Bank robber Jack Miller was the plaintiff in 1939 decision
July 1, 2008

by Joseph P. Tartaro
Executive Editor

While this issue of Gun Week is dated July 1, it goes to press on June 16 and should be in the mail to subscribers late on June 17. Thus, like everyone else on both sides of the great gun debate, we are breathlessly awaiting the Supreme Court’s decision in District of Columbia vs. Dick Anthony Heller, a decision that could come at any moment and may even be handed down as this issue is printed.

This Second Amendment case started out as Parker, et al, vs. District of Columbia. The name of the case changed in 2007 when the city appealed to the nation’s highest court in an attempt to salvage their gun ban and their claim that there is no individual right to arms. The name changed because of the six plaintiffs who originally challenged the DC law, the court ruled that only one had standing. That was Heller, a private security guard who resides in Washington and carries a gun while he’s working but was denied an application for a firearm in his home.

From the time the court agreed to review the Heller decision much was made in news stories and commentaries that it would be the first time in almost 70 years that the high court had agreed to hear a Second Amendment case. In fact, the last clear previous case in which the court addressed the Second Amendment was the 1939 Miller case. I’ll have a lot more to say about the Miller case, but first it is worth making a distinction between cases.

The 1939 Miller case—there is also a different, gun-related 19th century Miller decision—may be ignored by the current Supreme Court when it rules in Heller. However, it could also put a small time Oklahoma hood back into the national spotlight. Make no mistake about it. Miller—like so many other criminals whose names adorn key Supreme Court rulings (Miranda, Escobedo and others come to mind) was a bad guy trying to get away with something by pleading a Constitutional right. Heller on the other hand is an upstanding citizen who sued because he was denied a Constitutional right.

Perhaps while we wait the court’s ruling in Heller, it might be worthwhile to review the history of the Miller case about which many readers may not be totally familiar. The confusing 1939 Miller decision was an important case law citation for the anti-gunners because they used it to argue that the Second Amendment right only applied to the state’s authority to arm militias and required membership in such a militia.

To simplify the background of the 1939 Miller case, I rely here mainly on article written by Scott Thompson which first appeared on Feb. 1, 2008—before the Mar. 18 oral arguments in the Heller case. Thompson is a news anchor/reporter for KOTV in Tulsa, OK, which has a geographic connection to the decision, because Miller was an Oklahoma boy. Entitled “An Oklahoma Gangster’s Impact on US Gun Laws,” Thompson relied on interviews with some historians and law professors in Oklahoma.

“During the Great Depression, the only thing more common than dust storms in Oklahoma may have been criminal legends,” Thompson began. “Charles ‘Pretty Boy’ Floyd was the subject of a song written by Woody Guthrie. Hollywood immortalized Clyde Barrow and Bonnie Parker in the movie ‘Bonnie and Clyde.’ Machine Gun Kelly earned the FBI’s title of Public Enemy Number 1. But none of them can claim the distinction Claremore’s (OK) Jack Miller can.”

“Yes, this obscure figure in Oklahoma history that people know very little about was a major figure in a US Supreme Court case,” said author and historian R.D. Morgan, according to Thompson. Morgan writes non-fiction books about Oklahoma outlaws in the 20s and 30s, and the lawmen who tracked them down. He says Jack Miller’s claim to fame is a surprising one.

“I’m sure today he would be just absolutely shocked that he would be famous or infamous for a Supreme Court ruling,” Morgan told Thompson.

Morgan says Jackson “Jack” Miller “was a flamboyant character, drank too much and certainly was involved in the bootlegging trade for a while.” He was a big talker. So how did a con man from Claremore end up with his name on a landmark Supreme Court decision?

The journey began when he joined the Irish O’Malley gang, and started carrying a sawed-off shotgun. The O’Malley gang was the last of the big super gangs of the 1930s; they had robbed over a dozen banks. Morgan recalled that Miller liked to carry his shotgun while working as the gang’s lookout and getaway driver. Their crowning achievement came in 1934, when they robbed the Okemah National Bank and the 1st National Bank of Okemah simultaneously.

Of course, a double bank robbery is a rare occurrence, especially a successful one, Morgan noted, suggesting it was an historic heist. The feds eventually tracked down every member of the O’Malley gang, and granted Miller immunity so he’d testify against them. Jack Miller’s name ended up in the US Supreme Court thanks to his sawed-off shotgun. He and a friend were arrested for transporting it across state lines, after driving from Claremore to Arkansas.

Miller’s defense was that the then new National Firearms Act of 1934 (NFA) was unconstitutional because it violated the Second Amendment right to keep and bear arms.

Congress had passed the National Firearms Act to target gangsters and the arms they were allegedly using, including sawed-off shotguns and suppressors. The justification for the 1934 law was very similar to that used by the Clinton Administration and the Congress which later voted in the 1994 “assault weapons” act banning certain semi-automatic rifles and newly manufactured ammunition feeding devices of over 10 rounds.

The NFA required a $200 tax stamp on each Tommy gun, machinegun, sawed-off shotgun, and any other weapon or accessory listed in the law, plus a background check and approval of the chief law enforcement officer. It’s interesting that after over 100 years, the transfer tax is still $200, a huge amount of money back in the 1930s when you could buy a new truck for about $700.

However, since Miller and his buddy hadn’t bothered to buy one of those stamps, they used the Second Amendment defense and challenged the NFA. The lower court ruled in Miller’s favor and the feds appealed to the Supreme Court. The Supremes overruled the lower court, voting unanimously to uphold the NFA, but the decision has confused people every since.

O’Shea told Thompson that many legal experts are surprised the US v. Miller ruling has held up so long. It was written by Justice James Clark McReynolds, one of the least popular justices in history, a man not known for writing thoughtful opinions.

Miller’s attorney didn’t bother going to Washington or to file a brief for his client. Nor did any gun-related organization at the time argue for Miller.

Before the case could be sent back to the lower court, Miller’s bullet-riddled body turned up on the bank of Spencer Creek in Rogers County. He apparently died at the hands of a fellow robber.

For the last seven decades, Miller has rested in a grave in Claremore, forgotten by just about everyone but legal scholars and historians. One of those historians believes that would be okay with the shotgun-toting getaway driver and snitch.

“The law was something I’m certain Jack Miller never thought much about, except how to get out of jail,” said Morgan.
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