Shotgun News, April 1, 2008, pp. 28-29back to http://www.claytoncramer.com
If you have read much about the last U.S. Supreme Court concerning the Second Amendment—U.S. v. Miller (1939)—you probably know that part of why we didn’t get a particularly powerful endorsement of the individual right was that only one side showed for that case. Why?
The defendants in that case—Jack Miller and Frank Layton—were bank robbers and brutal thugs. They were arrested in possession of an unregistered, sawed-off shotgun in 1938, and charged under the relatively new National Firearms Act of 1934—which required a federal tax stamp and registration for machine guns, short-barreled shotguns and rifles, silencers, and a few other unusual weapons.
These were the days when poor and ignorant defendants didn’t automatically receive a public defender, and Miller and Layton pleaded guilty to the charge, which was pretty open and shut. This should have been the end of the case—but federal Judge Hiram Heartsill Ragon refused to accept their guilty pleas, and instead appointed Carl E. Gutensohn as Miller and Layton’s attorney, who then did what Judge Ragon wanted—he argued that the National Firearms Act was unconstitutional.
Judge Ragon then issued a memorandum claiming that the National Firearms Act was contrary to the Second Amendment, and quashed the indictment. (That’s a legal term that means the judge has decided that the indictment is defective, thus releasing the suspects.) Astonishingly enough, this seems to be the first serious challenge to a law that had already been in place for four years, and that was supposedly necessary because of the widespread criminal misuse of machine guns. Even more astonishing is that Judge Ragon was well-known to be a supporter of restrictive gun control laws, and it appears that the manner in which he handled this—issuing a memorandum decision—was intentionally to set up a test case that would make it easy for the federal government to win.
The U.S. Attorney, unsurprisingly, asked the Attorney General to appeal Ragon’s decision to the Supreme Court. Their argument was that Judge Ragon’s decision was incorrect, and they wanted the Supreme Court to overrule Ragon—otherwise the National Firearms Act would be effectively unenforceable.
So the government appealed the decision. While Gutensohn had been appointed by Judge Ragon to represent Miller and Layton at trial, no one was paying Gutensohn to represent them on appeal—and Miller and Layton didn’t care. They had been released from jail, and promptly disappeared. There was only one side that filed a brief—the U.S. government. No one filed a brief in defense of Miller and Layton—and more importantly, no one filed a brief in defense of the Second Amendment.1 While the Supreme Court’s decision in Miller was nowhere near as bad as the brief filed by the U.S. government, it was still less than a ringing endorsement of the individual right.
That didn’t happen this time. Partly, this is because the attorney at the Cato Institute, Robert A. Levy, whose idea it was to file this suit, decided that it was best to pick the parties. Instead of violent, ignorant bank robbers, or drug dealers, or some other unsympathetic defendants in a criminal case, Levy went out and found squeaky clean people who argued for their right to have a gun for self-defense.
We also have the advantage that there is now an enormous number of people and organizations who care about defending the Second Amendment. The list of amicus briefs filed on the side of gun rights is astonishing—and who signed those briefs is even more astonishing.
Let me explain the terminology. A “brief” is (as the name suggests) an argument presented to a court that is limited to a certain number of words. There is the Petitioner’s Brief (in this case, filed by the District of Columbia, asking the Supreme Court to uphold their 1976 gun control law), the Respondent’s Brief (filed by the attorneys representing the law-abiding residents of the District who want the law overturned), and then there are what are called amicus curiae briefs.
The term “amicus curiae” is Latin for “friend of the court,” and these are briefs submitted by people who are not parties to the lawsuit itself. The original theory of being a ‘friend of the court” was that these were persons who might not have a direct interest in the outcome, but who did want to make sure that the judges deciding the case had all the information required to make a correct decision. In practice, amicus briefs are what happens when everyone on both sides of an important case like pays their best legal eagles to persuade the Supreme Court, “Our side is right.”
Both sides in a case like this try to coordinate their briefs. The amicus briefs are limited to 9000 words, and so you try to make sure that if one brief argues a particular point in detail, the other briefs argue other points in detail. There’s no point in making the same detailed argument in two separate briefs. Depending on the level of coordination, you can present an astonishing amount of information to the court.
In this particular case, I was privileged to be able to assist in this process, reading the Respondent’s Brief, as well as many of the amicus briefs submitted in support of it. I was able to make suggestions, corrections, and do some original historical and criminological research. Because I am not an attorney, my name only appears on one of the briefs—the one submitted by Academics for the Second Amendment, although I did contribute a good bit of information to the Respondent’s Brief, and several of the amicus briefs.
One aspect of the process that is a little frustrating is that 9000-word limit. This means that you can’t afford to waste any words. In a few cases, briefs that I contributed to used a lot of information that I had first located, but only the original sources get cited in the briefs—not my book Armed America in which that information appeared. I’m not the only historian a bit irritated by this. David E. Young, whose book The Founders’ View of the Right to Bear Arms: A Definitive History of the Second Amendment (Golden Oak Books, 2007) was also a major source for many of these briefs, received a bit less attention than it should have, also. (And that’s why I’m mentioning it here.)
Still, the goal is to win—not to satisfy my desperate need for public adulation. We have good reason to be happy with the results. The list of amicus briefs submitted on our side is like looking at a 4th of July parade; it is a long and pretty astonishing list of groups. There are amicus briefs filed by groups that you expect—NRA,2 Second Amendment Foundation,3 Jews for the Preservation of Firearms Ownership4—but also groups that will doubtless startle the more liberal Justices, such as Pink Pistols, a gay gun owners group. Since the District of Columbia has tried to argue that the Second Amendment only protects a right to be armed as part of a governmentally-organized militia, Pink Pistols, along with arguing for the right to defend themselves from gay-bashers, points out that under current U.S. law, they are excluded from military duty—and thus prohibited from being armed, by the District’s peculiar argument.5
One very surprising amicus brief was filed by ten retired U.S. generals (two major generals, five lieutenant generals, three full generals) and the American Hunters & Shooters Association. The generals argued that the complete ban on handguns in D.C., and effectively a ban on self-defense use of long guns, makes it harder for the military to train soldiers, because they arrive at boot camp with so little knowledge of firearms. Okay, that’s not the surprise. The surprise is that the American Hunters & Shooters Association was involved.6 If you haven’t heard of this group, they were set up as a "reasonable alternative" to the NRA several years back, and have generally been regarded as a “false flag” gun control group. Perhaps they really are a gun control group pretending to be “reasonable”—but D.C.’s law was so outrageous that even they admitted it violated the Second Amendment.
We had a few members of Congress take our side, too. Well, more than a few members of Congress. There was a brief signed by 250 members of the House of Representatives, 55 members of the U.S. Senate, and the President of the Senate—who, if you recall your American government class, is also known as Vice President Dick Cheney.7
Oh yes, there’s also “Brief Of The States Of Texas, Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, and Wyoming.” The Attorneys-General of those 31 states signed off on that brief, arguing the D.C. law violates the Second Amendment.8
Now, don’t get the wrong idea. The District of Columbia wasn’t alone. It had a few amicus briefs filed on its behalf, as well. But nothing like the crowd that wanted to get behind us. And I’ve only touched the tip of the iceberg. If you really want to, you can read all the amicus briefs filed on our side online.9
I don’t know if we are going to win this case. I’ve written in the past about my concerns about how some of the justices make decisions. But this is one of those cases where both sides have presented their best possible arguments—and even people in the middle who aren’t on our side agree that we have presented the stronger evidence.
1 Brian L. Frye, "The Peculiar Story of United States v. Miller" . NYU Journal of Law & Liberty, Vol. 2(2007); available at SSRN: http://ssrn.com/abstract=986394. This is an astonishingly detailed and entertaining account of the sequence of events that led up to this decision; well worth reading.