But What Would Justice Jackson Say About Heller?

My old friend and St. John’s Lawprof, John Quincy* Barrett, has a thing for Robert H. Jackson, who inched his way from Nuremberg Prosecutor to Solicitor General to Attorney General to Supreme Court Justice.  And because of his enthusiasm, I’ve become quite the admirer of Jackson as well, and often ask myself, “but what would Justice Jackson think about this?”

Since finding his way from the Department of Justice to the classroom, John Q. has focused his scholarly attention on Jackson, and has given me (and others on his Jackson List) a fine appreciation of Justice Jackson’s contributions.  And lest you think he’s jaded by his government service, he clerked for Third Circuit Judge A. Leon Higginbotham, Jr. in his formative years, so John Q. can’t be all bad.

But aside from Jackson being a pretty cool guy, why should we care what he would have thought about Heller?  Jackson argued Miller v. U.S. in 1939, the Supreme Court’s last word on the Second Amendment until Heller.  What makes this particularly fascinating is how the government’s position in Miller, serving interests that at the time might be viewed quite favorably from a conservative perspective, have flipped on its head today. 

While most in the academy think us blawgers in the Practical Blawgosphere have neither knowledge nor appreciation of history and precedent, and are only concerned with how a decision impacts our clients in the trenches, this will show how far off base you are.  We care a great deal about scholarly concerns.  We just don’t want you lawprofs to know and get swelled heads.

So here’s John Q.’s take:



During his country boyhood in western Pennsylvania and western New York State, Robert Jackson was very familiar with guns—his later recollection was that every house had one.  His uncle, Dan Houghwot, a careful man, took young Robert hunting and taught him to handle guns safely.  As a high school boy in Frewsburg, New York, Robert often went hiking on his own, usually carrying sandwiches fixed by his mother and sometimes carrying a not-too-heavy “kid’s rifle.”  His pleasure was the hiking, but if he saw something to shoot at—usually woodchucks or groundhogs—he did.  Jackson continued to be a real outdoorsman, a gun owner and occasionally a hunter throughout his life.  One of his pistols is now a museum holding in his adult hometown of Jamestown, New York.



Jackson also was familiar with guns as a constitutional litigator in the Supreme Court of the United States and as a federal law enforcement officer.  In 1939, when Jackson was Solicitor General of the United States, his name was on the top of the government’s brief (click here for a retyped version that is, as far as I know, accurate), and Jackson probably was present in the Supreme Court when his colleague and close friend Gordon Dean argued and won a unanimous decision, Miller v. United States, upholding the constitutionality of a federal prosecution under the National Firearms Act (1934) for transporting an unregistered, unauthorized sawed-off shotgun across state lines.  The Miller Court, adopting Jackson’s written arguments and (I assume) Dean’s oral arguments on behalf of the United States, noted the absence of evidence that possession of such a shotgun was reasonably related “to the preservation or efficiency of a well regulated militia” and, on that basis, the Court declined to “say that the Second Amendment guarantees the right to keep and bear such an instrument.”



A year later, Jackson was Attorney General of the United States.  That spring, he officially transmitted to the Congress draft legislation that would have, in the interests of both international security and national law enforcement, required the registration of all firearms in the United States.  Attorney General Jackson transmitted the proposed bill to the Speaker of the House, Rep. William B. Bankhead (D.-AL), beneath this May 29, 1940, transmittal letter:


My Dear Mr. Speaker:



I desire to recommend legislation to require registration of all firearms in the United States and a record of their transfers, accompanied by the imposition of a nominal tax on each transfer.



Such a step would be of great importance in the interests of national defense, as it would hamper the possible accumulation of firearms on the part of subversive groups.  It is also of outstanding importance in the enforcement of the criminal law.

It is only too well known to require detailed depicting that Federal, state and local law enforcement officers have frequently been killed by desperate criminals who equip themselves with firearms and have no hesitancy to use them in an endeavor to escape apprehension.


On a number of occasions in recent years members of the personnel of the Federal Bureau of Investigation met their death in this manner while unflinchingly performing their hazardous duties.


It is to be particularly noted that the legislation, the enactment of which I recommend, would in no wise improperly limit the freedom of action of peaceful, law-abiding persons.


The contemplated legislation would not hamper or hinder any person from purchasing or possessing a firearm.    It would merely require him to register the firearm and to record any transfer of the weapon.


It would interfere with personal liberty no more than is the case with the requirement that is imposed in every state in respect to registration of automobiles.


It is equally important that death dealing weapons be registered so that a record of the traffic in them may be maintained for purposes of national defense and for enforcement of the criminal law.


A proposed bill drafted in this department embodying the foregoing recommendations is enclosed herewith.  I recommend its enactment and hope that favorable action can be taken in respect to it at this session of the Congress.


This proposal for mandatory federal gun registration did not pass.  Indeed, an October 1941 law that granted President Roosevelt legal authority to requisition private property for defense of the United States specifically disclaimed any interpretation that it conferred such authority and said the requisition authority should not be construed “to impair or infringe in any manner the right of any individual to keep or bear arms….”


Did Jackson interpret the Second Amendment to confer such an individual right?  The evidence I know of is inconclusive.  His own gun use and gun ownership were instances of behavior, not constitutional exegesis … but in many people the former does inform and evidence the latter.  Jackson’s constitutional argument in the government’s Miller brief was nuanced, not categorical—it did not argue that the Second Amendment protects guns only in the context of militia service and does not also encompass individual rights.  And the 1940 Jackson proposal seeking national gun registration legislation sought only that; he did not seek a law banning gun possession.


All of this is relevant, of course, to yesterday’s Supreme Court decision, District of Columbia v. Heller (click here), which recognized in the Second Amendment an individual right to possess a firearm unconnected with militia service, and to use that weapon for lawful purposes such as self-defense within the home.



Heller itself recognizes limits on individual gun rights under the Second Amendment and displays some sensitivity to the practical concerns that surround guns.  It can be hoped, going forward, that this jurisprudence and future explications of this individual right will remember and embody the distinction between gun savvy and gun crazy.  Robert Jackson’s personal behavior with guns and his legal work on gun control issues did that.  His Uncle Dan raised him that way.


Having enjoyed John Q.’s “Jackson List” emails for years, I commend his work to everyone and urge you to sign up at the Jackson List Archives, where you can also check out John Q.’s prior posts on Jackson.  And in case you ever make it onto “Jeopardy!”, Robert Jackson happens to be the last Supreme Court Justice who didn’t graduate law school.  Which could explain why he has so much to offer.

* John Q.’s real middle name is Quin, but my buddy Kenny and I started calling him John Quincy, later shortened to John Q., because of the remarkably similar demeanor and mode of attire to our 6th President, and I can see no reason to resort to slavish accuracy now.

John Quincy Adams

See what I mean?

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