Guns in Court

The 1939 Supreme Court case of United States v. Miller is the best thing that the gun-prohibition groups have left, legally speaking.

Mr. Kopel is research director of Independence Institute. Along with Andrew McClurg and Brannon Denning, Mr. Kopel is co-author of the law-school textbook Gun Control and Gun Rights, to be published by New York University Press in the spring of 2002.

National Review Online. May 30, 2001 11:30 a.m. More by Kopel on the Miller case.

Astute media-watchers have been noticing that the Washington Post, despite its liberal reputation, has been getting ever more objective and careful in its news reporting. Meanwhile, the New York Times, despite its reputation for objectivity and accuracy, has been getting ever sloppier, and trending further and further left in its reporting — as documented by Smartertimes.com An excellent illustration of the Post's rise and the Times' degeneration can be seen in their contrasting treatment of the recent letter from Attorney General John Ashcroft to the NRA announcing his belief that the Second Amendment guarantees an individual right to arms.

Both papers provided background to the Ashcroft letter by discussing United States v. Miller, the last Supreme Court case that analyzed the Second Amendment at length. The Washington Post described the case with perfect accuracy: "In the 1939 U.S. v. Miller decision, the U.S. Supreme Court ruled that there was no constitutional right to own a sawed-off shotgun because it had no 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'"

The Times, on the other hand, misrepresented the case, applying the spin which gun prohibition groups so often use about Miller: "Mr. Ashcroft's letter, sent last Thursday in response to an inquiry from the N.R.A., rejects another interpretation — applied by the Supreme Court in its last major ruling on the amendment, in 1939 — which holds that the Constitution guarantees only a collective right to guns through state and federal militias, not an individual's right."

Note that the Post quoted directly from the Miller case, whereas the Times did not--and indeed could not, because the Miller Court never says what the Times claims.

Miller nowhere explicitly says that the Second Amendment does or does not guarantee an individual right or a collective right.

It is logically impossible, by the way, for a "collective right" to exist unless the individuals who belong to the collectivity possess an individual right. Otherwise, a "collective right" would be like "collective property" in a Communist country — meaning no right at all, but instead the government's destruction of the right.

Miller grew out of a 1938 prosecution of two bootleggers, Jack Miller and Frank Layton, for violating the National Firearms Act by possessing a sawed-off shotgun without having paid the required federal tax. The federal district court dismissed the indictment on the grounds that the National Firearms Act violated the Second Amendment [26 F. Supp. 1002, 1003 (W.D. Ark, 1939).]

Freed by the district court's ruling, Miller and Layton promptly absconded, and thus only the government's side was heard when the case was argued before the Supreme Court. Since a federal statute had been found unconstitutional, the federal government was allowed to take the case directly to the Supreme Court, under the law of the time.

If the Second Amendment only protected the National Guard, then the Supreme Court would have thrown Jack Miller's case out of court for lack of standing, since Miller, an Oklahoma bootlegger, was plainly not a member of the National Guard. Yet the Supreme Court has never ruled that individuals cannot raise Second Amendment claims. Instead, the Supreme Court sent the case back to the trial court for fact-finding about whether Miller's particular firearm (a sawed-off shotgun) was a militia-type weapon. Miller and Layton being long-gone, the district court never heard the case again.

The Supreme Court's decision was consistent with the main line of state court precedent from the nineteenth century, which said that the right to arms in state constitutions and in the Second Amendment applied to everyone, but the right included only arms suitable for militia-type use (e.g., a rifle) but not arms suitable only for brawling (e.g., brass knuckles). For example, in 1891 the West Virginia Supreme Court construed the Second Amendment to protect an individual's right to own:

"the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets-arms to be used in defending the State and civil liberty — and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperadoes, to the terror of the community and the injury of the State." State v. Workman, 35 W. Va. 367, 372 (1891).

The minority of state cases extended protection to any weapon that was suitable for personal defense. The Miller Supreme Court explained that the "the militia comprised all males physically capable of acting in concert for the common defense…ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

As the Miller case illustrates, individuals may raise Second Amendment claims even when they are not in the National Guard, and are not participating in any type of militia activity. But the only firearms that the Second Amendment protects are those that may be suitable for militia purposes.

The confusion about Miller arises from the paragraph in which the Supreme Court said that Mr. Miller's sawed-off shotgun was not, as far as the Court knew, a militia-type arm:

"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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."

The case cited by the Supreme Court, Aymette, interpreted the Tennessee Constitution's right to arms to protect an individual right to own firearms, but only those firearms suitable for militia use. In dicta, Aymette stated that the Second Amendment has the same meaning.

The Miller opinion's penultimate paragraph stated, "In the margin some of the more important opinions and comments by writers are cited." In the attached footnote, the opinion cited two prior U.S. Supreme Court opinions and six state court opinions, all of which treated the Second Amendment or its state analogue as an individual right, even as the opinions upheld particular gun controls: Presser v. Illinois, 116 U.S. 252 (1886) (Second Amendment not violated by ban on armed parades); Robertson v. Baldwin, 165 U.S. 275 (1897) (Second Amendment not violated by ban on carrying concealed weapons, because all constitutional rights contain implicit exceptions); Fife v. State, 31 Ark. 455 (Second Amendment does not apply to the states; state right to arms not violated by ban on brass knuckles); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (Michigan state constitution right to arms applies to all citizens, not just militiamen; right is not violated by ban on carrying blackjacks); State(discussed above); Duke, 42 Tex. 455 (1874) (Second Amendment does not directly apply to the states; Texas constitution protects "arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State."); Workman(see above).

The Miller footnote likewise cited treatises by Justice Joseph Story and Thomas Cooley explicating the Second Amendment as an individual right. Justice Story, in section 1891 of his treatise on constitutional law, explained, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

But the same Miller footnote also cited a Kansas Supreme Court decision which was directly contrary; that case held that the right to arms in Kansas belonged only to the state government, and in dicta made the same claim about the Second Amendment. Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905).

So while the weight of the Miller opinion and the sources it cites are on the side of individual rights, the Court did cite one lower court case that rejected individual rights. And most importantly, the Court never explicitly endorsed the individual rights view or the "collective rights" view.

Thus, my friend Andrew McClurg, a University of Arkansas Law Professor who opposes the individual-rights position, provides an accurate summary when he writes:

"The truth is, Miller offered a little something for everyone. It is an ambiguous decision that failed to unequivocally adopt either a collective right or an individual right interpretation of the Second Amendment…

"[W]hen all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case." [McClurg, "Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate," 11 Journal of Firearms & Public Policy 139 (1999).]

There is one other notable feature about Miller: It is the best thing that the gun-prohibition groups have left, legally speaking. Because Miller doesn't explicitly affirm the Standard Model of the Second Amendment (the individual-rights view) lower courts that are determined to uphold repressive gun laws can cling to it. As Southern Illinois University law professor Brannon Denning details in Can the Simple Cite be Trusted?, some lower courts have cited Miller for propositions which cannot reasonably be said to flow from Miller, in order to uphold anti-gun laws.

The tide of scholarly legal opinion today is overwhelmingly on the side of the Standard Model of the Second Amendment. Attorney General Ashcroft's recent letter is consistent with modern scholarship, and it is not inconsistent with Miller— despite what the New York Times wishes to believe.