Today in Supreme Court History: May 15, 2000

5/15/2000: U.S. v. Morrison is decided.

Comments

[Dan Schiavetta]

United States v. Miller, 307 U.S. 174 (decided May 15, 1939:) Second Amendment guarantees only right to keep and bear arms in “reasonable relationship to the preservation or efficiency of a well regulated militia”. Contains long discussion of Articles of Confederation period, such as sentiment in favor of militias so as to obviate creation of a standing army and militia possession and training requirements states placed on males. The sawed-off shotgun at issue was not reasonably a militia weapon and therefore statute penalizing possession of such weapons (and requiring federal agency approval of any ownership or transfer of militia-type weapons) was within Congress’s power.

United States v. Morrison, 529 U.S. 598 (decided May 15, 2000): statute allowing civil remedy for victims of gender-related violence was outside Congress's Commerce Clause power nor did Equal Protection clause apply to private conduct

In re Gault, 387 U.S. 1 (decided May 15, 1967): juvenile and his parents are entitled to due process (e.g., assistance of counsel, protection against self-incrimination) before commitment to “industrial school” as a delinquent

Fong Yue Ting v. United States, 149 U.S. 698 (decided May 15, 1893): United States could expel without due process any Chinese laborer who does not get a residency card from the IRS within the first year

Kindred Nursing Centers et al. v. Clark, 581 U.S. --- (decided May 15, 2017): effect under Kentucky law of power of attorney given to relatives of nursing home resident was to exclude agreeing to arbitration from scope of authority and therefore was in violation of the Federal Arbitration Act; arbitration clause in contract therefore applied and lawsuit alleging negligence was dismissed

Randon v. Toby, 52 U.S. 493 (decided May 15, 1851): “The buying and selling of negroes, in a State where slavery is tolerated, and where color is prima facie evidence that such is the status of the person, cannot be said to be an illegal contract, and void on that account. The crime committed by those who introduced the negroes into the country does not attach to all those who may afterwards purchase them.”

Kulko v. Superior Court of California, 436 U.S. 84 (decided May 15, 1978): California court had no jurisdiction over father in alimony dispute because he did not live there even though he had consented to mother and children moving to California from New York in contravention of the separation agreement

Hubbard v. United States, 514 U.S. 695 (decided May 15, 1995): 18 U.S.C. §1001 (criminalizing false statements made to federal officials) doesn’t apply to lying in court (overruling United States v. Bramblett, 1955)

Stephens v. Cherokee Nation, 174 U.S. 445 (decided May 15, 1899): application for “citizenship” in tribe allowing participation in election of tribal commission and access to United States courts can be denied without due process safeguards

[F.D. Wolf]

United States v. Miller has an interesting background, indicating that the case was manipulated for the specific purpose of generating a Supreme Court ruling that the federal government had the power to regulate firearms, and that the government, defense counsel, and the district judge were all in on it.

Jackson "Jack" Miller and Frank Layton were arrested and charged with bringing an untaxed sawed-off shotgun across state lines (from Oklahoma to Arkansas) in violation of the National Firearms Act of 1934, the first federal law to widely regulate certain firearms. The NFA was a gun ban masquerading as a revenue bill. (No one was going to pay a $200 tax on an $8 shotgun.) This design of the law was to ensure its constitutionality, as, at the time, it was felt an explicit ban might not fall under Congress' enumerated powers, but the law, as written, could be justified under Congress' taxation powers.

Miller was a washed-up career criminal who had previously been a member of the O'Malley gang, a notorious crew of bank robbers who had operated during the Depression. When the entire gang (including Miller) was captured and charged in 1935 in Oklahoma, Miller turned state's evidence and testified against the gang in exchange for immunity, all of whom were convicted. All of this would have been very well known by all involved when Miller was arrested in the instant case in 1936.

Miller and Layton were brought before District Judge Heartsill Ragon of the Western District of Arkansas, where they both pled guilty. Heartsill refused to accept their plea and appointed Paul E. Gutensohn as defense counsel. Gutensohn entered a demurrer on behalf of his clients, which Ragon immediately sustained, holding that the NFA violated the Second Amendment. Miller and Layton were free men and immediately disappeared. The next day, Arkansas Governor Carl Bailey appointed Gutensohn to a vacant state senate seat. Here is Ragon's opinion, in its entirety:

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132c, Title 26 U.S. C.A., the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S. C.A. § 1132 et seq.

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, U.S.C.A.

The indictment is based upon the Act of June 26, 1934, C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. § 1132j. 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, U.S.C.A., 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.

United States v. Miller, 26 F. Supp. 1002, 1002-03 (W.D. Ark. 1939).

Why would a district judge write a brief memorandum opinion declaring a major piece of federal legislation unconstitutional, yet offer not a single citation or argument in support of it? Because he didn't believe what he wrote and wanted the Supreme Court to reverse him. Before President Franklin Roosevelt had appointed him to the federal bench, Heartsill Ragon had been a five-term member of the House from Arkansas. While there, he had perhaps been its most zealous advocate for gun control. He wanted to ban all firearms except rifles and shotguns. “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," Ragon had declared on the House floor in 1924, and he had summarily dismissed Second Amendment concerns to gun bans as absurd.

The government appealed Ragon's ruling to the Supreme Court, and the Court accepted it. When the Court's clerk advised Gutensohn that the Court would hear the government's appeal, he responded that he had represented the defendants pro bono, had been unable to communicate or secure funds from them to pursue the appeal, and advised the Court to proceed on the government's brief alone. On March 30, 1939, the Supreme Court heard the government's appeal. No one argued on behalf of Miller. On May 15, the Court released its opinion reversing Judge Ragon.

As, a postscript, when the Supreme Court issued its opinion in United States v. Miller, Jack Miller had been dead for more than a month. His body had been discovered in an Oklahoma creek bed on April 3. Miller had been shot four times with a .38; Miller's own .45, found next to him, had been fired three times. Perhaps Miller would have been better served by a sawed-off shotgun. Miller had probably been killed for snitching on the O'Malleys. One Robert Taylor, a former O'Malley associate, was charged in the death of Miller, but the charges were eventually dropped for lack of evidence.

[Dan Schiavetta]

"the case was manipulated for the specific purpose of generating a Supreme Court ruling that the federal government had the power to regulate firearms"

Why would they want to do that?

[F.D. Wolf]

The federal government wanted to regulate firearms further, but wasn't certain if it had the constitutional authority to do so, so it needed a test case. Needless to say, it wanted to win the test case, so it rigged the odds in its favor, by finding defendants who wouldn't even participate in the appeals process, which would not have been possible if the appeal had been from a conviction rather than a dismissal.

It might be noted that while congressional authority to regulate firearms might have been in some doubt when the NFA was first enacted in 1934, given the composition of the Supreme Court at the time, it would not have been in much doubt by 1939 when Miller was decided. In the interim, Justice Roberts' "switch in time that saved nine" had occurred in 1937, and three of the "Four Horsemen" had left the Court, replaced by FDR appointees. (The case had been argued in front of only seven justices; Chief Justice Hughes was ill, and William Douglas had been nominated to replace the retired Justice Brandeis, but not yet confirmed. Douglas had been confirmed by the time the opinion was issued. but, naturally, did not participate in the opinion.)

[F.D. Wolf]

I'll add a footnote that some have suggested that the National Firearms Act of 1934 was, at least in part, a jobs program for all the federal agents and employees who had been tasked with enforcing Prohibition, which had just been repealed the previous year.

[Dan Schiavetta]

It could not have been just for that. Why was the NFA enacted?

[Jerry B.]

"The sawed-off shotgun at issue was not reasonably a militia weapon."

But the Nock Volley Gun, used by the British military from the 1780s, was, in effect, the same sort of weapon.

https://en.wikipedia.org/wiki/Nock_gun

[Michael P]

Short-barreled shotguns were also very effectively used in World War I, and are commonly used by police as "riot shotguns", but the Miller Court then did not even try to find out whether their confident assertion was at all true.

[Frank Drackman]

My money's on the Lizard King

[Mr. Bumble]

"United States could expel without due process any Chinese laborer who does not get a residency card from the IRS within the first year"
IRS?

[Dan Schiavetta]

The “collector of internal revenue”. I’m not sure if it was called the IRS then.

The opinion is mind numbingly long. Gray decided to burden us with a treatise on the history of immigration law.

[Mr. Bumble]

Thanks.
"The opinion is mind numbingly long. "
A case that still exists in too many judicial opinions.

[apedad]

(Not Supreme Court history but anyway....)

On this day in history, May 15, 1800, President Adams moves federal government from Philadelphia to DC

President John Adams moved the federal government from Philadelphia to Washington, D.C., on this day in history, May 15, 1800.

The move was completed relatively quickly, according to History.com, with important documents brought to Washington by ships.

Adams had ordered his cabinet to ensure every office would be operating as usual in Washington, D.C., within one month, noted the same source.

ON THIS DAY IN HISTORY, MAY 14, 1973, SKYLAB, THE FIRST US SPACE STATION, IS LAUNCHED

This happened as planned — and Philadelphia "officially ceased to serve as the nation's capital as of June 11, 1800."

The move was swift due in part to the small size of the federal government at that period in time.

President Adams and his wife, Abigail Adams, didn't move into what is now known as the White House until later in 1800, said the White House website. (When Adams and his wife, Abigail, first moved on June 3, they lived temporarily at Union Tavern in Georgetown.)

https://www.foxnews.com/lifestyle/this-day-history-may-15-1800-president-adams-moves-federal-government-dc

[Nige]

I like the way this almost seems to suggest that in 1973 the federal government moved to Skylab,

[Dan Schiavetta]

The Court was spelling out the “collective right” nature of the 2A, which was the controlling interpretation until Heller in 2008.

[Michael P]

US v. Miller was a decision and appeal that was engineered to avoid any serious argument against the government.

[David Nieporent]

The Court was spelling out the “collective right” nature of the 2A, which was the controlling interpretation until Heller in 2008.

It was not. Nothing in Miller touches on the notion of collective rights; indeed, the entire opinion would have been dicta if the 2A only protected collective rights. Miller would have had no standing to even raise the 2A, if that were the case. But that's not what SCOTUS said; SCOTUS said that he lost on the merits as an individual because the 2A didn't apply to his type of weapon.

[Dilan Esper]

Tying the 2A to the militia is not the same as collective rights.

"Collective rights" means that the 2A is about protecting the power of the states to create a militia and arm it over the federal government's objection. The "people", under that reading, would be the people collectively in a state, which then protects its right to keep and bear arms through its militia for its own protection.

But that goes far beyond merely tying the 2A to militia service. "You have an individual right to have a gun because you are expected to come to the defense of society by participating in the militia alongside your other citizens" is still an individual rights position, and then the question (under Miller) becomes whether a sawed off shotgun is the type of arm that you would bear for such service.

And TBC, there are other individual rights/tied to militia positions that would hold Miller was wrongly decided but which still expect armed citizens to participate in the militia.

And then finally there are individual rights/unconnected to militia positions such as what Scalia espoused in Heller.

[Frank Drackman]

Black Irish? is that like a Black Russian?

[David Nieporent]

Yes, what Dilan said. There's no doubt that Miller tied the RKBA to militias. (Whether Miller was correct to do so, I leave for another time.) But it tied it to individuals' RKBA to be able to preserve their ability to serve in a militia. It did not say that militias themselves have a RKBA.

The specific holding of Miller was not, "Mr. Miller was not serving in a militia so the RKBA doesn't apply to him." It was, "Since sawed-off shotguns aren't useful for militias,¹ the RKBA doesn't apply to those weapons."

¹Technically, what it said was that no evidence had been offered to show that utility.

[defaultdotxbe]

I thought it was Bossk?
https://static.wikia.nocookie.net/starwars/images/1/1d/Bossk.png

[defaultdotxbe]

It's been a while since I've read the full opinion, but that was my perception as well. Although I feel it was written somewhat vaguely in order to move the needle toward “Mr. Miller was not serving in a militia so the RKBA doesn’t apply to him” should another case have have come up.