Saturday, April 28, 2007

Frye on the 2nd Amendment and the Peculiar Story of U.S. v. Miller

"On April 18, 1938, the Siloam Springs police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers," Brian L. Frye writes in a new paper on SSRN. "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 doesn’t guarantee the right to keep and bear a sawed-off shotgun."

"Sixty years later, Miller remains the only Supreme Court opinion construing the Second Amendment. But courts struggle to decipher its holding." Frye's paper is The Peculiar Story of United States v. Miller. A recent NYU law school graduate, the author can be contacted via his SSRN page. The abstract follows:

This article provides a comprehensive history and interpretation of United States v. Miller, the only Supreme Court case construing the Second Amendment. It presents evidence Miller was a test case designed by the government to test the constitutionality of federal gun control. It shows the holding in Miller is narrower than generally assumed. It argues Miller adopts neither the individual nor the collective right theory of the Second Amendment. It suggests the Supreme Court's pragmatic, deferential approach in Miller remains appropriate.
The photo, courtesy of Brian Frye, is of Jack Miller.

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