United States v. Miller, the one-sided 1939 case that muddled gun law for years

The Supreme Court's only major Second Amendment decision of the twentieth century was argued by exactly one side. The lawyers for the government showed up. The defendants did not, and neither did anyone to speak for them. The Court heard one lawyer, took the matter under advisement, and handed down an opinion that scholars, judges and activists would spend the next seventy years reading like tea leaves.

It is a comedy of errors, though not one anybody involved would have laughed at. And it is the best example I know of what happens when the highest court in the land decides a constitutional question on half a record.

The facts: two men, a shotgun and a state line

The case is United States v. Miller, 307 U.S. 174 (1939). The defendants were Jack Miller and Frank Layton. They were charged with transporting in interstate commerce, from Claremore, Oklahoma, to Siloam Springs, Arkansas, a double-barrel 12-gauge shotgun with a barrel less than eighteen inches in length, without having registered it as the law required.

The law in question was the National Firearms Act of 1934. Congress passed it in 1934, and it imposed a tax and a registration scheme on a list of weapons that included machine guns and short-barreled shotguns. It was written as a revenue measure, resting on the taxing power rather than a flat ban, and it was backed with criminal penalties for violation. The Court's opinion leans on earlier tax cases for that reason. The NFA remains on the books today.

Miller and Layton were charged under that law with violating its transfer and registration requirements. The record said little about the two men. The case before the Court was about the shotgun and the statute, and nothing else.

The trial judge's ruling

The case came before Judge Heartsill Ragon in the federal district court for the Western District of Arkansas. Ragon sustained a demurrer to the indictment and quashed it, holding that section 11 of the NFA violated the Second Amendment. His opinion was not reported in the usual way.

That ruling put the government in an unusual position. A federal statute had been struck down on constitutional grounds, and the government's lawyers appealed directly to the Supreme Court, which was the procedure then available when a district court held a federal criminal statute unconstitutional. The Supreme Court took the case. The record, however, was thin. There had been no trial, no evidence about the shotgun, and no factual development at all, because the case had been disposed of on the pleadings.

The one-sided argument

Here is the odd part. The Supreme Court heard argument on March 30, 1939. The report of the case lists Gordon Dean, of Washington, D.C., for the United States, and then the words "No appearance for appellees." For the defendants, nobody appeared.

I cannot tell you from the sources I checked why not. The Court had no brief from the defense, no oral argument from the defense, and no lawyer to offer the strongest case for the Second Amendment right. Imagine a boxing match in which one fighter is declared the winner because the other did not arrive, and then the referee writes a treatise on what boxing is. That is something like what happened.

The Court issued its opinion on May 15, 1939. It reversed Judge Ragon and sent the case back. Justice James McReynolds wrote the opinion of the Court, a short one of a few pages, and Justice Douglas took no part.

What the opinion said

The heart of the opinion is one carefully hedged paragraph. McReynolds wrote:

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.

Read that sentence closely. It does not say the Second Amendment applies only to militia members. It says that on this record, without evidence that this particular weapon, a short-barreled shotgun, has a reasonable relationship to militia use, the Court cannot say the Amendment protects it. The test turns on the weapon.

The opinion then goes on to say that 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. It looks to history: the Militia comprised all males physically capable of acting in concert for the common defense, and 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. The opinion cites the colonial and early state militia laws as support.

The Court also said, with its usual economy, that the Second Amendment must be interpreted and applied with the purpose of assuring the continuation and render possible the effectiveness of the militia. And it concluded by reversing the district court, which had held the statute invalid, and remanding the case for further proceedings.

Three things are important to notice.

1. The Court tested the weapon, not the person. The question was whether a short-barreled shotgun was the sort of arm the amendment covered. Nothing in the opinion asks whether Jack Miller was a member of the militia.

1. The Court described the militia as the body of citizens, supplying their own arms. That description fits the Militia Act of 1792, discussed in Every able-bodied man must own a musket, the Militia Act of 1792 and its heirs. It says the arms were private and "of the kind in common use at the time."

1. The Court did not decide that no individual right exists. It said nothing of the kind. Indeed, it did not define the right in the abstract. It decided one narrow thing about one kind of weapon on a thin record.

How lower courts misread it

Now comes the muddle. Over the following decades, many lower federal courts took Miller to mean something much bigger than it said. They read the "reasonable relationship to the preservation or efficiency of a well regulated militia" language as setting up a test of the person, so that the Second Amendment protected only those who were using arms in connection with a state militia, and a "collective right" model took hold. Under that reading, an individual citizen with a firearm for self-defense had no Second Amendment claim at all.

How could a short, careful opinion produce such a result? A few reasons stand out.

First, courts quote the line and ignore the grammar. "Reasonable relationship to the preservation or efficiency of a well regulated militia" sounds like a condition on the right. It is actually a condition on the weapon: the question is whether this arm has a militia relationship.

Second, there was no counter-argument. With no defense brief, nobody pointed out how narrow the question was, and no lawyer in the case developed the individual-right reading with the historical material.

Third, courts wanted a simple rule. For much of the twentieth century, judges were not eager to extend constitutional protection to firearms, and a militia-only reading offered a convenient way to dispose of Second Amendment claims quickly. A short case that nobody had contested was an easy place to hang an easy rule.

The result was an odd legal landscape. A single decision, argued by one side, decided on one narrow question about one kind of gun, became for a generation the foundation of a constitutional doctrine it did not state. Several federal circuits adopted a collective-rights reading, and the Supreme Court did not squarely take up the Second Amendment again for sixty-nine years. If it seems strange that a right in the Bill of Rights could lie dormant that long, remember that the Court only decides the cases that come before it, and for most of that period, none presented the question squarely.

The strongest objection, stated fairly

Here is the best case that the lower courts had it right. Miller is a Supreme Court decision. It said that the Amendment must be interpreted and applied with the purpose of assuring the continuation and effectiveness of the militia, and it tied its test to the militia. A reasonable judge could conclude that the Court was telling lower courts to read the right in light of the militia clause, and the lower courts, which are bound by Supreme Court precedent, were simply following instructions. If they erred, the Court had sixty-nine years to say so, and it did not.

That is a fair argument, and here is the answer in four points.

One. Precedent binds only as far as the holding goes. The holding of Miller was that, absent evidence of a militia relationship, the Court could not say the Amendment protected a short-barreled shotgun. That is a holding about a weapon. To extend it to a holding about persons required adding words.

Two. The Court's own description of the militia cuts against the collective reading. If the militia was every able-bodied man, bringing his own arms, then the "militia relationship" test asks whether an arm is of the type a citizen would be expected to bring to a militia muster. That is a test about the arm.

Three. The Court's silence is not endorsement. The Court did not take up the question for decades, and one cannot read a theory into a refusal to hear a case.

Four. When the Court finally did speak, in 2008, it said the lower courts had misread Miller, which brings us to Heller.

What Heller said about Miller

District of Columbia v. Heller (2008) required the Court to deal with Miller directly, because the District of Columbia and the dissenting justices relied on it. Justice Scalia's majority opinion read Miller as a case about weapons. It said: "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." The opinion said that Miller "stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

It also noted that the respondent made no appearance, filing no brief and not appearing at oral argument, so that the Court heard from no one but the Government, and that the most Justice Stevens could plausibly claim for Miller was that it declined to decide the nature of the right. The majority rejected the idea that Miller limits the right to those who serve in an organized militia, and observed that the opinion's own language about the militia as all males capable of acting in concert for the common defense is incompatible with a select-militia reading.

The majority also gave the weapon test a gloss that has shaped the law since. The Second Amendment protects arms "in common use at the time" for lawful purposes, and does not protect "dangerous and unusual weapons." That is the sense in which Miller survives: as the origin of the principle that the type of weapon matters. Whether a particular weapon is protected is a question of its common lawful use, a point developed in the discussion of AR-15 rifles in The weapons of war argument against the AR-15 fails on its own terms.

In short, Heller did not overrule Miller. It read it as a case about the type of weapon, and it put the person's right back in the foreground.

What it means for a family

The lessons of Miller are not only for lawyers.

The first is about process. Courts decide what lawyers bring them. A constitutional right can be narrowed, or left unsettled, because one side lacked the means to appear. That is a reason for citizens to support the groups and lawyers who defend rights in court, and a reason to be wary of a rule that treats the silence of a case as the voice of the Constitution.

The second is about reading. A careful reader asks what a court actually held, not what later courts said it held. Miller is an exercise in that discipline. Read the sentence, not the headline.

The third is about patience. It took sixty-nine years for the Court to correct the misreading, and the correction came because litigants in Washington, D.C. pressed the question. Rights that are not exercised and defended in court tend to be forgotten in practice.

For more on how the Court got from Miller to Heller, see Justice Stevens's Heller dissent, stated fairly and answered point by point, which sets out the opposing reading at its best, and ninety years of federal gun law in the dates that changed the rules for the statutes. The site's courts page lists how the federal judiciary is organized.

The case in brief

1. In United States v. Miller (1939), Jack Miller and Frank Layton were charged under the National Firearms Act of 1934 for transporting an unregistered short-barreled shotgun across state lines, and the trial judge quashed the indictment on Second Amendment grounds.
2. The Supreme Court reversed on May 15, 1939, after an argument in which only the government appeared, in an opinion by Justice McReynolds.
3. The opinion tested the weapon, asking whether a short-barreled shotgun had a reasonable relationship to a well regulated militia, and described the militia as men bringing their own arms of a kind in common use.
4. Lower courts later read it as a militia-membership holding, a reading the text does not support.
5. Heller (2008) read Miller as a case about the type of weapon and restored the individual right.

What you can do: read the Miller opinion, which is only a few pages, and then the Heller discussion of it, and see for yourself how far apart the holding and its reputation are.