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Will the SCOTUS Decide Parker v. D.C.?

Posted on: September 25, 2007

By George A. Reimann

The last time the SCOTUS confronted the 2nd Amendment directly was U.S. v. Miller in 1939. The Court’s decision was ambiguous at best and each side of the gun control debate claims the decision supports their position.

The first federal law regulating firearms was the National Firearms Act of 1934 which levied a $200 tax on machine guns and sawed off shotguns (with a barrel length of less than 18 inches). The feds claimed that such guns were the weapons of choice for the gangs that developed during prohibition. Jack Miller and his buddy Frank Layton fit the profile of unsavory characters. Miller was a bank robber and moonshiner with serious enemies due to his ratting out of cohorts in a bank robbery. So he needed his sawed off shotgun. Both Miller and Layton were arrested by federal agents in June of 1938 for transporting his shotgun from Oklahoma to Arkansas in violation of the 1934 Act.

The Court’s decision was rendered in May of 1939, however Miller had died in April from multiple bullet wounds. His .45 was by his side with four rounds fired. It seems he needed that sawed off shotgun.

So the Court made its decision without hearing any arguments or examining any evidence presented by Jack Miller that a sawed off shotgun was a suitable militia arm and that his rights under the 2nd Amendment were violated. Thus, without any opposition the Justice Department won its case by default.

In its decision the Court concluded “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” (emphasis added)

But the Court also noted “And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” (emphasis added) In 1939 the kind of arms in common use were bolt action rifles. We had the 1903 Springfield, the Brits had their Enfields, the Germans had their Mausers, etc., The Garand was issued on an experimental basis in 1936 and was not in common use. So when called for service the men were expected to appear with some kind of bolt action rifle (as well as sidearms). Such rifles were abundant due to military surplus sales (starting with Krags after the Spanish-American War) and from commercial production. Today however the arm in common use is the M-16, which is capable of fully automatic fire. It is classified as a sub-machine gun. So, according to Miller, when called for service men are expected to appear bearing M-16s supplied by themselves?

The case of Shelly Parker, et al. v. District of Columbia is certainly more clear cut.

The District’s collective right theorists argued that the Second Amendment protects only a right of the various state governments to preserve and arm their militias. Since the “well regulated Militia” of the founding era no longer exists, application of the Second Amendment depends upon a non-existent institution. The District’s counsel even asserted in oral argument that it would be constitutional to ban all firearms outright.

The United States District Court for the District of Columbia concluded “...that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia.

The opposing positions are clearly stated. Further, an abundance of scholarship was developed in recent decades supporting the individual rights position. Even some university scholars (Sanford Levinson, Yale, and Laurence Tribe, Harvard) who are considered to be Liberal support the individual rights view. So it should be an interesting election year, especially if the SCOTUS decides to take this case.

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