Saturday, June 21, 2014

It really isn't about duck hunting.

The famous (or infamous) Miller decision that upheld NFA '34 turned on the fact that a sawed-off double-barrel hardware store shotgun had no contemporaneous military purpose and therefore no relevance to a militia. It's pure speculation, but if that dirt-poor moonshiner had been busted with a BAR or Tommy gun, the National Firearms Act would have been a queer historical footnote struck down in 1939 after less than five years.

A lot of gun-grabbers like to name-drop U.S. v. Miller while they're in the middle of some pious speech about how they respect our Second Amendment right to hunt ducks and maybe use the fowling piece to scare burglars off between seasons. This makes it obvious that they haven't read the decision, since Joe Biden's theoretical Perazzi has even less "reasonable relation to the preservation or efficiency of a well regulated militia" than that Depression-era peckerwood's cut-down Stevens.

The Second Amedment doesn't read "A well-taxidermied deer head being necessary to the security of a free state...", which brings us to the latest decision coming out of Pennsylvania, where a judge ruled that
...she could find no proof that courts have extended Second Amendment protections to include recreational hunting.
And it's true. As commenter Geodkyt pointed out over there, if there's a constitutional protection to be found for hunting, it's in the Ninth or Tenth Amendment, or maybe... maybe in some fancy-dan penumbra emanating from our enumerated right to own M249 Squad Automatic Weapons to shoot invaders and tyrants and keep the King of England out of our face. After all, it could be argued that using them on deer would keep one sharp and skilled and would therefore help fulfill the actual purpose of the Second Amendment.


Ted N said...

249? Bah. 240 is much more fun.

Fred said...

I have such a love/hate relationship with the SAW... They're awesome when they work, but mine locked up so bad during mobilization that I had to beat the take-down pins out with a hammer just to clear it.

That said, I'd still buy one for myself if I could.

Dwight Brown said...

"It's pure speculation, but if that dirt-poor moonshiner had been busted with a BAR or Tommy gun, the National Firearms Act would have been a queer historical footnote struck down in 1939 after less than five years."

Tam, I'm sure you've forgotten more about Miller than I'll ever know.

One thing I've heard repeatedly is that the US military used sawed-off shotguns as trench weapons during WWI, which would have gone directly to the argument that they did have a military purpose. Apparently, for various uninteresting reasons, Miller's defense attorney wasn't able to introduce evidence of this before the court.

Have you ever heard this story, and do you think it's possible Miller would have been decided differently if such evidence had been introduced?

Tam said...


It's entirely possible that if Miller had had a short-barelled M1897 Winchester (especially one with ordnance proofs) instead of a Stevens double that the court may have ruled differently, but sawed-off side-by-sides hadn't been of military significance since Mosby.

Joel said...

I understand why a person might choose not to be a gun rights activist, or any other sort of activist. But I do not understand shotgun-toting fudds who - sometimes loudly - want to throw EBR-waving gun nuts under the legislative bus in hopes that the million morons will then go away and let them shoot pheasants in peace. Those people have no sense of history whatsoever.

Rob K said...

It would have been nice if someone had shown up to argue for Miller. It would have been nice also if the proceedings it was remanded for had happened.

For those of you who haven't read it, you can find the actual decision at US v. Miller. It's short and very worth reading.

Bubblehead Les. said...

Couple of Technical Details in case someone out there decides to push Miller through the Courts.

A) Anyone know what the Barrel Lengths of the Shotguns used for Door Breaching by the U.S. Military and Law Enforcement?

B) Anyone know what the Barrel Lengths of the Line-Throwing Shotguns used by the U.S. Navy and Coast Guard, mostly for Under-Way Replenishment and Rescue Ops?

I'm sure they have NSNs, which make them a "Viable Use" by the Military.

It's a Stretch, I know, but since these Anti-Freedom Judges tend to Ignore Court Cases that might stop their Agenda, every little bit helps.

rickn8or said...

What Rob K. said. DAMN that attorney!

My usual response when Miller is quoted at me is "Okay, Miller wasn't entitled to have a short-barreled shotgun because it wasn't a military-pattern weapon. I am not entitled to have a full-auto AK/AR because it's a military-pattern weapon."

Yeah, I know; applying logic to a gun-grabber argument is an exercise in futility.

Turk Turon said...

Somewhere out there is a long law journal article on the Miller case. Tam, you make a good point: what if 'ol Earl had been caught with an MG instead of an SG? Well, it could still happen! But those poor souls at Waco were suspected of having converted MGs, weren't they? That was some en banc hearing they got.

Ratus said...

My understanding of this is that Miller was deceased at the time of the Supreme Court hearing.

So wouldn't the case be moot?

Can't prosecute a dead man, can you?

John Richardson said...

The Anti-Federalists in Pennsylvania issued a dissent from that state's ratification of the US Constitution. They wanted a Bill of Rights included. Justice Scalia referred to that in the Heller decision as a rebuttal to Justice Stevens arguing the 2A was only for militias.

They believed in not only a right to keep and bear arms for hunting but a constitutional right to hunting itself.

7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.

8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be -passed by the legislature of the United States.

I wonder if the judge in PA was even aware of that historical document. That said, I agree that it was a shame that Miller didn't have a Winchester 97 with an ordnance bomb on it.

D.W. Drang said...

Bubblehead Les: Somewhere in the twilight of my Army career I got my handson the actual document Common Table of Allowances 50-909. It's out there on the intert00bz. (It may be that CTA50-900 is what you want.)
But it includes things like shotguns with barrels as short as 11" for MP personal security detachments. (Breechers are usually 18"+.)
The version I had, in the mid-90s, included tack and portable forges for the ceremonial cavalry detachments at Forts Hood, Carson, and Huachuca...

Rob K said...

I read that same article, Turk. A little googling turned it up. It really throws a lot of light on what it was all about.

Don M said...

Thanks for clearing the urban legend cobwebs from my anti-brain this AM.

Tam said...


"They believed in not only a right to keep and bear arms for hunting but a constitutional right to hunting itself."

I am aware, but they didn't get it. Ruling on things people (even 18th Century people) wished were in the Constitution is bad precedent, IMO. ;)

Fred said...

The shortest shotgun in regular use by the Army that I can think of is the M26, and that's only to fit everything under an M4 barrel. Otherwise it's all 20" barreled pumps.

Kristophr said...

A good lawyer could have argued that an SBS was a military or police weapon, as there were examples available.

Unfortunately, Miller had died before the case got to the SCOTUS, so his lawyer did not bother to show up.

Only the fed's side was heard.

Jerry The Geek said...

The question about what kind of 'illegal' firearm was involved in the Miller case is moot; as Bob K. (and others) observed, NEITHER of the two people arrested appeared at the all-important trial.

Miller's attorney informed the Supreme Court that Miller had insufficient funds to mount a defense, and suggested that the court rely on the government arguments. SCOTUS remanded the case to District Court.

And yes, this situation would be considered malpractice today.

At the trial, the judges only heard the government side and the question of whether the short-barreled shotgun was a 'militia' weapon never really mattered.

Miller was murdered before the decision was announced.

Information from "Supreme Court Gun Cases". Kopel/Halbrook/Korwin)
Get a copy, it'll make you fume.

Kevin said...

The whole case was a complete railroad, it was expressly designed to produce the outcome they wanted. The defendant pled guilty the judge instead declared the law unconstitutional, then handed the case directly to the supreme court, who of course accepted it. The defense didn't get paid for an appeal, so there was no lawyer and only the government side was heard.

It really didn't matter what the facts or the law said.

rickn8or said...

"A good lawyer could have argued that an SBS was a military or police weapon, as there were examples available.

Unfortunately, Miller had died before the case got to the SCOTUS, so his lawyer did not bother to show up.

True. But I'd hate to be a lawyer with a reputation of quitting before the job was done.

Tam said...

"Information from "Supreme Court Gun Cases". Kopel/Halbrook/Korwin)
Get a copy,

It's so fucking cute the way you think I haven't.

Tam said...

Also, there's obviously an awful lot of myth and urban legend sprung up around this case...

Derfel Cadarn said...

When taken in conjunction with the many other writings of the founders one can only conclude that the People's owing and use of weapons were for protection from out of control governments and any other reason the People desired. They continually fail to recognize that the government exists at and for the People's pleasure. That friends trumps any and all of their semantic BULL$HIT

Unknown said...

As Kevin said- Miller was going to plead guilty. The judge in the case, Heartsill Ragon was a rabid FDR supporter and gun hater, who wanted the second ammendment quashed. He ruled "for" the second ammendment to get it kicked it up the supreme court.

As a member of the US Congress, Ragoon said 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.”

Does this sound like a guy who believes in the Second Ammendment?

The Supreme Court ruled against Miller, as Ragoon was expecting. Of course, Miller was dead and there was no lawyer for him anyway.

No matter what weapon Miller had, he would have been ruled against. Not a single Judge in the Supreme Court voted against the NFA. It is just as well for us that he didn't have a BAR.

Matthew said...

I believe (I read/heard somewhere?) the original NFA included a pistol ban, and the SBS/SBR regs were added to prevent folks working around it.

When the pistol ban was found to be untenable it was dropped, but the SBR/SBS regs, whose only real justification was to buttress the pistol regs, remained.

Again, haven't gone back to check all that but I doubt I could have invented it out of whole cloth.

Correction and mild heckling welcome.

Tam said...



The NFA was originally intended to cover any firearm that could be carried concealed: Pistols, short rifles and shotguns, basically anything a gangster could put under an overcoat.

The National Revolver Association fought to get handguns removed, and did so, which is why the SBR/SBS regs remain as an odd vestige of that.

Matthew said...

Thank you. :)

I will correct my understanding.

Geodkyt said...

John Richardson said...
12:17 PM, June 21, 2014

The Anti-Federalists in Pennsylvania issued a dissent from that state's ratification of the US Constitution.

And. . . so what?

That provides, at most, context.

However, the "hunting" protections did not make it into the Second Amendment despite having been proposed for inclusion.

When a legislative body specifically rejects including specific language, that pretty much establishes that the words they voted not to use were never intended to be covered by that act.

Arguing otherwise is like people who argue that various state RKBA provisions specify "hunting" as a purpose. Which would be fine, well, and relevant, were they posing a challenge to the law in question under the state constitution that protects hunting. When challenging the law in federal court, under a federal Constitutional argument, only the federal RKBA counts.