Miller vs. US legaleze question

A legal question for discussion by our knowledge base… Re: 307 U.S. 174, United States v. Miller, “APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS”, No. 696 Argued: March 30, 1939, Decided: May 15, 1939

{ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html }

In the opinion delivered for this case by the Supreme Court, the following has always caught my attention…

“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.”

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I interpret this to say that any weapon that can be (or has been) considered standard issue equipment would fall under the protection of the 2nd Amendment for civilians.

Am I reading this correctly and would it be useful in fighting proposed AWB’s and magazine limitations?

Boxcab said:

A legal question for discussion by our knowledge base… Re: 307 U.S. 174, United States v. Miller, “APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS”, No. 696 Argued: March 30, 1939, Decided: May 15, 1939

{ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html }

In the opinion delivered for this case by the Supreme Court, the following has always caught my attention…



I interpret this to say that any weapon that can be (or has been) considered standard issue equipment would fall under the protection of the 2nd Amendment for civilians.

Am I reading this correctly and would it be useful in fighting proposed AWB’s and magazine limitations?

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My read of Miller...that a sawed off shotgun (SBS) was no longer factory/stock, it was no longer an "arm in common use", therefore the SBS was not protected. The dicta (not sure if this is a 'holding') used in Miller:

Miller Opinion said:

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.

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Exclusionary, vs Inclusionary....an SBS is not an arm in common use..

That alone doesn't give us any "Holy Grail". It says an SBS is not an "Arm in Common Use", ergo the SBS is not protected. The groundwork for goodness WAS laid however....Fast forward to 2008 and Heller. Heller Opinion.

Heller quotes Miller and the "common use" for "lawful purposes" standard a number of times.

Pg 2/157

Heller Opinion said:

United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

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Pg 2/157

Heller said:

Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

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Pg 55/157

Heller said:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only thoseweapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean thatthe National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense.

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Pg 58/157

Heller said:

We also recognize another important limitation on theright to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

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Heller's interpretation and reading of Miller is where the true goodness comes...

One would think that the AR and AK would be the most common in the Country today, as well as the 30 round magazine outside of MD. Note that it can be argued that the 30 round magazine is not in common use in MD only because of the current 20 limit and therefore would be common if not for that (as can be shown in all states without limits.)

Trust me, 30 rd mags are in common use in Maryland too.

pilotguy said:

One would think that the AR and AK would be the most common in the Country today, as well as the 30 round magazine outside of MD. Note that it can be argued that the 30 round magazine is not in common use in MD only because of the current 20 limit and therefore would be common if not for that (as can be shown in all states without limits.)

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AR's and any form of a Semi-auto grab is going to fail a challenge, zero doubt in my book.

Magazines (30/20/10) may or may not fall into that analysis, depending how brought up. Particularly detachable with rifles. It won't be as much of a slam dunk as an outright EBR ban/grab.

For example, is a detachable magazine the "arm", and therefore what is protected? Just thinking out loud...

Registration....as much as I hate to say it, would be a different battle on different grounds, not within the Miller/Heller "in common use" realm....

There will be Court fights in the not so distant future to flesh this out, I'm sure.

krucam said:

AR's and any form of a Semi-auto grab is going to fail a challenge, zero doubt in my book.

Magazines (30/20/10) may or may not fall into that analysis, depending how brought up. Particularly detachable with rifles. It won't be as much of a slam dunk as an outright EBR ban/grab.

For example, is a detachable magazine the "arm", and therefore what is protected? Just thinking out loud...

Registration....as much as I hate to say it, would be a different battle on different grounds, not within the Miller/Heller "in common use" realm....

There will be Court fights in the not so distant future to flesh this out, I'm sure.

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Unless one of the 4.5 "conservative" justices are replaced by an Obama appointee. Then we'll all have muskets.

teratos said:

Unless one of the 4.5 "conservative" justices are replaced by an Obama appointee. Then we'll all have muskets.

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Maybe. Judicial appointments don't always work out like presidents expect, and justices sometimes have their views change over time.

I think that, based on existing decisions:
1. Semi-auto ban: unconstitutional.
2. Mag ban: questionable, not a lot of law. Might fall into Miller territory where military use is the decider. (100rd drum - banned, 30rd mag - fine)
3. Broad registration: will probably be found constitutional. We already lost this fight with the NICS system, really - there can be "reasonable" regulation of who can own a gun.

I guess the only solace we'll have if an AWB passes in Maryland is that it might find itself stayed in legal limbo for years while the courts sort it out post-Heller/McDonald. Ah, Maryland, why do you always have to be the test case?

teratos said:

Unless one of the 4.5 "conservative" justices are replaced by an Obama appointee. Then we'll all have muskets.

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The Supreme Court historically has refused to change even the most egregious decisions of the past... Slaughterhouse anyone. Not that they may not try, but history is pretty good on that.

krucam said:

Heller's interpretation and reading of Miller is where the true goodness comes...

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krucam, thanks for jumping in!

I was reading Miller as that if it is in common use by the Military, it would be acceptable for the Militia, thus civilians, to own and use. An M4 (select fire) or M9 semi handgun, being standard issue, would be acceptable by default.

This would defeat the "military weapons in the hands of civilians" arguments we are hearing. The way I read it, the 1939 Supreme Court said that if it is in common use by the military/militia, it is covered by the 2nd A. Heller's icing just confirmed that WE are the Militia and the 2nd A did indeed mean US. Any law that says we cannot have “military style” guns is invalidated by both.

Thanks again for helping me get my head around this.

erwos said:

Maybe. Judicial appointments don't always work out like presidents expect, and justices sometimes have their views change over time.

I think that, based on existing decisions:
1. Semi-auto ban: unconstitutional.
2. Mag ban: questionable, not a lot of law. Might fall into Miller territory where military use is the decider. (100rd drum - banned, 30rd mag - fine)
3. Broad registration: will probably be found constitutional. We already lost this fight with the NICS system, really - there can be "reasonable" regulation of who can own a gun.

I guess the only solace we'll have if an AWB passes in Maryland is that it might find itself stayed in legal limbo for years while the courts sort it out post-Heller/McDonald. Ah, Maryland, why do you always have to be the test case?

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Regarding your #3...NICS is narrowly tailored to fit an existing need...the need to ensure the purchaser of a commercially sold firearm is not a felon. With NICS in existence, what additional purpose does individual firearms registration serve, especially those cities that require it by completing forms, going for interviews with the licensing official, taking photographs, paying fees, getting moral character references and repeating this process every few years?

In some states you can complete a fishing license application online, pay a fee via credit card and receive your fishing license within a couple of weeks. Do you have to register every fishing pole? These are the same states with the absurdly long and inconvenient licensing process for even possessing firearms in your own home.

With NICS, individual firearms registration is an unncessary prior restraint. Even if a reason could be determined for individual firearms registration, if this online application system is available for fishing licenses why can't it be used for firearms owners? I'll tell you why...the onerous individual firearms registration process in these cities and states, for mere possession, is to discourage the possession of firearms and to give law enforcement a reason to seize firearms from the non elite.

teratos said:

Unless one of the 4.5 "conservative" justices are replaced by an Obama appointee. Then we'll all have muskets.

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No. We'll still have AR's and AK's. Those guys want to take them from our cold dead hands remember?

Let's take this the way it is actually read:

In the absence of any evidence

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At the District court, there was no evidence offered 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,

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Therefore,

we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

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We can say that everyone "knew" that trench guns were used extensively during WW1. And that is possibly correct (but by no means, conclusive). But such a record did not exist at the district court. Since no record was developed at the lower court, the Justices concluded:

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.

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So regardless of what common knowledge may have been as regards "trench guns, without a judicial record there was no official judicial notice.

McReynolds then goes on to discuss things that aren't relevant to this discussion. However, what is left out of the OP and is relevant, is the closing lines of the decision:

We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

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Meaning that the decision is voided and remanded back to the district court to further develop the record. While we cannot say if the SCOTUS would have had a different opinion, had a complete record been made available, what we do know is that McReynolds was a lazy Justice and succumbed to Roosevelt's "New Deal."

We also know (now) that Miller was dead, by the time of the decision. So the case was never reheard and remains to this day, a very unusual case, in the annuals of Justice.

Today, we have to juxtapose the Miller "common military use" definition with the Heller "common use" by civilians. This is why Justice Scalia was circumspect when he addressed the M16. The M16 (and SBS) are in "common military" usage, but because of the NFA, such arms are not in "common use" by civilians. It's a thoroughly circular argument and we simply won't win this argument, any time soon. If ever.

For a brief (if biased) overview of Miller, see "The strange case of United States v. Miller"

For a better picture, see "The Peculiar Story of United States v. Miller "

To understand the use of SBS in WW1, see America's Munitions, 1917-1918

What we can hope for is that the ubiquity of semi-auto AR15s place them squarely in the camp of "arms in common use" under Heller's reading of Miller. Other weapons with identical performance characteristics come along for the ride.

The most fundamental function of the second amendment is that of an equalizing force against unjust violence, whatever the source. Since weapons possessed by criminals will never be subject to magazine restrictions, such restrictions only disadvantage the law abiding, which eviscerates the amendment of its core equalizing function.

It's a basic extrapolation of "when we outlaw guns, only outlaws will have guns" but I have yet to see anyone undercut the logic.

Al and Maestro,

Thanks, you both gave me alot to mull over. I'm looking at ways to present established SCOUS law to my Representitives, as they consider proposed changes to the laws.

Boxcab said:

Al and Maestro,

Thanks, you both gave me alot to mull over. I'm looking at ways to present established SCOUS law to my Representitives, as they consider proposed changes to the laws.

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The Scotus has not opined on the Hughes amendment which is what the antis is looking at as a foundation of their reasoning.