Could we win if we retried U.S. vs Miller today?

[scottr]

With the ease of finding information today and how much was writing on the subject of weapons and what the founding fathers thought on the subject, Could we win?

In the case the decision was that "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.", There for would that not kill all gun control and Under the NFA everything that they use is used in the military.

I am not sure about the judges on the way to the Supreme Court, I would think the High Court would now be willing to play ball and rule pro 2A.

Your thoughts, this should be interesting.

 

[cubrock]

With the ease of finding information today and how much was writing on the subject of weapons and what the founding fathers thought on the subject, Could we win?

In the case the decision was that "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.", There for would that not kill all gun control and Under the NFA everything that they use is used in the military.

I am not sure about the judges on the way to the Supreme Court, I would think the High Court would now be willing to play ball and rule pro 2A.

Your thoughts, this should be interesting.

I suspect the SCOTUS would refuse to hear the case. They don't want to rule on that and have avoided doing so whenever possible since Miller.

 

[noway2]

The only reason Miller was ruled the way it was is because the defense didn't even show up to the case. They knew it was unconstitutional, but ruled for the plaintiff by default.

Undoubtedly they round refuse to hear the case. The better approach is to overturn it in Congress.

 

[Howland]

The only reason Miller was ruled the way it was is because the defense didn't even show up to the case. They knew it was unconstitutional, but ruled for the plaintiff by default.

Undoubtedly they round refuse to hear the case. The better approach is to overturn it in Congress.

This.

And the (in)convenient fact that although the case was decided in 1939, and although US troops used short barreled shotguns as trench guns during WW1, they ruled that there was no "militia purpose" to the weapons.

 

[noway2]

This.

And the (in)convenient fact that although the case was decided in 1939, and although US troops used short barreled shotguns as trench guns during WW1, they ruled that there was no "militia purpose" to the weapons.

No doubt it. Wikipedia has an interesting take on this case. It was clearly a political play on the part of an activist judge who knew that the defendant wouldn't show up. I think the case also sowed the roots for the Ozero-care mandate, in claiming that it had a revenue raising venture. The act would have been easy to defeat had the defense shown that the weapon was in fact used in WW-1. If we could get a revisit of this subject, theoretically it should strike down the ATF and everything subsequent.

United States v. Miller involved a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine's Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barrelled rifles and shotguns) to be registered with the Miscellaneous Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) which at the time was part of the Bureau of Internal Revenue (ancestor of today's Internal Revenue Service),[1] with a $200 tax paid at the time of registration and again if the firearm was ever sold.

Defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. District Court Judge Heartsill Ragon accepted the claim and dismissed the indictment, stating, "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.'" Judge Ragon provided no further explanation of his reasons.

In reality, Ragon was in favor of the gun control law and ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the government's appeal to the Supreme Court would be a sure win because Miller and his attorney would not even be present at the argument

 

[gc70]

Could we win if we retried U.S. vs Miller today?

Miller would be hard to win today, just as it was in 1939.

Understand that Miller was a setup. The District Judge was a rabid gun control advocate. The judge refused Miller's guilty plea and gave Miller a court-appointed lawyer. Miller's lawyer claimed the National Firearms Act was unconstitutional and the judge so ruled. The District Court ruling presented no facts or arguments, simply declaring the NFA unconstitutional. The government immediately appealed the case to the Supreme Court (they could do that in those days). The government presented its case; Miller's lawyer did not present a defense because he was not being paid (although he had been appointed to a seat in the state Senate). The Supreme Court's decision was surprisingly restrained considering they were only dealing with one side of a case.

A lot of folks get upset about the following section of the Miller decision:

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.

The government presented no evidence that short shotguns were used by the military and the Supreme Court was supposed to rule on what was presented about the case (briefs and oral arguments). The Supreme Court's role was not then -nor is it now- to go out and try to dig up evidence about a case.

 

[Howland]

...in claiming that it had a revenue raising venture.

The "revenue raising" was the ploy to enact the legislation to begin with, and the record of the debate prior to passage shows that they felt themselves prohibited from banning them due to 2A concerns, so instead they just taxed them at a rate far beyond most people's ability to pay. With a $200 tax, does anyone have ready access to the average annual income from 1934?

"The power to tax is the power to destroy."
- Daniel Webster, and John Marshall in the Supreme Court case, McCulloch v. Maryland. Webster, in arguing the case, said: “An unlimited power to tax involves, necessarily, a power to destroy,” 17 U.S. 327 (1819).

 

[gc70]

The "revenue raising" was the ploy to enact the legislation to begin with, and the record of the debate prior to passage shows that they felt themselves prohibited from banning them due to 2A concerns, so instead they just taxed them at a rate far beyond most people's ability to pay. With a $200 tax, does anyone have ready access to the average annual income from 1934?

From the National Firearms Act hearing before the House Ways and Means Committee on April 16, 1934:

(page 12)
Mr. Cooper: In that connection, would you be prepared to give us some information as to the average cost of one of these machine guns?
Attorney General Cummings: The cost now is about $200.
Mr. Cooper: That is, delivered to the purchaser?
Attorney General Cummings: Yes, sir.
Mr. Cooper: Then the proposed tax of $200 --
Attorney General Cummings: Would be about a 100-percent tax.

(page 13)
Mr. McClintic: What in your opinion would be the constitutionality of a provision added to this bill which would require registration, on the part of those who now own the type or class of weapons that are included in this bill?
Attorney General Cummings: We were afraid of that, sir.
Mr. McClintic: Afraid it would conflict with State laws?
Attorney General Cummings: I am afraid it would be unconstitutional.

(page 22)
Attorney General Cummings: I think the sooner we get to the point where we are prepared to recognize the fact that the possession of deadly weapons must be regulated and checked, the better off we are going to be as a people.

 

[BudE]

If anyone here thinks that the Supreme Court or Congress will nullify Miller they're smoking funny weed.

 

[noway2]

If anyone here thinks that the Supreme Court or Congress will nullify Miller they're smoking funny weed.

Anyone who thinks the system is going to get fixed though the legislative or judicial process is smoking funny weed, but it's still important to have an understanding of what needs correcting for when the time comes that things do get corrected.

 

[Howland]

The act would have been easy to defeat had the defense shown that the weapon was in fact used in WW-1. If we could get a revisit of this subject, theoretically it should strike down the ATF and everything subsequent.

Hmm. Since nobody represented Miller, that obviously was not done.

However, if the US Attorney left the Court with the false impression that the above was the case and omitted evidence that would correct the record, how does that not constitute perpetuating a fraud upon the Court? Would that not give rise to standing to resurrect the original case?

 

[gc70]

However, if the US Attorney left the Court with the false impression that the above was the case and omitted evidence that would correct the record, how does that not constitute perpetuating a fraud upon the Court? Would that not give rise to standing to resurrect the original case?

There is nothing in our adversarial legal system that requires a lawyer to make a case or present evidence for their client's opponent. The government lawyers did not falsify evidence, they just had no reason to present evidence that the military used short shotguns.

The Miller ruling actually says far less than many people believe. Most observers view the ruling's key sentence as:

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.

That sentence literally says that the Court had no evidence to be able to say that the 2A covers short shotguns.

Regardless of how puny the Miller ruling was, it still counted as a reversal of the lower court finding that the NFA was unconstitutional. At the end of the day, Miller achieved the government's objective of establishing a Supreme Court precedent that the NFA was legal.

 

[scottr]

So with the shooting down of the Voter ID laws and other cases about disproportionately affecting one group over the other then would the same case not be able to be made in the case of the NFA?

 

[scottr]

If we could get a revisit of this subject, theoretically it should strike down the ATF and everything subsequent.

How so? The ATF only have 1/3 of its work to do with Arms.

 

[scottr]

10 U.S. Code § 246 - Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
(Aug. 10, 1956, ch. 1041, 70A Stat. 14, § 311; Pub. L. 85–861, § 1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, § 524(a), Nov. 30, 1993, 107 Stat. 1656; renumbered § 246, Pub. L. 114–328, div. A, title XII, § 1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)

https://www.law.cornell.edu/uscode/text/10/246

So with this being law it there for almost all men are part of a militia and there for should have access to the arms for the purpose of getting called up to the organized militia.

 

[BigWaylon]

With a $200 tax, does anyone have ready access to the average annual income from 1934?

I remember reading somewhere it was $117/mo.

A search just now gave me a variety of figures, mostly in the $1500-$1800 per year. So, pick any of them you want and you're still under $150/mo.

I've told many a person that the $200 tax is a nuisance these days, but you can often cover that just by shopping around and looking for sales, included accessories, etc. But...back then, it was definitely a prohibitive amount for most folks.