By Dean Weingarten

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.

On June 2, 1938, Miller and Layton were both indicted on one count of violating 26 U.S.C. § 1132(c) by transporting an untaxed short-barreled shotgun in interstate commerce. Both Miller and Layton pleaded guilty, but Ragon refused to accept their plea and appointed Paul E. Gutensohn as counsel.

On June 11, 1938 Miller and Layton demurred to the indictment, claiming that it presented insufficient evidence of a transfer requiring payment of a tax and challenging the constitutionality of the NFA under the Second and Tenth Amendments.  Surprisingly, Ragon immediately issued a memorandum opinion sustaining the demurrer and quashing the indictment. He held that the NFA violates the Second Amendment by prohibiting the transportation of unregistered covered firearms in interstate commerce.

As originally proposed, the NFA also applied to pistols and levied a $1000 tax on manufacturers and importers. However, after the NRA and other firearms associations opposed the inclusion of pistols at the public hearings, the restrictions on pistols were eliminated.  The Ways and Means Committee approved the bill without reservation, and the Finance Committee recommended amending the tax on manufacturers and importers to $500, which the House accepted.  Congress explicitly disclaimed any intention to include “pistols and revolvers and sporting arms” because “there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction.”

Before he became a judge, Ragon represented the Fifth District of Arkansas in Congress from 1923 to 1933.  As a congressman, he was a vocal advocate of federal gun control. In 1924, Ragon introduced an unsuccessful bill prohibiting the importation of guns in violation of state law, and vigorously supported another bill prohibiting the mailing of most pistols, which eventually passed in 1927.  Basically, Ragon wanted to prohibit firearms used by criminals, including pistols.  “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.”  And he specifically dismissed Second Amendment objections to federal gun control. “I cannot see that violence to the Constitution which my friend from Texas sees in this bill.”  If Arkansas could prohibit pistols, so could the United States.

A prominent Democrat, Ragon endorsed Roosevelt in 1932 and helped push the New Deal through the Ways and Means Committee.  In return, Roosevelt made him a district judge.  The NFA was part of Roosevelt’s New Deal program, enacted with broad support shortly after Ragon took the bench. But the Federal Firearms Act of 1938 (sic) was stirring up popular opposition, much of it based on the Second Amendment.  The government needed to silence the complaints, and Miller was the perfect vehicle. Ragon had presided in an O’Malley prosecution, so he knew Miller was a crooked, pliable snitch, who wouldn’t cause any trouble. And Gutensohn was a comer who knew the game and got his due.  Ragon’s memorandum opinion presented no facts and no argument. With no defense muddying the waters, it was the government’s ideal test case.

Supreme Court Clerk Charles Cropley wrote to Gutensohn on March 15, informing him the Supreme Court had accepted the appeal and expected to hear oral argument on March 31.  Gutensohn wrote back on March 22, asking why he had not received the record or the government’s brief and emphasizing that he represented Miller and Layton pro bono.

Cropley replied on March 25,informing Gutensohn that the government had submitted a type-written brief and he could do the same. In the alternative, Cropley suggested the court could postpone oral argument until April 17.
But on March 28, Gutensohn replied by telegram: “Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be present and argue case = Paul E Gutensohn.”

The decision came quickly. On May 15, 1939, Justice JamesClark McReynolds “drawled from the bench: ‘We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.’”

The unanimous vote was 8-0, as Justice Douglas was recused.The papers were bemusedly pleased. The New York Times noted, “The record in the case of Miller and Dayton [sic] does not show for what purpose they were taking the sawed-off shotgun across State lines. Government officials felt, today, however, that the McReynolds decision had given them a new instrument with which to fight bank robbers, gangsters and other criminals, whose favorite arm is the sawed-off shotgun.” 

And Jackson soon asked Congress to enact legislation requiring the registration of all firearms, in order to foil subversives: 

“’It is to be particularly noted that the legislation, the enactment of which I recommend, would in nowise improperly limit the freedom of action of peaceful, law abiding persons. The contemplated legislation would not hamper or hinder any person from purchasing or possessing a firearm. It would merely require him to register the firearm and to record any transfer of the weapon.’”

At about 9 a.m. on April 3, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma. 

The next day,around noon, a farmhand named Fisher discovered Miller’s bullet-ridden corpse on the bank of the “nearly dry” Little Spencer Creek,nine miles southwest of Chelsea, Oklahoma. 

Miller was shot four times with a .38, twice in the chest, once under the left arm, and once through the left arm. The .45 automatic next to him had been fired three times.

On January 8, 1940, Layton pleaded guilty to the reinstated NFA charge and Ragon sentenced him to five years probation. 

Ragon expected an appointment to the Eighth Circuit, but died suddenly of a heart attack on September 15, 1940.