United States vs. Miller

I originally became curious about the details of United States vs Miller several years ago when I found both sides of the Second Amendment argument claiming it supported their position. Finding this a bit puzzling, I decided to do some research to determine what was what.

I think the result of my efforts will help make you an instant "expert" on United States vs Miller: if more than fifty people alive have read all these documents, I'd like to meet them. I have included every published procedural document of the case leading to the appeal, from mundane court documents to the Supreme Court opinion written by Justice James McReynolds. I've included a thumbnail biography of McReynolds himself, along with my own viewpoint of the decision.

The biography on McReynolds is based, with a Second Amendment slant, on a chapter written by David Burner in The Justices of the United States Supreme Court: Their Lives and Major Opinions, edited by Leon Friedman and Fred L. Israel. I refer you to this for a better-written and expansive account of McReynolds' life.

The main source of supporting facts for my viewpoint on Miller is a five-volume series edited by Bernard Schwartz, entitled The Roots of the Bill of Rights. If your public library does not have the series, encourage them to purchase it. It is an excellent compilation of the events and documents leading to the Bill of Rights. I had read many of these manuscripts before, but not within one set of volumes.

The process of transcribing documents from photocopies of the original is tedious at best. With the help of my wife, Diann, I have proofread every word numerous times, but it is likely small mistakes remain. I am confident they are of a minor nature and will not detract from your understanding of the case. Everything, including misspelled words, has been transcribed as found. I did rearrange line spacing of the original documents to facilitate your reading comfort. Words in boldface generally indicate they were part of a pre-printed court document. Documents are presented in chronological order. Auxiliary information that could not be easily incorporated in word-processed text is noted within brackets: [ ] and { }. Any word or signature I was not reasonably certain of is followed by a question mark: ? . I referred to the grammar book faithfully for the sections I wrote, but Perfectionism lost out to Time. I request your tolerance in that regard.

My special thanks to Taylor Joyce, U.S. District Court, Western District of Arkansas, for his help on the background of Jack Miller.

On September 22, 1938, the Fort Smith, Arkansas, Southwest American reported that "Jack Miller and Frank Layton of Claremore were re-indicted on a charge of transporting a sawed-off shotgun from Claremore to Siloam Springs last April 18." Both Miller and Layton had originally pleaded guilty upon their first indictment, but Federal Judge Heartsill Ragon suggested they withdraw their plea and appointed a lawyer to represent them. In the ensuing arguments, Judge Ragon sustained the lawyer's demurrer to the indictment, holding that the National Firearms Act of 1938 was unconstitutional. The prosecution then appealed the case to the Supreme Court.

Jack Miller was a bit of a curiosity. He was a Native American, weighed 240 pounds, and as a member of the Irish O'Malley gang participated in several bank robberies. Miller was the gang's "follow-up" man, providing cover for other members who initiated the hold-ups.

Indited with other gang members for the simultaneous robberies of two banks in Okemah, Oklahoma, on December 22, 1934, Miller turned state's evidence and received immunity. He was released from prison on November 27, 1935, following the conviction of four other gang members for the robbery. However, six days later, on December third, the wife of one of the four remaining criminals visited her husband and was able to smuggle in a firearm. A breakout followed immediately, and the four escaped. The chief of detectives was fatally wounded and a prisoner who tried to escape with the gang members was killed. And, for a short while, state's evidence Miller was no doubt a very worried man. Within a week, however, two of the escaped gang members had been killed and the other two re-captured.

Obviously, Miller had reason to be concerned about his personal safety, but whether this had anything to do with his possession of the infamous sawed-off shotgun two-and-a-half years later is speculative. Considering current efforts to ban or prohibit various firearms, the other indictments for his September, 1938, court session are insightful: most were for moonshining, and one was for carrying a couple of ounces of marijuana across state lines without paying a transfer tax.

Alas, Jack Miller's end was an unhappy one. The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body. He was forty years old.

Little was reported regarding Frank Layton. He pleaded guilty to the charge of transporting a sawed-off shotgun after the Supreme Court decision and was placed on five year's probation by Judge Heartsill Ragon on January 8, 1940. Layton was discharged from supervision on January 29, 1944.

Fort Smith Division

United States vs. Jack Miller

Charge before Commissioner: Violation National Fire Arms Act.

Being sufficiently advised in the premises, the amount in which the defendant Jack Miller is held to bail in the above entitled matter is reduced to $2000.00.

This May 3, 1938.

{signed} Heartsill Ragon

Judge.

Fort Smith Division, May 3, 1938.

US v Jack Miller Frederick for U.S.

Order reducing bail bond of defendant Miller to $2000.00.

[initialed] T. R.

[This document filed May 19, 1938, William S. Wellshear, Clerk, by Truss Russell, Deputy Clerk.]

Western District of Arkansas ss:

Ft. Smith Division

BE IT REMEMBERED, That on this 16th day of May A.D. 1938, before me, Paul McKennon, a United States Commissioner for the said Western District of Arkansas, Ft. Smith Division, personally came Jack Miller Principal and D. A. Blackburn Sureties and jointly and severally acknowledged themselves to owe the United States of America the sum of Two Thousand Dollars, to be levied on their goods and chattels, land and tenements, if default be made in the condition following, to-wit:

THE CONDITION of this Recognizance is such, that if the said Jack Miller Principal shall personally appear before the District Court of the United States in and for the Western District of Arkansas, on the opening day of the June term, 1938, to be begun and held at the City of Ft. Smith, at 9 o'clock A M., on the 6th day of June A. D. 1938, and from day to day and from time to time thereafter, until finally discharged therefrom, then and there to answer the charge that on or about the 18th day of April 1938, within said district in violation of 1138e Title 35 and 1132b 113e Title 26 USCA he did unlawfully possess a firearm which was unlawfully transfered contrary to the form of the statute in such cases made and provided and against the peace and dignity of the United States of America, and then and there abide the judgement of the said Court, and not depart without leave thereof, then this Recognizance to be void, otherwise to remain in full force and virtue.

{signed} Jack Miller

{signed} D. A. Blackburn

{signed} Paul McKennon

United States Commissioner as aforesaid.

Western District of Arkansas ss:

Ft. Smith Division

D. A. Blackburn, a surety on the annexed recognizance, being duly sworn, deposes and says that ..he resides at Clarksville in the county of Johnson in said District, that ..he is the owner of real estate in Johnson county in the District of Arkansas, that ..he is worth at least the sum of 2,000 over and above all his, her, just debts and liabilities, in property subject to execution and sale, and that his, her, property consists of real and personal property in Johnson county, Arkansas located at. . .

Affiant's Signature {signed} D. A. Blackburn

Sworn to and subscribed before me, this 16th day of May,

A. D. 1938

{signed} Paul McKennon

No. 3917

Dist. Court United States,

Western Dist. of Ark.

THE UNITED STATES vs. Jack Miller [and] Frank Layton

INDICTMENT 1 ct. Sec. 1132c, T 26

U.S.C.A.

{signed} M. Johnson, Foreman.

Filed June 2, A.D. 1938

Wm S. Wellshear, Clerk.

By Truss Russell, Deputy.

{no signature} U.S. Attorney.

Western District of Arkansas ss:

Ft. Smith Division

In the District Court of the United States, in and for the Western District aforesaid, at the January Term thereof, A.D. 1938,

The Grand Jurors of the United States, impaneled, sworn, and charged at the Term aforesaid, f the Court aforesaid, on their oath present, that Jack Miller and Frank Layton on the 18th day of April, in the year of our Lord nineteen hundred thirty-eight, in the Ft. Smith division of said district and within the jurisdiction of said Court, did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-guage Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having in their possession a stamped-affixed written order for said firearm as provided and required by Section 1132c, Title 26, United States Code (June 26, 1934, c 757, #4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the "National Firearms Act" approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

Clinton R. Barry, United States Attorney.

By: {signed} Duke Frederick, Assistant United States Attorney

[Filed Jun.11, 1938, Wm. S. Wellshear, Clerk, by Truss Russell, Deputy Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

THE UNITED STATES, Plaintiff,

vs

JACK MILLER and FRANK LAYTON, Defendants.

DEMURRER TO INDICTMENT

Come the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as National Firearms Act, approved June 26, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved by the States of the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these said defendants, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) and Section 1132 (j) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c), transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the statutes of the United States.

5. That the indictment charges the defendants "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132(c) and section 1132(j) Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26, 1934"; that said Section 1132(c) and Section 1132(j) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer of said firearms by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the statutes of the United States.

{signed} Paul E. Gutensohn

Attorney for Defendants

[Filed June 11, 1938, Wm. S. Wellshear, Clerk.]

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

United States, Plaintiff,

v.

Jack Miller and Frank Layton, Defendants.

MEMO. OPINION

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, c.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The demurrer is accordingly sustained.

This the 11 day of June 1938.

{signed} Heartsill Ragon

United States District Judge.

No. 3926

District Court United States, Western Dist. of Arkansas

Jack Miller [and] Frank Layton

INDICTMENT. 1 ct. Sec. 1132j, T 26, USC

{signed} Richard R. Hampton (?), Foreman.

Filed Sept. 21, A.D. 1938

Wm. S. Wellshear, Clerk.

By Truss Russell, Deputy.

{no signature} U.S. Attorney

Western District of Arkansas ss:

Ft. Smith Division

In the District Court of the United States, in and for the Western District aforesaid, at the June Term thereof, A.D. 1938,

The Grand Jurors of the United States, impaneled, sworn, and charged at the Term aforesaid, of the Court aforesaid, on their oath present, that Jack Miller and Frank Layton on the 18th day of April, in the year of our Lord nineteen hundred thirty-eight, in the Ft. Smith division of said district and within the jurisdiction of said Court, did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-guage Stevens Shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearms as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237), and not having in their possession a stamped-affixed written order for said firearm as provided by Section 1132c, Title 26, United States Code (June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the "National Firearms Act" approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

Clinton R. Barry, United States Attorney.

By: {signed} Duke Frederick

Assistant United States Attorney

[No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J. A. Phillips, Deputy Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

THE UNITED STATES, PLAINTIFF,

VS.

JACK MILLER AND FRANK LAYTON, DEFENDANTS.

DEMURRER TO INDICTMENT

Comes the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as the National Firearms Act, approved June 26th, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved to each of the States in the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendants under the allegations of the indictment, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c) , transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the laws and statutes of the United States.

5. That the indictment charges the defendants with "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132 (c), Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26th, 1934"; that said Section 1132 (c) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the laws and statutes of the United States.

6. That any provision of the said National Firearms Act, approved June 26th, 1934, which requires a registration of the said firearm as required by Section 1132 (d) of Title 26 United States Code, and not having in their possession a stamp affixed order for said firearm as provided by Section 1132 (c) Title 26 United States Code, is in violation and contrary to the said Second Amendment to the Constitution of the United States, is unconstitutional and does not state facts sufficient to constitute a crime under the statutes of the United States and the indictment further does not state sufficient facts to constitute a crime under the laws and statutes of the United States in that there was a total failure to charge a transfer of said firearms by or to the said defendants.

{signed} Paul E. Gutensohn

Attorney for Defendants

[No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J.A. Phillips, Deputy Clerk.]

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

United States, Plaintiff,

v.

Jack Miller and Frank Layton, Defendants.

MEMO. OPINION

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The demurrer is accordingly sustained.

This the 3rd day of January 1939.

{signed} Heartsill Ragon

United States District Judge.

[No. 3926, filed January 30, 1939, by Wm. S. Wellshear, Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA, Plaintiff,

v.

JACK MILLER and FRANK LAYTON, Defendants

PETITION FOR APPEAL

Comes now the United States of America, plaintiff herein, and states that on the 3d day of January, 1939, a demurrer of the defendants Jack Miller and Frank Layton to the indictment herein was by the Court sustained, and the plaintiff feeling aggrieved at the ruling of the District Court sustaining said demurrer, prays that it may be allowed to appeal to the Supreme Court of the United States for a reversal of said judgement and order and that a Transcript of Record in this cause duly authenticated may be sent to said Supreme Court of the United States.

Petitioner submits and presents to the Court herewith a statement showing the basis of the jurisdiction of the Supreme Court to entertain an appeal in said cause.

UNITED STATES OF AMERICA

{signed} Clinton R. Barry

CLINTON R. BARRY

United States Attorney,

Western District of Arkansas

[No. 3926, filed January 30, 1939, by Wm. S. Wellshear, Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA, Plaintiff,

v.

JACK MILLER and FRANK LAYTON, Defendants

ASSIGNMENTS OF ERROR

Comes now the United States of America by Clinton R. Barry, United States Attorney for the Western District of Arkansas, and avers that in the record proceedings and judgment herein there is manifest error and against the just rights of the said plaintiff, in this, to wit:

1. That the court committed material error against the plaintiff in holding that Section 11 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239, is invalid as violating the Second Amendment to the Constitution of the United States providing that "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

2. That the court committed material error against the plaintiff in sustaining the demurrer of the defendants Jack Miller and Frank Layton to the indictment.

{signed} Clinton R. Barry

CLINTON R. BARRY

United States Attorney

Western District of Arkansas.

[No. 3926, Filed January 30, 1939, by Wm. S. Wellshear, Clerk]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA, Plaintiff,

v.

JACK MILLER and FRANK LAYTON, Defendants.

STATEMENT OF JURISDICTION

In compliance with Rule 12 of the Supreme Court of the United States, as amended, the United States of America submits herewith its statement showing the basis of the jurisdiction of the Supreme Court to entertain an appeal in this cause:

A. The statutory jurisdiction of the Supreme Court to review by direct appeal the judgement complained of is conferred by Title 18, Section 682, of the United States Code, otherwise known as the "Criminal Appeals Act", and by Section 345, Title 28, of the United States Code.

B. The statute of the United States, the constitutionality of which is involved herein, is Section 11 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239 (U.S.C., Title 26, Sec. 1132j).

Section 11 of the National Firearms Act is as follows:

It shall be unlawful for any person who is required to register as provided in Section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in Section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce.

Section 5 of the National Firearms Act, 48 Stat. 1238 (U.S.C., Title 26, Sec. 1132d), referred to in Section 11 of the Act is as follows: