A Great Case Out Of Sequence: United States v. Miller

While this Great Case is well out of chronological sequence for my itinerant progress on the project, I’ve volunteered to do this one now to be part of the League of Ordinary Gentlemen’s symposium on Guns in America. You can read about that symposium at its here. I offer you today a case with a level of obscurity that pales in comparison to the impact it has had on the culture and politics of the United States. We will meet some bad men, one good dog, an iconic weapon, a new science, some lawyers and judges, read some familiar language about a law written to respond to an outrage, meet the judges and the criminals and the lawyers who put that law to the test, and travel from Illinois and Michigan to Arkansas and Oklahoma before going to Washington, D.C. and winding up back where we started.

Let’s begin, then, in pre-Depression Chicago.

I: Valentine

On February 14, 1929, seven men were lined up against a brick wall at 2122 North Clark Street in Chicago’s Lincoln Park neighborhood, and gunned down with silenced weapons by four men, two of whom wore police uniforms and two others in smart business suits and long coats in front of the SMC Cartage Company. [1] This incident quickly became known as the Saint Valentine’s Day Massacre. While high-profile, it was at the end of the day simple gangland crime, an unlikely candidate for an event that would lay the foundations for more than three generations’ worth of political, social, and legal debate — a debate that continues to this day.

One of the victims of the shooting at Clark Street had been accompanied by his dog, a German Shepherd named Highball. During the attack, the gunmen restrained Highball with a leash, but the dog could see his master being hurt, and began to bark loudly. This noise, rather than the relatively quiet sound of the silenced weapons, alerted local residents alerted the police who found one of the seven victims still alive. Frank Gusenberg, known to be an associate of the North Side gang, had sustained fourteen bullet wounds but insisted to the police “Nobody shot me,” before dying a few hours later at a hospital.

“Nobody” turned out to be Al “Scarface” Capone’s South Side gang, who were identified several months later after false starts of investigation, and several sometimes violent confrontations with police in Wisconsin, Illinois, Indiana, and Michigan. The executions represented a peak in a street war between the North Side gang, which was dominated by first- and second-generation Irish residents of Chicago, and the South Side gang, which was dominated by first- and second-generation Italian Chicagoans – both culturally marginalized populations whose young people found leaders, of sorts, in the heads of the local ethnic gangs. The shooting was a failed attempt by Capone to decapitate the North Siders and monopolize Capone’s control of shipments of then-Prohibited alcohol into the thirsty city, typically run in to the city from Canada.

In December of 1929, the case got its big break when Michigan police raided a house belonging to a suspected associate of Capone, ostensibly on suspicion of a drunken driving accident. In his house, more than $300,000 in bearer bonds traced to a recent bank robbery in Wisconsin, two Thompson submachine guns, two shotguns, multiple pistols, and thousands of rounds of ammunition were found. Capone escaped prosecution but the notoriety of the crime attracted more law enforcement attention, and eventually Capone was convicted and incarcerated — of tax evasion, eventually dying in prison of syphillis.

Up until this point, the colorful leaders of the respective gangs had enjoyed a peculiar sort of celebrity as swashbuckling scoundrels – they flouted the law and flaunted their wealth, but gave winning grins and winks to the newspapers while doing it, supported local charities, and above all, kept grateful Chicagoans supplied with the illicit liquor that seemingly everyone in the city wanted but couldn’t get legally. People were willing to turn a blind eye to low-level violence associated with the organized crime, as long as the taxes the gangs imposed weren’t unreasonable and they kept the booze flowing. The Valentine’s Day Massacre began to change that.

The gruesome cruelty of St. Valentine’s Day Massacre began to turn public opinion against the celebrity mobster Capone, which helped provide a variety of leads and tips to state and federal authorities eventually used to arrest Capone, who was finally convicted of tax evasion and jury tampering, serving at least some of his time in Alcatraz, before dying in prison in 1947 of complications from syphillis.

And it introduced a new card into the American media and cultural deck: the Thompson gun.

II: Tommy

John T. Thompson and his business, the Auto-Ordinance Company, crafted, mass-produced, and sold at a healthy profit a weapon which would be classified today as a “submachine gun.” The Thompson gun’s mechanical descendants are still manufactured today by a variety of manufacturers; the functional equivalent of a Tommy gun was used by the U.S. military as recently as the Vietnam War and clones of the Tommy were manufactured and used as recently as the Bosnian civil war. A 1929 model the Tommy gun shot .45 caliber rounds, out of stick magazines holding either 20 or 30 rounds, or drum magazines holding either 50 or 100 rounds. Without ammunition, it weighted about ten pounds and was small enough to conceal, most famously in specially-fitted violin cases.

Even in 1929, the Thompson supported a wide variety of scopes for longer-range use and supported a variety of noise suppression devices, scopes, and recoil reducers. Thus modified, and with a 50-round drum magazine, the weapon could be bought for under $250.[2] While ammunition from a silenced and recoil-reduced Tommy gun did not go as fast or as far as from an unmodified weapon, the gun was still effective at ranges of roughly fifty yards or less. The recoil reducer, light weight, and ergonomic design made the weapon accurate and controllable even to an amateur user; training and practice for the weapon consisted mainly of assembling and disassembling it, since it was so easy to fire, little range practice would be needed before one could effectively shoot.

The trial of Capone’s soldiers, the actual gunmen, saw the one of the first high-profile uses of the new science of forensic ballistic analysis as evidence. Law enforcement authorities analyzed evidence of the crime scene and compared it to shots fired from the guns recovered in the Michigan home of Capone’s associate recovered from the scene of the crime and the bodies of the victims, and used this analysis to identify by serial number the guns used in the attack, the same guns recovered from the raid in Michigan. While this was not the first time this technique had been used in court to enable prosecutors to say that this gun was used to kill this victim, it was the first prominent use. Just as three generations later, scientists and courts were already familiar with DNA sampling but O.J. Simpson’s defense attorneys could rely upon the evanescent ignorance of the public about this science, so too did ballistics testing get its first day in the spotlight with the St. Valentine’s Day Massacre trials.

Finally and perhaps most importantly for our purposes, the high-profile murders of the St. Valentine’s Day Massacre horrified the American public about this weapon in a way that it had never really been scared of a gun before. The Thompson became identified with gang violence and organized crime, although in fact it was used by the military of the United States and several other nations. A particular argument that had been in circulation gained cachet and entered the lexicon of prominent American cultural debate after the St. Valentine’s Day Massacre: what legitimate use could a law-abiding private citizen possibly have for a Tommy gun?

And so the first serious legislative efforts to address weaponry itself wound through Congress. Five years after the killings in Chicago that touched off the public outcry, Congress passed and President Roosevelt signed into law the National Firearms Act of 1934. This rather remarkable beginning for gun control legislation was part of the Internal Revenue Code; it put a $200 per-weapon tax on sales of certain kinds of weapons such as machine guns and rifles or shotguns with barrels shorter than eighteen inches, and silencer devices. This was later modified slightly, as .22 caliber rifles were permitted to have barrels of 16 inches or longer without requiring payment of the tax. In 1934, this tax was higher than the market price of the gun.

The guns would have to be registered with federal law enforcement, and a hefty tax would have to be paid upon the sale of such a weapon. Upon payment of the tax and completion of the cumbersome bureaucratic registration, the Treasury Department would issue a stamp to the owner, which could be placed on the weapon itself or kept separately in a file; however, any law enforcement officer could demand proof of payment of the tax in the form of the stamp and if the stamp could not be produced, could both confiscate the weapon and arrest its bearer.

III: Layton

Such was the fate of Jack Miller and Frank Layton, a pair of not particularly talented bank robbers from Oklahoma. On April 18, 1938, they drove to Siloam Springs, Arkansas, probably in relation to some sort of mid-level organized crime. Local law enforcement pulled them over for a traffic violation, and one of the citing officers saw a short-barreled Stevens 12-gauge shotgun on the seat between the two men. The weapon had not been modified from its original manufacture, but upon measurement the barrel proved to be seventeen inches long and the two men could not produce the tax stamp. The gun was then confiscated and both men arrested for violation of the National Firearms Act.

Eventually, they were indicted in the United States District Court for the Western District of Arkansas, before Judge Heartsill Ragon. Judge Ragon had previously served in Congress where, on the floor of the House of Representatives, he had decried the rising tide of gang violence sweeping the nation by making this statement in Congress on December 17, 1924: “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.” That statement seems difficult today to reconcile with his actions in the case at hand, but then again, the weapon in question was a shotgun and not a pistol. And perhaps he had changed his mind over the years.

Miller and Layton attempted to enter guilty pleas upon their arraignment. However, Judge Ragon rejected these pleas, because the men lacked the assistance of counsel. Instead, he entered a plea of not guilty on their behalf and appointed a prominent local attorney, Paul Gutensohn, to serve as the defense counsel for the two defendants at public expense.

The case went to trial on June 11, 1938. After the reading of the charges, Gutensohn’s first move was to file a motion to dismiss the proceedings. His grounds were that the National Firearms Act 1) exceeded federal authority and intruded upon exclusive state powers to regulate weapons, and 2) violated the Second Amendment to the United States Constitution. Judge Ragon granted the motion to dismiss on the strength of the Second Amendment argument. With the cooperation of state authorities, a new indictment on the same charge was made again,[3] and a pre-trial motion to dismiss was made and granted on January 3, 1939, again on the theory that the law violated the Second Amendment.

On January 4, 1939, Gutensohn was appointed to the Arkansas State Senate (no, that doesn’t seem to have anything to do with Miller and Layton). He appears to have lost touch with his clients. His commission for public payment ended upon the dismissal of the second round of charges as the prosecution indicated it would not re-file the charges a third time. Instead, on January 30, 1939, the prosecution filed an appeal of Judge Ragon’s decision to the United States Supreme Court.

Gutensohn complained on March 22, 1939 that he had not been given notice of or a copy of the appeal to the Supreme Court. The prosecutors offered to stipulate to give him additional time to brief the issue on behalf of his clients, but on March 28, after complaining that he hadn’t read the brief, he sent a telegram back to the prosecutors: “Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be present and argue case = Paul E Gutensohn.” Two days later, the case was argued before the Supreme Court without opposition. Gutensohn was in Little Rock, Arkansas, serving in the Legislature. At the time, no one knew where the defendants were.

Not for long. On April 5, 1939, Jack Miller’s body was found in a dry riverbed in Oklahoma’s countryside, the apparent loser of a gunfight that had occurred on or around the date of the argument of his case before the Supreme Court. Layton’s whereabouts at that time were unknown. Layton was not suspected of involvement in Miller’s death, as the two had dissolved their previous joint venture.

On May 15, 1939, the Supreme Court unanimously reversed the lower court decision in the case of United States v. Miller (1939) 307 U.S. 174, in an opinion written by Justice James McReynolds.

IV: McReynolds

Let’s take a look at the man, and the opinion, that would mold the national debate about weapons and the law for the rest of the twentieth century. James McReynolds was an infuriatingly unpleasant man. I must confess that when I see his name on a historical opinion – and he wrote over 500 opinions in his career on the Supreme Court – I shudder a little bit. Please forgive me a bit of a biographical interlude before I dive in to his opinion in the Miller case.

James McReynolds was born in Kentucky during the Civil War and was brought up in a very sternly religious household. He demonstrated commandingly powerful intelligence at a young age: he was the valedictorian at Vanderbilt University in 1882 not long after his twentieth birthday, and took a law degree from the University of Virginia two years later. He cited as a role model one of his UVA law professors as “a man of stern morality and firm conservative convictions.”

He moved to New York and unsuccessfully ran for Congress as a “goldbug Democrat,” but established a prominent enough private practice to catch the eye of Theodore Roosevelt, who appointed him the Assistant Attorney General when he was 41 years old. Throughout his career, McReynolds maintained a policy that no Jew, drinker, black, woman, smoker, or married or engaged men would serve as his law clerks; he insisted on slavish devotion and long hours from his support staff and tolerated little discussion about the merits of arguments on legal issues with which he disagreed.

In 1907, he resigned to private practice, having foreseen the rise of William Howard Taft as the likely successor to Theodore Roosevelt, but secured a commission from the outgoing Roosevelt Administration as special counsel for antitrust litigation. Seemingly based on his reputation as a “trust buster,” President Woodrow Wilson appointed him Attorney General. However, McReynolds’ strong laissez-faire views of economics (excepting his opposition to corporate abuse of monopoly power) generated substantial friction between himself and the more liberal President.[4]

Wilson found a way out of the difficult position he had gotten himself into by making the irascible McReynolds his Attorney General by nominating him to the Supreme Court at the first available opportunity. McReynolds served on the High Court from 1914 to 1941, earning the title of the leader of the “four horsemen” who consistently voted against New Deal legislation until their careers ended.

To McReynolds’ enduring distaste, President Warren Harding named McReynolds’ old enemy, William Howard Taft, as Chief Justice of the Supreme Court. Once he was Chief Justice, Taft said of his colleague that McReynolds “seem[ed] to delight in making others uncomfortable … [was] a continual grouch, and [was] always offended because the court is doing something that he regards as undignified.” Chief Justice Taft complained that McReynolds’ sour personal temperament made operating the High Court much more difficult than it needed to be, including not only being personally disagreeable and bigoted, but also because McReynolds frequently would absent himself from Court business during duck hunting season.

He obviously achieved significant prominence and earned at least the professional trust of a lot of people. He somehow obtained significant appointments from two Presidents of different parties and had substantial political acumen. So while it’s easy to find multiple anecdotes about how personally unpleasant he was, we would underestimate his charm, his reputation, the esteem of his peers and colleagues, and ability to attract a substantial political constituency at peril to an appreciation of the full truth about him.

Many people describe that when in the company of people he liked, McReynolds was genteel and pleasant. Colleagues with whom he got along described him as the soul of courtesy and many were moved to see him openly weep at the funeral of Justice Holmes’ wife. He hosted weekly brunches for law clerks on the Court which were later remembered fondly, and he is remembered with honor by residents of his native Elkton, Kentucky to this day.

But if he didn’t like you, he really didn’t like you. And his reasons for disliking some people are profoundly unpleasant to confront in today’s cultural milieu. For instance, during his tenure McReynolds refused to speak with his colleague John Clarke, deeming him “too liberal.” Today, we admire even the most strident ideologues on the bench for being civil and intellectually engaged with their colleagues with whom they disagree. McReynolds seems to not have possessed this ability.

Now, one judge refusing to even talk to another on the basis of intellectual disagreement is one thing, unseemly enough for a supposedly lofty deliberative body dealing with intellectual questions of law. But it would be flatly unacceptable by today’s standards for any judge to refuse to interact with a colleague based on his religion. That’s how McReynolds treated Louis Brandeis – not a word spoken for three years after his appointment, for no other reason than that Brandeis was Jewish. McReynolds refused to sign farewell cards when Clarke and Brandeis resigned from the Court, would not attend a memorial service for Justice Benjamin Cardozo, and would not attend Felix Frankfurter’s swearing-in ceremony, remarking “My God, another Jew on the Court!”

When women attorneys[5] entered the courtroom, he would complain about them audibly, referring to any woman at counsel table as “the female” and taking particular exception if they wore red nail polish, which he thought was an unspeakable vulgarity. Frequently, on those occasions when a woman attorney offered oral argument, he would pointedly walk out of the courtroom.

Amazingly, he never married.

V: Miller

This, then, is the man to whom authorship of the opinion that guided three quarters of a century of legal and political debate over gun ownership rights fell: an unreconstructed bigot, a moral Manichean with a brittle personality, an avid admirer of ancient traditions, and perhaps most interestingly for this case, an avid duck hunter. In mitigation, at least as to the Miller case, he wrote an opinion in an unopposed case, and for a unanimous Court.

Miller has cited on both sides of the gun control debate because it was written with language both sides find useful. Importantly, it represented the first use of what has proven an enduring argument about the Second Amendment: the amendment was intended by the Framers to protect only military-style weapons for use in a militia, and does not protect the right of an individual to own weapons for any purpose other than participation in a militia. It seems to me that the critical language in Miller is in favor of the power of the government to regulate these weapons:

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.

* * *

[For the Framers]…the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily 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 basic holding of the case is that the Second Amendment does not protect the purported right of an individual to own a short-barreled shotgun. Significant dicta by McReynolds indicates that nothing in the Second Amendment prevents a state from regulating the ownership of weapons, suggesting that a state could prohibit ownership of at least certain kinds of weapons. This is not a victory for gun ownership advocates.

But, gun ownership advocates point to this very same language to indicate that ordinary citizens can own weapons because they are capable of being organized into a militia and therefore should have weapons that the military might use in the event that they are so needed. They also point out that in World War I, short-barreled shotguns of the type were the subject of Miller were actually used in warfare, and that the government in uncontested briefs (for a variety of reasons, the appeal to the Supreme Court was not contested by the defendants, so the government appealed without opposition in to re-validate the National Firearms Act) had failed to advise the Court of that demonstrably true fact (over 30,000 short-barreled shotguns were used by the U.S. Army in the Franco-Belgian theater for close-range combat in trenches and to guard prisoners). Finally, they point to the fact that the government’s brief relied on the notion that the National Firearms Act was a revenue-raising law, not a public safety law. It’s about taxing the guns, not prohibiting them. The federal government can tax a gun without unreasonably restricting the right to have it in the first place, the argument goes, and there was no effort in the Miller case nor any subsequent effort by Congress to impose a tax so prohibitively high as to constitute an effective ban on any described weapon.

United States v. Miller was not front-page news. The New York Times reported it on page four with a four-paragraph blurb and most newspapers didn’t bother to report on it at all. There was, after all, war abrew and this was an unopposed case argued very quickly and apparently non-controversially, about a couple of two-bit bank robbers, one of whom was already dead. Not big news, at least not at the time. The case’s influence was initially academic, and after a time, the academic discussion of the role of the militia language in the Second Amendment worked its way into the cultural zeitgeist.

Focusing on the language I’ve quoted above, federal courts generally upheld facial challenges to federal firearm regulations for the next seventy years and the general legal consensus was that weapons were entirely and appropriately regulable, ambiguous wording of the Second Amendment notwithstanding. The Supreme Court of the United States cited its opinion in Miller only five times until 2007. In other subsequent cases, the National Firearms Act was effectively eviscerated from an enforcement perspective, because it was, after all, a tax rather than a prohibition, and revenue agents stopped being the celebrated law enforcement officers of the Prohibition era when the FBI rose to prominence as the principal law enforcement agency of the federal government in the 1940’s and 1950’s. So, subsequent cases restricted the ability of revenue agents to conduct searches and seizures to look for unstamped guns as a means of collecting taxes.

However, Congress revisited the issue of gun taxes in the 1960’s, and a descendent of the National Firearms Act is still on the books, enforced by way of taxes assessed on weapons sales, and can be perused at 26 U.S.C. §§ 5801-5872. The objective dollar amount of the tax — $200.00 per weapon — has remained unmodified since 1934.

McReynolds’ decision was not the end of the prosecution of this particular case, however. Of course, the case against Jack Miller was by then moot, because he was dead. Frank Layton was brought back to court in Arkansas, the arraignment revived. He once again pled guilty. (I don’t know if he had a lawyer, but it didn’t matter all that much.) He was sentenced by Judge Ragon to five years’ probation for his violation of the National Firearms Act, and released from probationary supervision on the same day.

And keying off of this language in Miller, the debate about what the Second Amendment means has revolved ever since about what a “militia” really is and whether we care about militias when confronting gun policy and the Second Amendment. This is the enduring legacy of the Miller case. Are we talking about the National Guard? A theoretical mass draft? As-yet unorganized irregular military units yet to be created in the event of a dire national emergency like a land invasion? People able to organize rebellions in the face of a government turned tyrannical? Police? Para-military units of police? And if a militia is any of these, then what kinds of weapons should they have?

It didn’t necessarily have to be that way, but that’s how Justice McReynolds wrote his opinion and that is the grandest and most subtle power of the Supreme Court of the United States – the power to grind the lenses through which subsequent generations will look at an issue. It was not until the 2007 case of District of Columbia v. Heller that there was serious legal argument advanced that the militia clause might be the one thing that so many members of the High Court have always insisted is simply not present in the venerated Constitution: surplusage.

That, however, will be a matter for a subsequent essay, one focused on Heller. For now, we can note that the most recent activity by the Supreme Court in this legal area, has brought the issue full circle. After all, the follow-up case to Heller, which did what Justice McReynolds shrank from doing and incorporate the Second Amendment to the several states, is the case of McDonald v. City of Chicago – the city where the whole debate got started on an awful Valentine’s Day more than eighty years ago. And I’ll get to the Heller case in due course.