Column on Heller and the conflict within DoJ

"Opposing counsel Alan Gura, making his first appearance before the high court, does not have the confidence of gun-ownership advocates (who tried to replace him with former solicitor general Ted Olson)."

Well, I for one certainly do have confidence in Alan Gura, who has done a great job so far. And just _who_ tried to replace him?

I recall hearing this a while back and being shocked and outraged, but can't recall where/when.

This also being discussed at Volokh:

http://www.volokh.com/posts/1205416513.shtml

And at Scotusblog:

http://www.scotusblog.com/wp/uncategorized/novak-clement-cheney-and-the-gun-case/

FWIW, I checked the WaPo comments section this morning...and frankly not worth anyone's time to consult.

Apparently the DoJ is having a hard time with the meaning of the Second Amendment. There is a simple resolution to this problem, and all it requires is that the federal government entirely remove itself from the controversy.

We'll take it from here. Thanks!

If only someone possessed the foresight to avoid these conflicts by barring the federal government from interfering with the Citizens' most basic liberties.

I was at two long moots of Gura, by some of the best minds on the 2nd Amendment. And, I have seen a transcript of another of Gura's moots, where the mooters were perhaps less intensely read on the 2nd Amendment, but certainly heavy-league litigators with Supreme Court experience.

Gura held his own at all three moots, and I didn't hear any of the RKBA academic heavy-weights who mooted him suggest that Gura is not up to handling this. The man knows his stuff. Some RKBAers may say, "Stress this instead of that," but none who heard him argue would suggest that he doesn't know the issue, and the cases, and the facts. No one threw anything at Gura that he could not handle.

Way back when, some of the RKBA academics feared going to the Supreme Court, and, yes, there was a difference of opinion as the "old turks" argued for standing by the fence and holding the line. However, NEVER have I hear any suggestion that Ted Olson be brought in to do the oral argument, not by any of the many people with whom I maintain contact. Among other things, as Hardy says, this case belongs to Alan Gura, Bob Levy, and Clark Neily. It's THEIR case.

There was, of course, the indication that Tribe might have liked to have argued the case, and that indication was from Tribe. However, his kind suggestion was declined by Gura and co-counsels, and then Tribe went off to pout and nurse his bruised ego. Then he produced his quick-write one-page piece for the Wall Street Journal and apparently sent an advance copy to the lawyers putting together D.C.'s reply brief.

Ted Olson argue the case? No, from what I've seen or heard, Ted Olson has done his level best to stay as far away from this case as possible.

The SG asked for and was granted 15 minutes for oral arguments. Is it possible that Bush and Cheney called him on the carpet and told him to go before the Court and explain the Administration's actual position? Probably just wishful thinking on my part.

I have read all the amici briefs for respondent. It is apparent that Mr. Gura had a good plan. As a very interested layman, I think his work is awesome. DC is going to be forced to resort to beating on the table.

With all due respect Dave, I think you give Clement a pass he may not deserve. I suspect the Weebees at Justice told him that FOR THE LOVE OF GOD MAN, THERE IS A MACHINE GUN BAN AT STAKE, and that he and Chimpy completely agreed.

I don't see the significance of the machine gun ban. People weren't committing crimes with them before the ban and it isn't like they are prosecuting enormous numbers of people under 922(o) anyway.

It's doubly retarded when you remember that 99.9 percent of the people that they currently prosecute under 922(o) they could still prosecute under the tax code provisions of the NFA just like they do with all the other NFA possession cases. In fact, up until the court in Rock Island Armory made them stop, the ATF used to prosecute people under both 922(o) and the tax code whenever they caught them with a machine gun.

Jim, The issue with the machine gun ban is political and not prosecutorial. While I am one of the folks who believe in absolute parity between the police, the military and the citizens in terms of the types and classes of arms they all may keep and bear, I strongly suspect that many other Americans don't feel that way. And I use the word "feel" very precisely. They couldn't articulate why, but they have been conditioned by the popular media to be afraid of guns, and of machine guns particularly. Srs. Arbusto and Cheney, want the Republican Party positioned squarely in the soft, fuzzy center on this issue, for purposes of keeping the all important moderates (read that as "swing voters") in their camp. And that is why a radical (I would call it Constitutional, but I quibble [/s]) reduction in gun laws driven by a Supreme Court decision (much like Brown v, Board of Education and desegregation) is not what they want.

In defense of Cheney, he has a very pro-gun record. He was one of the few congressmen of his time to vote against the nonsense Undetectable Gun and Teflon bullet bans. I suspect that is why he joined the brief of the Congress.

922(o) is also significant because it is the only time that the Congress has ever completely banned the manufacture of a class of firearms based upon operation rather than cosmetics.