Laws, Ordinances & Regulations

Gun Control – The Miller Case

We have to look out for things that aren’t so.  Years ago, the dean I worked for explained that the Second Amendment allowed the National Guard to be armed and was a collective right rather than an individual right.   He confidently cited United States v Miller, and it sounded like he had a strong point.  Since he was also the chair of the local Democrats, I figured it was worth checking the actual case – there are people who sound good, but their facts aren’t always so.  If you want a good read that covers United States v Miller, it’s here.

The case was about a couple bank robbers taking a sawed-off shotgun across state lines, and it’s important to understand a few things about Jackson Miller.  He was a poor shot with a handgun.  He was a career criminal.  And, he was a snitch, an informant, a narc who had rolled over on virtually all of his buddies.  If anyone needed that sawed-off double to enhance his life expectancy, it was Jackson Miller. 

The abstract explains “Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent. In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.”

Brian L Frye University of Kentucky College of Law

Basically, the whole Supreme Court Ruling is based on the actions of Heartsill Ragon, a conniving gun control former congressman and judge.   This excerpt has been sliced for better readability, basically with the intent to get you to read the whole story.

“ JACKSON MILLER AND THE O’MALLEY GANG Jackson “Jack” Miller was a gambler, roadhouse owner, and small-time hood from Claremore, Oklahoma. Born in about 1900, he grew into a hulking, 240-pound thug. By 1921, he was in trouble with the law. His troubles worsened on August 14, 1924, when he accidentally killed H.A. Secrest, a young court reporter from Tulsa, while working as a bouncer at the Oak Cliff Resort near Claremore.  Secrest was plastered and roughing up his date, so Miller decked him, breaking his jaw.  Unfortunately, Secrest died of septicemia a couple of weeks later. Miller turned himself in on September 11, 1924, and immediately posted $5,000 bail. 

But Miller did not hit the major leagues until he joined the O’Malley Gang in 1934. The Depression was the golden age of Midwestern bank robbery, and the O’Malleys executed some of the era’s most daring and successful heists. From 1932 to 1935 they claimed “most of the major bank robberies in the Southwest,” hitting banks in Missouri, Arkansas, Kansas, and Illinois.  Originally known as the Ozark Mountain Boys, the gang consisted of a score of hoods, most of whom met in the Missouri State Penitentiary.

A reporter christened them the O’Malley Gang after the dashing Leo “Irish” O’Malley, notorious for his sensational but remarkably inept kidnapping of August Luer. In fact, O’Malley was only a bit player.  The gang’s real leaders were Dewey Gilmore, Daniel “Dapper Dan” Heady, and George Leonard “Shock” Short.

In the summer of 1934, Short moved to a rented farmhouse outside of Claremore. The rest of the gang soon followed. Heady recruited Miller as a “follow-up man” (lookout) and “wheelman” (getaway driver). Then the O’Malleys got to work.

On September 14, 1934, they hit the McElroy Bank and Trust in downtown Fayetteville, the oldest bank in Arkansas. While Miller and Art Austin circled the block, Gilmore, Heady, Virgil “Red” Melton, and Fred Reese broke into the bank before it opened, shanghaied the employees as they arrived, and made off with about $5,700.28

Then, on December 22, 1934, the O’Malleys robbed two Okemah, Oklahoma banks at the same time, one of the few successes.  They drove a Plymouth and a Ford into Okemah at dawn, wore bandages concealing their faces, and struck shortly before the banks opened. Gilmore, O’Malley, Short, and Russell Land Cooper hit the Okemah National Bank, while Heady, Melton, and Reese hit the First National Bank of Okemah.

Miller “was stationed at the Okemah city limits to guard against possible breakdowns and to pick up members of the gang if their autos failed.” Armed with pistols and machineguns, the O’Malleys bound and gagged the unsuspecting bank employees as they arrived, then forced a bank officer to open the safe. The Okemah National Bank yielded $13,186 and the First National Bank of Okemah yielded $5,491.25.33 The police pursued, to no avail.

Miller returned to Claremore with his $2,100 share of the Okemah job, half of which he kicked back to Gilmore on the sly. But he soon grew restless. On the night of January 11, 1935, he and some friends decided to rob Joe Lewis’s gas station and café in Salina, Oklahoma.

Nineteen-year-old Percy Bolinger was alone behind the counter when Miller, Earnest Tennyson, Ray Anderson, Norman Hoch, Howard Bridwell, Cap Ellis, Bill Meyers, and Blue Culver sauntered in at about 2 a.m. They ordered coffee and started playing the slot machines. When they got unruly and started tilting the machines, Bolinger asked them to leave. The hoods returned a few hours later, accompanied by Jeff Armstrong, who promptly pistol-whipped Bolinger. They stole $23.71 from the till and $120 from four slot machines, which they dumped in Lake Cherokee.

A week later, the police arrested the whole crew in Claremore. It was the beginning of the end for the O’Malleys.  Today, Okemah is best known as Woody Guthrie’s hometown. On May 3, 1935, the O’Malleys hit the City National Bank of Fort Smith, Arkansas, stealing about $22,000.37 It was their last big job.

The police arrested Cooper as a likely suspect and struck gold. Cooper ratted out Gilmore, who was already on the lam. The police caught up with Gilmore on May 22, outside of Lancaster, Texas. Gilmore sang too, fingering the rest of the gang. The police pinched O’Malley and Heady in Kansas City, where they’d rented a swanky pad from James Maroon. O’Malley immediately confessed to the Luer kidnapping and was extradited to Illinois. But the FBI took Heady to Muskogee, Oklahoma, to face federal charges on the Okemah job. A couple of weeks later, the police nabbed Short in Galena, Missouri. And on August 8, they caught up with Melton and Reese at a fishing camp in Taney County, Missouri. The FBI took all three to Muskogee for trial.

In the meantime, federal prosecutors indicted the O’Malleys in the Eastern District of Oklahoma. The Oklahoma trial came first. Federal prosecutors charged Gilmore, Cooper, O’Malley, and Short with robbing the Okemah National Bank and Heady, Melton, and Reese with robbing the National Bank of Okemah. All seven pleaded not guilty and the trial was set for October 16. But on October 2, the United States re-indicted the lot of them, added Jack Miller to both counts, and postponed the trial to November 25.

Miller soon flipped, confessing to his role in the Okemah job and turning state’s evidence. Miller was the government’s ace in the hole. To preserve the surprise, federal prosecutors sequestered him in the county jail until trial. As soon as the trial began, Miller’s lawyer H. Tom Kight announced, “Jack Miller, my client, will testify only on condition that he be granted complete immunity.” Judge Robert L. Williams agreed, on the condition Miller “gives a complete and truthful account of the crime.” |

He did, and then some. “Miller, placed on the witness stand, identified the defendants as coconspirators and testified Dan Heady, charged with participation in the robbery of the First National bank approached him ‘regarding robbery of some banks.’ He testified the plan of robbing the Okemah banks was agreed upon and he was employed as a ‘follow-up man.’ He said he received $2,100 as his share of the loot taken from the banks.” Miller’s erstwhile companions branded him a “squealer,” Cooper even requesting to leave the courtroom while Miller testified.

The trial was over almost as soon as it started. On November 27, the jury convicted the seven defendants on all counts. Williams acquitted Miller as promised, but added an admonishment. “You had a narrow escape this time . . . and you won’t be so lucky again. Get into something honest and quit this gambling business.” Miller immediately returned to Claremore.

Williams set a sentencing date of December 9, 1935. But on December 3, Heady’s wife “Pretty Betty” slipped him a pistol during a visit. Heady used the pistol to break out of prison, escaping with Gilmore, Short, and Cooper, among others. During the jailbreak, Heady shot Muskogee Chief of Detectives Ben Bolton, who died a couple of days later.

A huge posse of Oklahoma police and federal agents, aided by bloodhounds and observers in airplanes, tracked the fugitives to Pushmataha County into the Kiamachi Mountains near Clayton, Oklahoma. On December 5, the posse caught Cooper while he was walking down a country road twelve miles north of Clayton. And the next day, they found Heady and Gilmore in a farmhouse near Weathers, Oklahoma.

When Heady and Gilmore refused to surrender, the police opened fire, killing Heady. Gilmore quickly gave up and led the police to Short, about a mile and a half away. Short was already dying, having been critically burned in an accidental fire the night before, and he drowned when a boat used to evacuate him accidentally capsized.

On December 9, Williams sentenced Gilmore, Cooper, O’Malley, Melton, and Reese to 25 years. Miller was terrified of the fugitive O’Malleys, so the FBI held him in a county jail during the manhunt. They needed their snitch alive for the Arkansas trial.

On January 10, 1936, federal prosecutors charged Dewey Gilmore, Russell Cooper, Otto Jackson, and Floyd Y. Henderson with robbing the McElroy Bank and Trust Company of Fayetteville and the City National Bank of Fort Smith, Arkansas.

At first, all four pleaded not guilty, but Gilmore flipped when Miller implicated him in the Fayetteville job, and the others quickly folded. On January 14, Judge Hiram Heartsill Ragon sentenced Gilmore, Cooper, and Jackson to 25 years, and Smith to 56. Short was very popular in Galena – over 1,000 people attended his funeral – and his death was controversial. The police denied shooting him, but a Galena undertaker insisted he found several buckshot wounds in the corpse. And on February 14, Gilmore and Cooper got another 99 years for murdering Bolton. That was the end of the O’Malleys. Melton, Cooper, Gilmore, and Reese started in Leavenworth and ended up in Alcatraz. O’Malley did his time in Illinois, but soon went mad and died in 1944. And Miller returned to his penny-ante ways.

In 1937, the United States Fidelity and Guarantee Company sued him for the proceeds of the Okemah job, to little effect. Eventually, he fell in with Frank Layton, another small-time Claremore hood. On April 18, 1938, the Arkansas and Oklahoma state police stopped Miller and Layton outside of Siloam Springs, Arkansas, en route from Claremore.  They had an unregistered, short-barreled shotgun in the car and apparently were “making preparation for armed robbery.” So the police arrested them.”

The postscript supports my belief that Miller wasn’t all that good with a pistol:

POSTSCRIPT   In the meantime, Miller resurfaced. On April 3, 1939, Miller, Robert Drake “Major” Taylor, and an unidentified accomplice robbed the Route 66 Club, a Miami, Oklahoma dive. Armed with shotguns, they stole about $80, superficially wounding two bystanders in the process.

Apparently, it was an inside job. Earl “Woodenfoot” Clanton, the uncle of notorious bank robbers Herman and Ed “Newt” Clanton, owned the bar. Taylor was a former associate of Newt Clanton’s, and a peripheral member of the O’Malley Gang. At about 9 a.m. on April 3, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma. T|

he next day, around noon, a farmhand named Fisher discovered Miller’s bulletridden 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 April 6, someone found Miller’s torched 1934 sedan off a dirt road in the Verdigris River bottoms, about four miles southeast of Nowata. It was stripped and still smoldering. A farmer said he saw it burning shortly before noon on April 3.

Taylor was a suspect in the investigation. On October 8, 1939, Sheriff Ellis Summers arrested him in Kermit, Texas, after he got in a “fight with an oil field worker over a dice game.” Ultimately, what happened on April 4 is unclear. Maybe Miller and Taylor disputed the proceeds of the robbery. Maybe Taylor shot Miller for snitching on the O’Malleys. In any case, Oklahoma charged Taylor with murder, but eventually dropped the charges for lack of evidence. Still, he pleaded guilty to armed robbery and got ten years in McAlester.

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. Layton’s probation ended on January 29, 1944.He died in 1967. Both Miller and Layton were buried at Woodlawn Cemetery in Claremore, Oklahoma.”

As I read the article, Judge Heartsill Ragon was a former congressman of the gun control persuasion.  Wikipedia, the bio of Heartsill Ragon sums it up elegantly:

In 1939, Ragon authored an opinion in United States v. Miller, 26 F. Supp. 1002, stating that a federal statute violated the Second Amendment. Ragon was in reality, in favor of the gun control law and was part of an elaborate plan to give the government a sure win when they appealed to the supreme court which they promptly did. Miller, who was a known bank robber, had just testified in court against his whole gang and would have to go into hiding as soon as he was released. Ragon knew that Miller would not pay for an attorney to argue the case at the supreme court and so the government would have a sure win because the other side would not show up. The plan worked perfectly. His opinion was reversed by the United States Supreme Court in United States v. Miller (1939).”


Click the link, and download “The Peculiar Story of United States v Miller”. It really is worth reading, to help understand how the court ruling was achieved.  Miller, died a week and a half before the ruling.

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