On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.
Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. But courts struggle to decipher its holding. Some find Miller adopted an individual right theory of the Second Amendment, some find it adopted a collective right theory, and some find it adopted a hybrid theory, protecting the right to possess a firearm in connection with militia service. Most recently, in Parker v. District of Columbia, the D.C. Circuit concluded Miller assumed the Second Amendment protects an individual right to possess and use weapons “’of the kind in common use at the time,’” including handguns.
Oddly, Second Amendment scholars have largely ignored Miller. While individual and collective right theorists alike claim Miller supports their position, most provide only a perfunctory account of the case. The few exceptions focus on the text of the opinion, rather than the history of the case, and the context in which it was decided. All conclude Miller is an impenetrable mess.
This essay suggests the conventional wisdom is only half-right, because Miller did less than generally supposed. Part I presents a brief historiography of Miller. It argues scholars have not provided an entirely convincing account of the Supreme Court’s holding in Miller, largely because they focus on the original meaning of the Second Amendment. Part II recounts the history of the case. It shows Jack Miller was a career criminal and government informant. It finds Miller was a Second Amendment test case arranged by the government and designed to support the constitutionality of federal gun control. And Part III analyzes Miller in light of this history.
This essay concludes that Miller is coherent, but largely irrelevant to the contemporary debate over the meaning of the Second Amendment. Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent. In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.