Right to Bear Arms - 1939 - US vs Miller:

On April 18, 1938 Jack Miller and Frank Layton were arrested on the grounds of being in possession of a “sawed off shotgun”.  This event led to the only Supreme Court ruling on the 2nd Amendment to date.  Both the pro-gun and gun control camps have used this ruling as evidence of their being correct.

Jack Miller and Frank Layton were driving into Siloam Springs, AR.  Local law enforcement pulled over the pair for a traffic violation.  The officers noticed a shotgun on the seat and then realized that it was shorter than 18 inches.  The particular model of shotgun was produced by the manufacturer with a barrel a little under 17 inches, and hadn't been modified.  Neither Jack or Frank were able to produce a tax stamp for the weapon, so the officers arrested them on the grounds of the National Firearms Act of 1934.

The two were indicted on June 2, 1938 by the Dist. Court United States, Western District of Arkansas for the following charge:

“…did unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-guage Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having in their possession a stamped-affixed written order for said firearm as provided and required by Section 1132c, Title 26, United States Code (June 26, 1934, c 757, #4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the "National Firearms Act" approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.”

Both men pled guilty to the charge.  However, US District Judge Heartsill Ragon did not accept their plea on the grounds that they did not have legal council.  Judge Ragon appointed Paul E. Gutensohn as their public defender.

On June 11, 1938 the case went to trial.  The defense attorney submitted the following Demurrer to Indictment: 

  1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States

  2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as the National Firearms Act, approved June 26th, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved to each of the States in the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

  3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendants under the allegations of the indictment, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

  4. That the indictment herein charges the violation of Section 1132 (c) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c) , transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the laws and statutes of the United States.

  5. That the indictment charges the defendants with "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132 (c), Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26th, 1934"; that said Section 1132 (c) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the laws and statutes of the United States.

  6.  That any provision of the said National Firearms Act, approved June 26th, 1934, which requires a registration of the said firearm as required by Section 1132 (d) of Title 26 United States Code, and not having in their possession a stamp affixed order for said firearm as provided by Section 1132 (c) Title 26 United States Code, is in violation and contrary to the said Second Amendment to the Constitution of the United States, is unconstitutional and does not state facts sufficient to constitute a crime under the statutes of the United States and the indictment further does not state sufficient facts to constitute a crime under the laws and statutes of the United States in that there was a total failure to charge a transfer of said firearms by or to the said defendants.

On the same day, US District Judge Heartsill Ragon issued the following Opinion Memo:

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, "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."

The demurrer is accordingly sustained.

On September 21, 1938, the two were re-indicted on the exact same charge (word-for-word), by the same Deputy US Attorney.  Supposedly, this was a directive of the state Attorney General.  It was legal to re-indict them because they weren't acquitted on the charge. 

On January 3, 1938, the defense attorney submitted the same Demurrer to Indictment that was submitted previously.  On January 3, 1938, Judge Heartsill Ragon once again issued a memo opinion, sustaining the demurrer.

As a member of the US Congress, Ragoon said on December 17, 1924:

“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.”

It is very odd that a person that believes handguns should be illegal would agree that legislation dealing with a sawed-off shotgun is unconstitutional.  One theory is that Judge Ragoon ruled the way he did so that the law could be “teed up” for an appeal to the Supreme Court.  This is further supported by how limited his statements were.  Another possibility is that Judge Ragoon had a change of heart regarding guns sometime in the ten years between his statement and the Miller case.  No one will probably ever know the truth.

On January 4, 1938, Paul E. Gutensohn was appointed to the position of State Senator by the Governor, filling the post opened when Senator Fred Armstrong passed away on December 10, 1938. 

A petition for appeal to the US Supreme Court was filed on January 30, 1939 by Charles Barry, US District Attorney:

Comes now the United States of America, plaintiff herein, and states that on the 3d day of January, 1939, a demurrer of the defendants Jack Miller and Frank Layton to the indictment herein was by the Court sustained, and the plaintiff feeling aggrieved at the ruling of the District Court sustaining said demurrer, prays that it may be allowed to appeal to the Supreme Court of the United States for a reversal of said judgment and order and that a Transcript of Record in this cause duly authenticated may be sent to said Supreme Court of the United States..

Petitioner submits and presents to the Court herewith a statement showing the basis of the jurisdiction of the Supreme Court to entertain an appeal in said cause.

Mr. Barry also filed an Assignment of Error with the courts on January 30, 1939:

Comes now the United States of America by Clinton R. Barry, United States Attorney for the Western District of Arkansas, and avers that in the record proceedings and judgment herein there is manifest error and against the just rights of the said plaintiff, in this, to wit:

  1. That the court committed material error against the plaintiff in holding that Section 11 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239, is invalid as violating the Second Amendment to the Constitution of the United States providing that "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."

  2. That the court committed material error against the plaintiff in sustaining the demurrer of the defendants Jack Miller and Frank Layton to the indictment.

Additionally, Mr. Barry filed a Statement of Jurisdiction with the Supreme Court on January 30, 1939 and sent a Notice of Service to the defendants, informing them that the appeal had been filed.

The Supreme Court decided to hear the case, and in March of 1939 the following brief was filed with the court by the US Solicitor General, US Assistant Attorney General, and others.  Key excerpts are posted here.  The entire brief can be found in the sources below.

"...Question Presented

Whether the District Court erred in sustaining the demurrer of the appellees to the indictment on the ground that Section 11 of the National Firearms Act is invalid as contravening the Second Amendment to the Constitution of the United States..."

"...Summary of Argument

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment..."

Supreme Court Clerk Charles Cropley wrote to Gutensohn on March 15, 1939, informing him the Supreme Court had accepted the appeal and expected to hear oral argument on March 31. 

Gutensohn replied on March 22, asking why he hadn’t received the record or the government’s brief. 

Cropley replied on March 25, informing Gutensohn the Government had submitted a typewritten brief and he could do the same. Cropley also suggested the court could postpone oral argument until April 17 if the defense needed more time to prepare a brief.

But on March 28, 1939, 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.”

The case was argued by Gordon Dean before the Supreme Court on March 30, 1939.  No one was present on behalf of the Appellees.  It is unknown where Jack Miller or Frank Layton were at the time of the hearing. 

On April 6, 1939, The Southwest American reported that Jack Miller’s body had been found in a dry riverbed, nine miles southwest of Chelsea, Oklahoma.  He had been shot 4 times with a .38 caliber handgun.  He was found with a .45 caliber handgun that had been fired 3 times.  He was 40 years old.

The Supreme Court came to a decision, and Justice James McReynolds delivered the ruling on May 15, 1939.  I have only posted key pieces of the ruling.  The entire ruling can be found in the sources below.

“In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen 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."

At the time, the effect of this ruling on the nation was not realized.  For example, the New Your Times article concerning the decision was buried on page 15 of the Tuesday, May 16, 1939 edition and bore this headline:

"Supreme Court Bars Sawed-Off Shotgun; Denies Constitution Gives Right to Carry This Weapon."

 Following the Supreme Court decision, Frank Layton pled guilty to the weapons charge.  On January 8, 1940 Judge Heartsill Ragon sentenced him to five years probation.  Layton was discharged from supervision on January 8, 1940.

 

Sources:

http://www.gunlawnews.org/Miller.html

http://www.kc3.com/pdf/PECULIAR_STORY_US_V_MILLER.pdf

 

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