppressors, or national CCW reciprocity.

      Both of those are relatively uncontroversial reforms.

  3. People are so dumb. The majority of our major gun control laws were created out of racism or illogical attempts to stem mob problems created from Prohibition, yet trying to fight gun control laws we are called racists.

  4. I wonder how many of these landmark decisions were based on lies. On how many of them, the supreme’s new it was an attack against the Constitution and the believe system that gave us a strong moral society.

    • The truth is the Government ,for good reason ,does not want the public armed period.They hide behind mass shootings which some say the Government has had a hand in. And they could actually care less about self defense since they ALL have protection and live an elitist lifestyle anyway.
      The 2nd amendment has been under attack almost since it was originated.First with our Black brethren being persecuted on owning firearms then the general popular as a whole.You have Bloomberg and Feinstein and the likes who actually believe they are God’s gift to society by restricting your Rights to “keep and bear arms” and they have this “the cause justifies the means mentality ” that they want you and the public to buy in on with their asinine “common sense” gun control malarkey .
      These people need to be fought at every corner of the debate with NO exception ,No “common ground ” nonsense and they should be completely debunked out of power.They have no right to even talk on the subject as the Constitution is Clear as day on the 2nd Amendment.
      The NRA-ILA called me today for donations to stop Bloomberg who is actively working to repeal the 2nd Amendment.Think it can’t happen? He’s a Billionaire ,sure it could.Look at the Bozos running our Government Now,how’d they get there?
      No ,I repeat,No common ground on this topic.You don’t want to exercise you Constitutional Rights? Fine ,but I do and Dumb and dumber in Washington are not going to prevent me from the freedoms our forefathers fought and died for.
      You bonehead Liberals out there think that’s corny ,great free country think what you want.

      • “Free country”????

        Are you serious?

        On another note, on page 8 of the Heller v. D.C. Supreme Court opinion, approx. 3/4 down page, it states:

        “… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, …”

        I realize later on it indicates that certain restrictions may be “presumptively lawful” but there’s NO LEGITIMATE AUTHORITY cited to justify it and the opinion contradicts itself quite a bit.

        Fact is, whether they like it or not, if they are not “enumerated” the power in the Constitution, they DON’T HAVE IT. PERIOD!

        They have actually backed themselves into a corner on several issues pertaining to the constitutional exercise of the right protected and what weaponry is, prima facie, protected.

  5. Um, the case subverted the Second Amendment because the Supreme Court allowed a case to proceed without the defendant or any attorneys representing the defendant!!!

  6. It’s counsel, not council.

    Re Duranty – there is no doubt he was an apologist for Stalin, but your statement is factually incorrect. The New York Times does not award the Pulitzer Prize – Columbia University does, and in the case of Duranty, the Pulitzer was awarded for NYT articles he’d written prior to the famine.

    The NYT did support rescinding the award posthumously. It was Pulitzer that decided against it. You can read why in their own words at http://www.pulitzer.org/durantypressrelease

    Stating incorrect information like this in an otherwise OK article doesn’t help.

  7. Apparently nothing changes. Same game; different faces. Reminds me of those movies where the good guys fight the devil only to realize that the fight been going on since the beginning of time.

    I bet if we delved back into history you would find the same attempts at restrictions of crossbows, swords, spears, sharpened sticks, and pointy rocks. Apparent our current society does not have the market cornered on douches.

    • Nothing is going to change until the consequences of violating your oath of office are regularly applied and TANGIBLE.

  8. And where was the NRA? Then and now? What had they done to fight the decision in Miller? Until Heller, they were content to use Miller as a tocsin to get more and more members and donations, but never did anything to overturn the the NFA, the GCA, the Miller decision or the Brady Bill, etc.

    A pox on the NRA.

    • I don’t know where the NRA was in 1938, but I suspect most gun folks weren’t as vigilant about court cases back then to be worried about Miller. You’ll note that the article says the NRA had earlier got the handgun provisions taken out of the original NFA.

      And I don’t think you can forget how the Miller case must have scared the NRA. If one case could be rigged against them so effectively, then what about others? The reason the NRA avoided court challenges was because they were scared of the decision going against gun rights, as in Miller, and setting them back.

      They wisely, I think, decided to fight in the legislative arena.

      As much a we praise SAF, they couldn’t have gotten anything done earlier. Everyone had to wait until all the old school progressive judges were out of the picture to get the right decision in the case.

      • Another important point is that the Commerce Clause had not yet been subverted. This was supposed to only apply to weapons that were brought across state lines. In theory, most thought that it only applied to weapons that were brought across state lines for criminal purposes.

        Easy to see how the checks and balances were chipped away at and made impotent, now.

        It was not so clear back then.

  9. With the truth of FDR ever so slowly creeping out
    it’s no wonder that he sealed his presidential records
    for 100 years.

    • The court packing plan was all that should be needed to know what kind of politician he was… luckily that was a step too far for him.

  10. Wait, the government doesn’t want its subjects to have arms? Who knew??

    Move along. Nothing to see here.

    It’s not if, but when. They will come for our guns. I only hope I’m not alive to see it.

  11. Great article Mr. Weingarten.
    I have always wondered why Miller and counsel were not there.
    The background work on this must have taken a very long time.
    Thank you.
    Now, what can we do with this?

    • Thank Professor Frye, not me. This came out in 2008. I did what I could back then to publicize it, but it did not go anywhere.

      I recently did a search an U.S. v. Miller, and saw that there were many inaccuracies that were answered in Frye’s superb article.

      I have more experience now, more time (I retired from DOD), and TTAG exists to help get the truth out.

      We all need to keep on doing what we can, when we can. We are close to a tipping point, I believe, where we can achieve some real reform, but those tipping points only happen when people, those who understand a little better than most, keep pushing.

      So keep on pushing. Do what you can, even if it doesn’t seem like much. What you do could will be the grain of sand that moves the boulder over the tipping point, and starts us on the long road back toward a government restrained by the Constitution.

      On this issue, keep pushing the information out there. Post it on your state forum, post it on your user group. Explain how we have been lied to all these years. I find it hard to understand why the NRA hasn’t publicised Frye’s work, but we do not need them to do. When we do enough, they will run out in front of us and try to look like leaders. Better late than never.

  12. It scares me that this is just crazy enough to be true. Good luck getting people to care who don’t already though.

    People will give up anything for convenience methinks. Hence or current predicaments with the governement.

  13. The Miller case was never decided, it was remanded back to Arkansas to hod a trial where the evidence had not been collected.
    The Court said, “Not within judicial notice” meaning that there were no trial transcripts to review..
    The Second Amendment clearly says “the right of the People to KEEP and BEAR arms shall not be infringed.” It also states a reason why the amendment is essential. “A well regulated militia being necessary to a free state, [therefore] the right of the People to KEEP and BEAR arms shall not be infringed.”
    Since the trigger that started the Revolutionary War was a British attempt to confiscate arms that were available militia. Large quantities of powder, flints, swords and firearms were stored by British law in armories.
    The Second Amendment says the peoples’ militia can keep powder, shot, flints and other arms in various locations, making confiscation difficult or impossible.
    Clearly MILLER rules that individuals have a right to keep what are today called assault weapons, saying “when called to service [militia] the people are expected to appear bearing their privately owned and kept contemporary modern arms. It says of the type and character of the arms in use at the time of call up.
    If the MILLER case was combined with HELLER and McDonald, the Hughes amendment and the assault weapons bans would be ruled unconstitutional.
    If the logic of the “poll tax laws” was applied to federal gun control laws, it would be obvious, the fees and paperwork required are the same in principle and practice as the outlawed poll tax.

    • I came to this same conclusion the other day myself. If combined with current rulings, it is clear that any “military arm” is constitutionally in the reach of the ordinary man and protected. History will show “military arms” are often improvised weapons of opportunity and availability working in conjunction with regular or issued weapons/arms, essentially making any firearms (or weapons for that matter) regulation illegal.

    • Please note my previous comment above referring to page 8 of the Heller decision whereby it states:

      “.. the Second Amendment extends, prima facie, to ALL INSTRUMENTS THAT CONSTITUTE BEARABLE ARMS, …” [EMPHASIS MINE]

      That includes a lot of things including shoulder-fired anti-tank/aircraft missiles, grenade launchers/RPGs, fully automatic firearms, etc. etc.

      They try to use double speak and legal quackery later on to justify “presumptively lawful” infringements but they don’t provide convincing legitimate authority for their presumptions.

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