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 even 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. 246 (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) (this holding prompted an amendment to §1001 to make it conform with Bramblett)

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

[Commenter_XY]

You know captcrisis, after 'Short Circuit' your case summaries are another reason I come here. I learn from the cases you post.

[Dan Schiavetta]

Thanks! I live for flattery!
As of this week, I've been posting daily for two years. I also benefit from being occasionally corrected.

[Michael P]

In United States v. Miller, the Court did not specifically say that the shotgun "was not reasonably a militia weapon", but only that there was no evidence before the court that it was:

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.

Shorter-barreled shotguns such as the "Trench Gun" showed their value in short-range combat such as the trenches of World War 1, but the Court did not recognize that history. That kind of thing tends to happen when, as in this case, the appellee is prevented from significantly participating in the arguments.

Similarly, the holding was not so much that Congress clearly had the power to require federal approval of transferring militia weapons, or that any specific precedent supported such a power, but that the Court was merely "unable to accept the conclusion of the court below". The opinion quotes at length about obligations of government to provide militia weapons where needed, but not about civilian ownership or possession of those weapons outside of militia service.

[ReaderY]

I think Miller was correct in that there has a relationship between arms and a well-regullated militia. However, reading Miller as excluding an individual right to keep and bear arms was a mistake.

The kinds of arms Anendment II covers are arms suitable for a militia, not arms suitable for a free-standing, judge-made, non-textual personal self-defense right.

[Dilan Esper]

My view is somewhat similar to yours.

1. The Second Amendment has a militia component. Gun rights types don't like this because it implies obligations to the state. But it's right in the text, and Prof. Volokh's and Scalia's "prefaces don't matter" argument seems dead wrong to me.

2. The Second Amendment also is an individual right and Miller is wrong on this point (or at least doesn't really analyze it correctly). See Scalia's discussion in Heller- I think he's obviously correct about this.

3. The upshot of this is that the people are supposed to be armed with the sorts of weapons suitable for militia service (which would imply that statutes prohibiting individuals from obtaining particular types of arms are more constitutionally suspect than the Miller implies) but can be subject to the restrictions and duties of militia service as part of arms ownership (including training, discipline, forfeiture for bad conduct or dangerousness, and other forms of regulations that relate to the duties of gun owners to the country and the state).

But we're so far away from any sort of "correct" interpretation of the Second Amendment that we just have to live with the contradictory legacies of Miller and Heller/Bruen.

[Brett Bellmore]

1. "The Second Amendment has a militia component. Gun rights types don’t like this because it implies obligations to the state."

Nah, I'm fine with it; The obligations to the state exist independent of the 2nd amendment, remember. The militia component is actually, as the Miller court held, that it is arms suitable for militia purposes that are protected. But what is protected is the individual, private ownership of them.

2. "The Second Amendment also is an individual right and Miller is wrong on this point"

It doesn't develop this point, but if it hadn't been an individual right the case would have been easily decided against Miller without any inquiry into the nature of his gun. So it's implicit in the decision.

3. "The upshot of this is that the people are supposed to be armed with the sorts of weapons suitable for militia service"

Absolutely yes. As Tench Coxe said, "Their swords, and every other terrible implement of the soldier, are the birthright of an American."

"but can be subject to the restrictions and duties of militia service as part of arms ownership"

And, nope. We can be subject to the duties of militia service independent of our ownership of arms. That's established by the militia clauses of the Constitution.

This is key: You have to remember that rights are not protected to enable the government to do the thing it should; Those are called "powers". Rights are protected to prevent the government from doing things it shouldn't.

So you have to ask here what the thing it shouldn't do IS, and interpret the amendment so it actually gets in the way of that thing.

The thing they were actually concerned about was the government trying to get rid of the militia system, and disarming the people to make raising a militia impossible. So they guaranteed the right to own suitable weapons independent of militia service, in order that the amendment could not be neatly circumvented by just discontinuing having a miltia.

[Dilan Esper]

Your interpretation is contrary to the Militia Clauses and would neuter them, just so you can say gun owners don't owe obligations to the state.

[Dan Schiavetta]

The militia phrase is a form familiar to any lawyer. It’s a “recital”. Recitals (“Whereas the parties are desirous of…”) are often placed at the beginning of contracts so that if there’s an ambiguity the contract can be construed in line with its purpose. The only other place in the Constitution with such a recital is the Patent Clause, which has always been construed accordingly.

An originalist would hold that the entire Second Amendment is a dead letter. It dealt with a concern the Framers had as to rebellions like the recent Shays’s in an era when there was no standing army and law and order depended on a militia composed of all able bodied males in an era when almost all men owned guns and knew how to use them. There is no more “keeping and bearing arms” today in that sense, any more than one can “keep” a wife, or “keep” slaves.

[Noscitur a sociis]

Shorter-barreled shotguns such as the “Trench Gun” showed their value in short-range combat such as the trenches of World War 1, but the Court did not recognize that history.

I hear this a lot, but the last time I checked, all of the examples of military-issued shotguns I could find had 18-inch+ barrels (I think the shortest was something like 21 inches). Is there actually evidence that the U.S. military used short barreled shotguns prior to the decision?

[Brett Bellmore]

They did officially go down to 18", might occasionally have been cut down further in the field, but 18" IS considered short for a shotgun barrel.

They probably set the legal threshold at 18" to match the shortest official military shotgun to avoid running into constitutional trouble banning a gun that was an exact duplicate of ones used in a recent war.

[Noscitur a sociis]

Do you have a source for that? Wikipedia says that the M1897 had a 20 inch barrel and that the Remington Model 10 was 23 inches in the riot and trench gun models. And I found an article from the NRA saying that the M1912 was also 20 inches, but looks like it's not letting me post a link. But I don't know that any of these sources are definitive, so if there's better information out there I'd love to have it!

[apedad]

Re: Hubbard

18 U.S. Code § 1001 – Statements or entries generally

(a)Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1)falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2)makes any materially false, fictitious, or fraudulent statement or representation; or
(3)makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years . . . .

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

~~~~

So . . . is para (b) saying it’s OK to lie in a court proceeding?

[Michael P]

I think it’s saying that Congress is not trying to send people to FPMITA Prison for five years merely for pleading not guilty before getting convicted, advancing a losing theory of facts in a civil case, and so forth.

Perjury and contempt of court can still be addressed through other mechanisms.

[apedad]

18 U.S. Code § 1623 – False declarations before grand jury or court

(a)Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years . . . .

~~~~

OK makes sense.

[David Nieporent]

So . . . is para (b) saying it’s OK to lie in a court proceeding?

No; it's saying that § 1001 doesn't cover that. There's a different statute for perjury.

[ReaderY]

In the Kentucky power-of-attorney case, doesn’t it seem truly extraordinary that the federal interstate commerce power could be thought to extend to override state allocation of decision-making power among relatives within a family regarding a residential living situation entirely within a state?

Nothing to do with interstate commerce. Nothing whatsoever.

[Dan Schiavetta]

The Court held in another case that nursing homes are engaged in interstate commerce. I suppose that’s what you get by making segregation in restaurants a Commerce Clause issue. Pickles from Iowa! Wheelchairs from Georgia!

The Federal Arbitration Act (a gift to Big Business) swallows up everything. In another case the Court held it was violated by a state law merely requiring arbitration clauses to be displayed prominently instead of being buried in fine print.