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Misreading Miller

Prior to Heller and McDonald, a common refrain from those who opposed the right of citizens to keep and bear arms was that the second amendment protected a “collective right”, rather than an individual one. Even today, some have fought against the Heller decision’s core findings, such as the ACLU, which has notoriously failed to embrace the civil liberty protections of the second amendment, choosing to cite United States v. Miller, claiming the second amendment “protects a collective right rather than an individual right.” This claim is unsupportable, and it requires grossly misreading the actual content of the decision. In this post, I will examine the Miller decision, its form and format, the problems of its history, and how, even if taken as good case law, it has been consistently misread by those with an agenda to end the private ownership of arms.

The Miller decision and its sordid history set the basis for this bit of “uncommon sense”. Jack Miller was a former bootlegger and assisted in bank robberies for the O’Malley gang. During the gang’s bank heists, he carried a sawed-off shotgun while acting as their getaway driver. This ultimately lead to his and his accomplice’s arrest for violating the newly-passed 1934 National Firearms Act (NFA). Under advice from the District court judge, the two men entered pleas of “not guilty”, arguing on Constitutional grounds the had not violated the federal law.The district court judge in Arkansas agreed, leading the federal government to appeal to the Supreme Court. It is here that the case took its most interesting turn.

With no representation to the Supreme Court, Miller and Layton’s case was argued entirely by one side – the government’s. Knowing this, the Supreme Court’s decision was not surprising:

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.

Note the key words “absence of any evidence” – the court intrinsically acknowledged in the decision that no argumentation occurred. In fact, the court decided only on a limited question: does the federal government have the right to limit arms that could not serve a militiaman? They said “yes”, keeping the NFA alive, but remanded further proceedings to be decided at the lower court. These proceedings would include, presumably, arguments about whether the arms in question served military purpose. However, those arguments never came. Before the lower court could review the case, Jack Miller turned up dead in a lake, and Layton took a plea bargain.

The remainder of the Miller decision uses further history to state that the only weapons outside of Congressional control were those that could serve no reasonable military purpose. It does so primarily through quotes of Constitutional contemporaries and influences, e.g. Blackstone, Adams, and Osgood, the last being quoted saying the following (citations omitted):

‘In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.’ ‘The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.’

Clearly, we come from a history of arms where those borne by the people were meant to meet those of the armed forces. In light of this, the current state of 18 USC 922, particularly the limitations set forth related to “sporting purposes”, clearly don’t stand to constitutional scrutiny. Though these purposes may be intended to be protected under the second or tenth amendments, the argument put forth in Miller shows that, if anything, it is those weapons that can serve some military purpose that are protected under modern jurisprudence. Cases such as Heller and McDonald affirmed that it is a personal right to bear arms, but Miller said what kinds of arms the government may not ban a person from bearing. This contradicts the expressed desires of the campaign during the 2008 presidency where Obama’s claim that reducing “urban violence” required “making the expired federal Assault Weapons Ban permanent, as such weapons belong on foreign battlefields.” Clearly, historically, and constitutionally, such weapons are the most protected, not the most deserving of a ban.

Ultimately, a person who is evaluating the second amendment must recognize that the point isn’t to protect government, nor to protect society from its nefarious elements. The point of the second amendment is primarily rooted in protecting the people from government deprivation of military-style arms, for the purpose of revolution should such a need be found among the people. My next post will address this need, the issue of modern rebellion, and why such a protection is neither obsolete nor impotent.

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One Response

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  1. T Tan says

    You’re going to expand on the last part further so I’ll wait until then, but the larger picture is worth expanding on in the meantime.

    The original motivation behind the “government monopoly on violence” was Hobbes’ Leviathan. The problem in a “lawless” state is that the main instrument of defense is promise of greater reprisal. Sooner or latter, someone is going to try calling that bluff, and the situation inevitably devolves into a cycle of ever increasing destruction until it plateaus at a point where escalation is no longer possible (ie. probably death). This is simply observation (eg hunter gather societies, stateless nations, sectarian conflicts, etc). The idea then was that all parties involved give up their right to violence to the leviathan, which in return becomes the arbitrator of justice in grievances. Given that modern western societies subsequently set up in this manner do tend to have orders of magnitude less overall violent deaths (counted in ppm vs many percentiles), it’s probably been one of primary contributors.

    Of course then the problem was that bad leviathans can in cases become even worse than a lawless state, and thus a blow-off mechanism was tossed around at times, with very little evidence as to its effectiveness even then. I suppose in a very hypothetical sense, it’s not a bad thing to carry this type of insurance. However the costs of both the nuts and bolts but mainly the risk and cost of failure have to be weighed against the very real benefits of living a quite cushy quality of life we’ve been able to obtain in the meantime.

    Amusingly, the “founding fathers” were never much against the idea of using violence to get their way, and one of the founding principle of this nation was to gain dominion over the americas and “our” hemisphere, and we certainly backed up our talk by “driving the savages into the stony mountains”.

    Also, given a choice between the sanctity of some document vs. society as a whole, not to mention the serious character flaws of the somewhat genocidal slave owners who authored said doc, the decision seems pretty easy. The world has simply changed and become a much better place since then. That doesn’t necessarily mean anything should be banned, but these decisions need to be evaluated through better optics than what was possible in the time of yeomen fables.



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