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 stute
media-watchers have been noticing that the Washington Post,
despite its liberal reputation, has been
getting ever more objective and careful in its news reporting. Meanwhile,
the New York Times, despite its reputation for objectivity
and accuracy, has been getting ever sloppier, and trending further
and further left in its reporting — as documented by Smartertimes.com
An excellent illustration of the Post's rise and the Times'
degeneration can be seen in their contrasting treatment of the recent
letter
from Attorney General John Ashcroft to the NRA announcing his belief
that the Second Amendment guarantees an individual right to arms.
Both papers provided background to the Ashcroft letter by discussing
United States v. Miller, the last Supreme Court case
that analyzed the Second Amendment at length. The Washington
Post described the case with perfect accuracy: "In the 1939
U.S. v. Miller decision, the U.S. Supreme Court ruled
that there was no constitutional right to own a sawed-off shotgun
because it had no 'reasonable relationship to the preservation or
efficiency of a well-regulated militia.'"
The Times, on the other hand, misrepresented the case, applying
the spin which gun prohibition groups so often use about Miller:
"Mr. Ashcroft's letter, sent last Thursday in response to an inquiry
from the N.R.A., rejects another interpretation — applied by
the Supreme Court in its last major ruling on the amendment, in
1939 — which holds that the Constitution guarantees only a
collective right to guns through state and federal militias, not
an individual's right."
Note that the Post quoted directly from the Miller
case, whereas the Times did not--and indeed could not, because
the Miller Court never says what the Times claims.
Miller
nowhere explicitly says that the Second Amendment does or does not
guarantee an individual right or a collective right.
It is logically impossible, by the way, for a "collective right"
to exist unless the individuals who belong to the collectivity possess
an individual right. Otherwise, a "collective right" would be like
"collective property" in a Communist country — meaning no right
at all, but instead the government's destruction of the right.
Miller grew out of a 1938 prosecution of two bootleggers,
Jack Miller and Frank Layton, for violating the National
Firearms Act by possessing a sawed-off shotgun without having
paid the required federal tax. The federal district court dismissed
the indictment on the grounds that the National Firearms Act
violated the Second Amendment [26 F. Supp. 1002, 1003 (W.D. Ark,
1939).]
Freed by the district court's ruling, Miller and Layton promptly
absconded, and thus only the government's side was heard when the
case was argued before the Supreme Court. Since a federal statute
had been found unconstitutional, the federal government was allowed
to take the case directly to the Supreme Court, under the law of
the time.
If the Second Amendment only protected the National Guard, then
the Supreme Court would have thrown Jack Miller's case out of court
for lack of standing, since Miller, an Oklahoma bootlegger, was
plainly not a member of the National Guard. Yet the Supreme Court
has never ruled that individuals cannot raise Second Amendment claims.
Instead, the Supreme Court sent the case back to the trial court
for fact-finding about whether Miller's particular firearm (a sawed-off
shotgun) was a militia-type weapon. Miller and Layton being long-gone,
the district court never heard the case again.
The Supreme Court's decision was consistent with the main line of
state court precedent
from the nineteenth century, which said that the right to arms in
state constitutions and in the Second Amendment applied to everyone,
but the right included only arms suitable for militia-type use (e.g.,
a rifle) but not arms suitable only for brawling (e.g., brass knuckles).
For example, in 1891 the West Virginia Supreme Court construed the
Second Amendment to protect an individual's right to own:
"the
weapons of warfare to be used by the militia, such as swords, guns,
rifles, and muskets-arms to be used in defending the State and civil
liberty — and not to pistols, bowie-knives, brass knuckles,
billies, and such other weapons as are usually employed in brawls,
street-fights, duels, and affrays, and are only habitually carried
by bullies, blackguards, and desparadoes, to the terror of the community
and the injury of the State." State
v. Workman, 35 W. Va. 367, 372 (1891).
The minority of state cases extended protection to any weapon that
was suitable for personal defense. The Miller Supreme Court
explained that the "the militia comprised all males physically capable
of acting in concert for the common defense…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."
As the Miller case illustrates, individuals may raise Second
Amendment claims even when they are not in the National Guard, and
are not participating in any type of militia activity. But the only
firearms that the Second Amendment protects are those that may be
suitable for militia purposes.
The confusion about Miller arises from the paragraph in which
the Supreme Court said that Mr. Miller's sawed-off shotgun was not,
as far as the Court knew, a militia-type arm:
"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. Aymette v. State, 2 Humphreys
(Tenn.) 154, 158."
The case cited by the Supreme Court, Aymette,
interpreted the Tennessee Constitution's right to arms to protect
an individual right to own firearms, but only those firearms suitable
for militia use. In dicta, Aymette stated that the
Second Amendment has the same meaning.
The Miller opinion's penultimate paragraph stated, "In the
margin some of the more important opinions and comments by writers
are cited." In the attached footnote, the opinion cited two prior
U.S. Supreme Court opinions and six state court opinions, all of
which treated the Second Amendment or its state analogue as an individual
right, even as the opinions upheld particular gun controls: Presser
v. Illinois, 116 U.S. 252 (1886) (Second Amendment not
violated by ban on armed parades); Robertson
v. Baldwin, 165 U.S. 275 (1897) (Second Amendment not
violated by ban on carrying concealed weapons, because all constitutional
rights contain implicit exceptions); Fife
v. State, 31 Ark. 455 (Second Amendment does not apply
to the states; state right to arms not violated by ban on brass
knuckles); People
v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (Michigan
state constitution right to arms applies to all citizens, not just
militiamen; right is not violated by ban on carrying blackjacks);
Aymette v. State (discussed above); State v.
Duke, 42 Tex. 455 (1874) (Second Amendment does not directly
apply to the states; Texas constitution protects "arms as are commonly
kept, according to the customs of the people, and are appropriate
for open and manly use in self-defense, as well as such as are proper
for the defense of the State."); State v. Workman
(see above).
The Miller footnote likewise cited treatises by Justice Joseph
Story and Thomas Cooley explicating the Second Amendment as an individual
right. Justice Story, in section
1891 of his treatise on constitutional law, explained, "The
right of the citizens to keep and bear arms has justly been considered
as the palladium of the liberties of a republic; since it offers
a strong moral check against the usurpation and arbitrary power
of rulers; and will generally, even if these are successful in the
first instance, enable the people to resist and triumph over them."
But the same Miller footnote also cited a Kansas Supreme
Court decision which was directly contrary; that case held that
the right to arms in Kansas belonged only to the state government,
and in dicta made the same claim about the Second Amendment.
Salina
v. Blaksley, 72 Kan. 230, 83 P. 619 (1905).
So while the weight of the Miller opinion and the sources
it cites are on the side of individual rights, the Court did cite
one lower court case that rejected individual rights. And most importantly,
the Court never explicitly endorsed the individual rights view or
the "collective rights" view.
Thus,
my friend Andrew McClurg, a University of Arkansas Law Professor
who opposes the individual-rights position, provides an accurate
summary when he writes:
"The truth is,
Miller offered
a little something for everyone. It is an ambiguous decision that
failed to unequivocally adopt either a collective right or an individual
right interpretation of the Second Amendment…
"[W]hen
all is said and done, the only certainty about
Miller is
that it failed to give either side a clear-cut victory. Most modern
scholars recognize this fact. For example, Professor Eugene Volokh
describes
Miller as
'deliciously and usefully ambiguous' in an article about using
the Second Amendment as a teaching tool in constitutional law.
That is probably the most accurate statement that can be made
about the case." [McClurg,
"Lotts' More Guns and Other Fallacies Infecting the Gun Control
Debate," 11
Journal of Firearms & Public Policy 139
(1999).]
There
is one other notable feature about Miller:
It is the best thing that the gun-prohibition groups have left,
legally speaking. Because Miller
doesn't
explicitly affirm the Standard Model of the Second Amendment (the
individual-rights view) lower courts that are determined to uphold
repressive gun laws can cling to it. As Southern Illinois University
law professor Brannon Denning details in
Can
the Simple Cite be Trusted?,
some lower courts have cited Miller
for propositions which cannot reasonably be said to flow fromMiller,
in order to uphold anti-gun laws.
The
tide of scholarly legal opinion today is overwhelmingly on the side
of the Standard Model of the Second Amendment. Attorney General
Ashcroft's recent letter is consistent with modern scholarship,
and it is not inconsistent with Miller — despite what
the New York Times wishes to believe.
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