DOJ Brief in DC Gun Case Distorts the Truth About Machine Guns

In 1939, the Federal government perpetrated a fraud upon the Supreme Court, and it led to bad law that undermined the Second Amendment. Last week, they did it again.

In 1939 in US v. Miller, the Supreme Court ruled that because there was no evidence that a short-barreled shotgun had any relation to militia use, it was not protected under the Second Amendment. A Department of Justice brief claimed that short-barreled shotguns weren’t used by the military, when in fact they were. But because defendant Miller had disappeared and was unrepresented by counsel, this fraud went unchallenged, and became the foundation for the Miller decision.

Now, the Bush Department of Justice (DOJ) has filed a brief with the Supreme Court in the District of Columbia v. Heller case, which overturned the DC handgun ban. The DOJ brief perpetrates another critical misconception in an apparent attempt to protect a questionable federal machine gun ban from Constitutional challenge.

Since 1934, machine guns have been heavily restricted, requiring purchasers to submit to a rigorous background check including fingerprints and a $200 tax. Since 1934, about 100,000 machine guns have passed lawfully into civilian hands by this strict procedure, which no one is proposing to repeal, even though it was upheld only by the Constitutionally shaky Miller decision.

In 1986, a new federal law banned any more machine guns from ever reaching the hands of ordinary, law-abiding citizens. That meant that the existing collection of about 100,000 privately-owned machine guns would be the only ones ever to be lawfully possessed. That’s well less than one machine gun for every thousand American gun owners.

Under the 1986 federal machine gun ban, ordinary people will never again own modern rifles of the type normally carried by troops in the “standing army.” Over the generations, this collection of 100,000 legally “grandfathered” machine guns is becoming worn from use, and functionally obsolete as firearms technology advances. Because of their scarcity, these arms find their way into the hands of wealthy collectors and museums, escalating their market price to extraordinary levels at least ten times what they would be without the ban, compared to modern semi-auto equivalents.

The recent DOJ brief in Heller seeks to preserve this 1986 federal machine gun ban through the back door, even though the issue has not been litigated, and is irrelevant to the question before the court.

In the Heller opinion, the Court of Appeals ruled that banning one whole category of arms (pistols) was as impermissible as banning all firearms. The opinion pointed out that a government could ban all guns, and argue that one still had the right to keep and bear some “arms” if one could still lawfully own a saber. The DOJ brief worries that this prohibition on banning whole categories of arms would be extended to overturn the 1986 machine gun ban.

The DOJ’s brief justifies its fears of machine guns in the hands of law-abiding citizens only by unsupported references to “particularly dangerous types of firearms,” and “types of firearms that are particularly susceptible to misuse.” It raises the issue of whether a type of firearm “poses specific dangers.” The brief states that the federal machine gun ban is “carefully targeted to firearms that have little or no legitimate private purpose,” and that “the government’s interest in regulating firearms like the machine gun to protect the public safety is paramount.”

The apparent fear of the Bush DOJ is that we return to the 52-year era from 1934-1986 when any law-abiding citizen that passed a rigorous background check could purchase a new machine gun from any manufacturer willing to sell to him.

So, just how dangerous was that era? The DOJ brief doesn’t offer a shred of evidence that any lawfully-owned machine guns were misused, or ever endangered public safety. The reality is that during the 52-year period before the 1986 machine gun ban (when hundreds of thousands of conventional firearms homicides occurred) there were exactly zero homicides committed using these registered machine guns. Zero.

The DOJ brief perpetrates the misconception that lawfully-owned machine guns are a danger, when in fact they represent by far the safest category of firearms and owners. It would be a grave error if the Justices were to be misled by the false fears raised by the DOJ brief, and extended their ruling on the DC handgun ban to prop up the Constitutionally questionable 1986 federal machine gun ban.

The Constitutionality of the federal machine gun ban is in serious doubt because it bans from private hands the arms most relevant to militia service, and it undermines the benefit of an armed citizenry as a bulwark against a standing army. But the Court should limit its ruling to the case before it, and not be goaded by the DOJ to inject improper dicta about a Constitutional question that deserves to be addressed only after a proper hearing of the evidence.

In Miller, the Court ruled in the absence of proper evidence and generated questionable law. That mistake must not be repeated.

But because defendant Miller had disappeared and was unrepresented by counsel,

While he was unrepresented, he was not a defendant. The case had been dismissed by the district court, on the grounds that the NFA was unconstitutional as a violation of the second amendment. The Government was, in today's terms, the petitioner, while Miller and Layton, his former co-defendant, would have been the respondents, had they been represented.

The Government, which did indeed commit fraud, had appealed *directly* to the Supreme Court, not bothering with the Circuit Court of Appeals.

The Government maintained that the Second Amendment only protect state militias. The Court did not even mention that notion in it's opinion, but since Miller and Layton weren't exactly choirboys (Miller had been part of a bank robber gang) I think the Court didn't want to let them off, and so ginned up the notion that only keeping and bearing arms with some relationship to a militia, IOW those of military utility, were protected.

Of course *all* weapons, most especially all firearms have some military utility, as admitted only a few years later by the 1st Circuit in Cases

Here's a link to a good collection of Miller Court documents from the initial indictment to the release from parole of Layton (who plea bargained rather than stand trial after the Supreme Court ruling). Too bad too, as all the SC had done was send the case back to the same district court judge who had originally quashed the indictment, for "further proceedings" where evidence could have been taken, pretrial even, that a short barreled shotgun did have military utility and that some were used in WW-I, the Banana Wars, the Philippine insurrection and even the Indian Wars. (Standard Issue Trench sweeper of WW-I did not have too short a barrel, but there were variants that did, and in those earlier wars short double barrels, similar to the one Miller possessed, undoubtedly were used, especially in the Philippines which was very much a jungle guerrilla affair.

The VAST majority of the DOJ is from the Clinton Administration.

And a bunch of mostly Clintonoid, and all DemonRat, fomer DoJ officials, including Jackboot Janet, gas 'em and burn 'em, Reno, and Jamie, "Wall of Separation", Gorelick, filed an even worse brief which actually harkens back to the Roosevelt DoJ's arguments in the Miller Case (find "BRIEF FILED BY THE UNITED STATES") in arguing that the Second Amendment does not protect an individual right. Below is the "Summary of argument" from that brief:

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment.

Below is the Summary from the brief in the current case by Janet Reno, et. al.:

Gun violence continues to exact a devastating toll on communities throughout the United States. Every year thousands of homicides are committed with firearms, as are hundreds of thousands of non-lethal crimes, including rapes, robberies, and assaults. Crimes involving firearms have a long history in America. The first significant federal legislative response to such crimes was the enactment of the National Firearms Act of 1934 (NFA), which imposed a prohibitive tax on the transfer of firearms considered desirable to criminals. Congress built on the NFA in subsequent legislation. The Federal Firearms Act of 1938 imposed licensing requirements on gun manufacturers and dealers and prohibited licensees from shipping firearms to certain classes of persons. The Gun Control Act of 1968 (GCA) strengthened licensing requirements and expanded the categories of persons prohibited from possessing firearms. The Brady Handgun Violence Prevention Act of 1993 requires federal firearms licensees to conduct a background check on prospective gun buyers before making a sale.

Enforcement of those gun-control laws is a critical component of the mission of the Department of Justice. The Department prosecutes thousands of defendants for firearms violations every year. In opposing Second Amendment challenges to those prosecutions, the government contended for more than 60 years that the Second Amendment did not protect an individual right to keep and bear arms for purposes unrelated to participation in a well-regulated militia. The government set out that position in its brief in United States v. Miller, 307 U.S. 174 (1939), the only prior case in which this Court has squarely addressed a Second Amendment challenge to federal firearms legislation. In rejecting the defendants’ Second Amendment challenge to the NFA, which rendered unlawful their transport of an unregistered sawed-off shotgun across state lines, the Court agreed with the government that the “possession or use” of a firearm must “ha[ve] some reasonable relationship to the preservation or efficiency of a well regulated militia” to fall within the scope of the Second Amendment. Id. at 178. The government continued to press that position successfully in the federal courts of appeals for the rest of the Twentieth Century. In evaluating the constitutionality of proposed firearms legislation over the same time period, the Department, through the Office of Legal Counsel, repeatedly expressed the same view.

In May 2001, despite the longstanding position of the Department of Justice and uniform body of favorable federal appellate precedent, Attorney General John Ashcroft wrote a letter to the National Rifle Association expressing the view that the Second Amendment “protects the private ownership of firearms for lawful purposes.” May 17, 2001 Letter from John Ashcroft, Attorney General, to James Jay Baker, Executive Director, National Rifle Association Institute for Legislative Action (Ashcroft Letter), http://www.nraila.org/images/Ashcroft.pdf. The Attorney General’s statement contradicted the longstanding position of the United States, which government lawyers had advanced in pending cases, including a case in the Fifth Circuit involving a Second Amendment challenge to a federal law prohibiting the possession of firearms by persons subject to a domestic violence restraining order. Although the Fifth Circuit ultimately rejected the defendant’s claim, the court recognized a Second Amendment right of individuals “to privately possess and bear their own firearms, . . . that are suitable as personal, individual weapons.” United States v. Emerson 270 F.3d 203, 260 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).

Emerson was the first federal appellate decision to adopt the view that the Second Amendment protects an individual right to keep and bear arms for purposes unrelated to the effective functioning of the militia. After the decision was issued, the Attorney General adopted it as the position of the United States.

As the briefs filed by the petitioners and their amici in this case explain, the original, longstanding position of the Department of Justice, embraced by this Court in Miller and by all the federal courts of appeals until the Emerson decision and the decision below, is firmly rooted in the text of the Second Amendment, its drafting history, and the historical context in which it was enacted. Given the strength of the Department’s original position and its acceptance by the courts, the decision to abandon it in 2001 was unjustified.

The decision was also unwise. Recognition of an expansive individual right to keep and bear arms for private purposes will make it more difficult for the government to defend present and future firearms laws. With gun violence continuing to plague the United States, this Court should adhere to the position it staked out nearly 70 years ago in Miller and construe the Second Amendment to protect a right to keep and bear arms only to the extent the exercise of such a right is related to the “preservation or efficiency of a well regulated militia.” 307 U.S. at 178.

As you can see summaries have gotten wordier since the late 1930s. :)

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