The misconstruction of United States v. Miller
By   Howard J. Fezell, Esq.

         United States v. Miller, 307 U.S. 174, 86 S.Ct. 816 (1939) lends considerable support to the proposition that the Second Amendment guarantees an individual right to keep and bear arms. However, through selective quotation numerous appellate courts have cited Miller as authority for their claim that the Second Amendment guarantees only a collective right of States to maintain militias.

          Miller involved the indictment of Jack Miller and a cohort for unlawfully transporting a short-barrelled shotgun in violation of the National Firearms Act of 1934.

          When the case was at the trial court level, Miller's attorney filed a motion to dismiss the indictment (a demurrer) on the grounds that the portion of the National Firearms Act under which Miller had been charged violated the Second Amendment. The trial judge granted the motion and the charges against Miller were dismissed.  Jack Miller promptly departed for parts unknown.

          The United States, however, filed an appeal directly to the Supreme Court. When the case was argued only the government was represented -- and only its side of the case was presented to the Justices.

          The Supreme Court in Miller did not say that the decision of the lower court was wrong.  Instead, it reversed the trial court's decision and sent the case back to the trial court for further proceedings on the question as to whether a short-barrelled shotgun is the type of firearm that had utility for militia use.  

          The individual nature of the Second Amendment right asserted by Jack Miller was never questioned by the Supreme Court.  This is a critical point in analyzing Miller.  If the Second Amendment guaranteed only a right of States the Court would have summarily disposed of Miller's claim on the grounds that he lacked standing to assert it.

          What the Supreme Court in Miller was concerned about was whether the shotgun he was charged with transporting had "some reasonable relationship to the preservation or efficiency of a well-regulated militia." 307 U.S. at 178, 59 S.Ct. at 818.

          The Court in Miller discussed the historial background of the militia in America.  What the Court actually said concerning the militia was as follows:

          The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."  With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.  It must be interpreted and applied with that end in view.

          The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

          The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.  These show plainly enough that 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.

                                                                            307 U.S. at 178-79 (italics added)

          The importance of the Miller decision cannot be understated.  According to Prof. Sanford Levinson of the University of Texas:    

Miller can be read read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course assault weapons.

Levinson, The Embarrassing Second Amendment, 99 YALE L.J., 637, 654-55 (1989)  

          However, gun-prohibitionists and anti-gun judges routinely cite the italicized portion of the first paragraph, above, while conveniently ignoring the italicized portions in the third paragraph.  See, e.g., Stevens v. United States, 440 F.2d 144 (6th Cir. 1971).  Stevens cites United States v. Miller for the proposition that "[s]ince the Second Amendment right `to keep and bear arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm."  Id. at 149. Stevens, however, quotes no language from Miller that would support this conclusion.  The same is true of United States v. Warin, 530 F.2d 103, 106, (6th Cir. 1976)(quoting Stevens); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H. 1981)(quoting Warin); and Krisko v. Oswald, 655 F. Supp 147, 149 (E.D.Pa. 1987)(quoting Stevens).

          United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) involved a convicted felon who was found in possession of a firearm.  It cited Miller for the proposition that "[t]he courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a `reasonable relationship to the preservation or efficiency of a well regulated militia.'"  No explanation of how Miller supports this collective rights interpretation is offered.

          United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) involved the appellant's possession of an unregistered machine gun.  The court quoted Miller for the proposition that the purpose of the Second Amendment was "to preserve the effectiveness and assure the continuation of the state militia."  Id. at 387.  However, Oakes offers no explanation as to how Miller would require the possessor of a firearm to by associated with an organized militia before being able to assert the protection of the Second Amendment.

          Quilici v. Village Of Morton Grove, 695 F.2d 261 (1982) involved a constitutional challenge to a local ban on the possession of handguns.  Quilici discusses Miller.  Id. at 270.  But it offers no explanation as to how Miller could be read to support the proposition that the Second Amendment guarantees only a collective right.

          City Of East Cleveland v. Scales, 460 N.E. 2d 1126 (1983) quotes the first paragraph from Miller set forth above, but ignores the language in the third paragraph.

Why would judges ignore the plain language of United States v. Miller?

          The cases cited above cannot reconcile themselves with the Court's statement in Miller that the militia comprised all males physically capable of acting in concert for the common defense who would be expected to supply their own arms.  Why, then, would some judge misconstrue Miller as supporting the proposition that the Second Amendment guarantees only a collective right of States?

The Political Angle

          Appellate judges are on the bench in part because they have political connections.  I do not mean to say that all judges are hacks who are given a judgeship simply as a reward for past loyalty.  However, anyone who believes that judicial appointments are made solely on the basis of legal knowledge and temperament is hopelessly naive.

Personal Prejudices

          Judges are human beings.  Like the rest of us they have opinions and prejudices that may affect their professional decisions.  The idea that ordinary people have a Constitutionally guaranteed right to keep and bear arms scares people who might see "the government" as a positive force that should take an active role in shaping our society.

What's a lawyer to do?

Intellectually dishonest (or simply lazy) judges will always be with us.  It's time to stop worrying about offending judges' collective sensibilities by pulling our punches about this dishonesty.  Judges have enormous power, but hate to be held up to ridicule on matters pertaining to their intelligence or integrity.  If the other side cites some of the cases referenced above which have misconstrued Miller don't be bashful about labelling them as intellectually dishonest.  If a judge selectively quotes Miller or relies to support a collective interpretation of the Second Amendment without, don't let him/her off the hook.  In your petition for rehearing, call that judge to task by pointing out his/her misconstruction of Miller in detail.