COMMENTARY: Second Amendment haze

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By Robert Levy

This month, the U.S. Supreme Court is expected to decide District of Columbia v. Heller, the most important Second Amendment case in the court's history.

More than five years ago, six Washington, D.C., residents challenged the constitutionality of the city's 32-year ban on all functional firearms in the home. If the challenge is successful, it will mean the court has revisited and perhaps reversed United States v. Miller, the second most important Second Amendment case in the court's history. For nearly seven decades, gun controllers and gun rights advocates alike have struggled to apply the murky doctrines propounded by Justice James Clark McReynolds in his 1939 Miller opinion.

Does the right to keep and bear arms belong to us as individuals? Does that right extend to private use of arms? Or does the Second Amendment simply authorize the states to arm the members of their militias? The court will have to answer those threshold questions before deciding whether the D.C. gun ban is constitutional. Given the bizarre history of the Miller case, its dubious analysis and inconclusive result, about the only guidance Miller offers is how not to go about setting a Supreme Court precedent.

In Miller, two mobsters, Jack Miller and Frank Layton, were indicted for transporting a sawed-off shotgun across state lines, in violation of the 1934 National Firearms Act. Neither Miller nor Layton was charged with firing the gun or committing any crime involving use of the gun. They were indicted for a technical violation of the registration and tax requirements of the Act.

When the lower court held that the NFA violated the Second Amendment, the U.S. government appealed to the Supreme Court. There, the case took a strange turn. The court gave Miller's counsel, Paul Gutensohn, a mere two weeks to submit his written brief and prepare for a grueling interrogation by the justices. Gutensohn, who was court-appointed and had not been compensated, replied he had received neither the government's brief nor a copy of the trial record. He said he wanted to file a brief, but doubted he could travel all the way to Washington, D.C., for oral argument.

The court then offered Gutensohn a delay until late April. Apparently exasperated, he declined by telegram: "Suggest case be submitted on [government's] brief. Unable to obtain any money from clients to be present and argue case." Gutensohn's proposal - that only the government's brief would inform the court, with no response by the defendants - was arguably malpractice and surely contrary to his clients' interests. He should have asked that new counsel be appointed and that the argument be further delayed if necessary. That would have offered a semblance of due process to Miller and Layton. More important, it would have ensured that the crucial Second Amendment question would get a full briefing and fair hearing before the court. In any event, Miller and Layton had no written brief to support them, and no legal representation at oral argument.

When it was all over, the Supreme Court reversed the lower court's holding that the NFA violated the Second Amendment. The high court's conclusion hinged, not on the defendants' qualification for militia service, but on the particular weapon that was the subject of their indictment. Here's the crucial passage from McReynolds' opinion: "In the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun ... 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." Thus, Miller applies to the type of weapon, not to the question whether the Second Amendment protects all individuals, only members of a militia or just states.

McReynolds' refusal to resolve that key question triggered a debate that lasts to this day. In the end, Miller was sent back to the lower court to determine whether a sawed-off shotgun had military utility. Before a new trial could be conducted, Jack Miller was shot and killed. Frank Layton agreed to a plea bargain and was sentenced to five years on probation.

Fortunately, Heller presents the Supreme Court with another opportunity to declare its allegiance in the battles between the written and "living" Constitutions. The text of the Second Amendment clearly protects the right of "the people" - not states, not militias, but "people" to "keep and bear arms." By striking down the D.C. gun ban, the Supreme Court can affirm that basic principle and restore the Second Amendment to its rightful place of dignity within the Bill of Rights.

Robert A. Levy is a senior fellow at the Cato Institute, co-counsel to Mr. Heller, and co-author of "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom" (Penguin/Sentinel).