How US v. Miller Subverted the Second Amendment

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.

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