Transcript of Heller argument

Alan Gura was right! As a judge at one of the moot courts said, "If this comes down to machine guns in the school yard, we lose!"

The folks sending unkind emails to Alan Gura when they should have been sending him praise need their butts kicked.

The most important thing here was to get the Supreme Court to say that the 2nd Amendment is about an INDIVIDUAL right. Build from there, but get the foundation in place first, and the 2nd being an individual right is the absolute foundation.

Alan Gura, Bob Levy, and Clark Neily did something absolutely amazing here.

The legal team and volunteers did a fantastic job with the coordinated briefs and the arguments. Gura outdid his (much more experienced!) competition.

Justice Roberts always looks for the simplest resolution, the most direct path to a decision. Even with a clean slate decision, he'll want to keep it narrow. No is not the time to worry about the frosting, get the cake.

Thanks to you and to all the others that did so well!

I think a machine gun case will come much sooner then ten years.

Spot on, David. Trying to convince your average judge, Justice, or even citizen that the 2nd Amendment protects an absolute right to buy a belt-fed or auto cannon down at the Jiffy Stop will get us nothing but humiliating defeat.

God bless you (and Gura and Levy) for your long-term commitment to and diligent work on this case and cause.

While I wish it were different (such as the Second Amendment being taken at face value, without Justices asking "how much can we do before it's called a violation", I doubt we'll EVER get to unregulated machineguns. The BEST we can hope for is reforming the licensing process and eliminating the '86 ban on new manufacture.

What scares me is that some twit WILL try a challenge on NFA in the near future.

Which will not only fail, it will poison the well both for NFA and for all other Second Amendment issues.

Can experienced commentator explain how a good
(individual rights) ruling in Heller will interact
with the ROCK ISLAND ARMORY case?

When I spoke with Gura about a month ago, he specifically mentioned the AR15 platform was the most commonly use weapon for civilian competition. Also it is the most commonly used weapon for infantry use.

As many others have pointed out, the machine gun issue is largely a straw man. The other side can read and understand the 2nd, but simply does not like it. So they build up crazy argument about the "exceptional, exceptional" lethality, and the rareness of the M16 in civilian hands. The truth is you would be just as dead if he was shot multiple times in semi-auto mode or in full-auto mode. There is no difference in lethality. The issue of rarity is only due to the NFA tax, and then the '86 ban. If neither of these was in place, M16s would be common in civilian hands.

There is nothing to the straw man, except that the other side thinks Mr. Straw is a very important member of public. Just like the predictions that the Shall Issue change in Florida would result in blood in the streets, the prediction that machine guns in civilian hands will case blood in the streets is totally bogus.

Like every other prediction of calamity, bedlam and wide-spread murder, this one is nonsense. Some abstract change in law in Washington is not going to make my neighbors become crazed murderers.

In the rest of the world, the militia has full-auto AKs. Our immediate enemies in combat have those same weapons. It is not hard to argue that the militia members in the US should be required to have full-auto M16s.

With the greatest respect for the case up to this point and to Dave Hardy who I think does and amazing job... I have to challenge you one this posting.

1. I agree with you that it's a shame the issue of mg even came up, it seems to be way outside the scope of questions.

2. Someone will have to explain to me: If one function of the 2nd amendment is to be the people acting as a counterbalance to gov't tyranny; how can it be that the standard arm of the government forces can be restricted from civilian ownership?

3. I think the whole mg argument is a straw man anyway, it will get it's day in court, I'm sure. I think the reason some people are upset (fairly or unfairly) is because of the following statement (exact quote from the transcript):

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.

Who decides which arms are appropriate for civilian use? The government.

You can have all the theoretical individual rights you want, but this statement seems to have very dangerous practical implications of actually being able to possess arms that would be effective self defense or anti-tyrannical tools. I am not just talking about mg's here either, if the government gets to decide which arms are "appropriate for civilian use," then I would hate to see the list of "appropriate" firearms that a Clinton or Obama would put together.

Again, I don't want to be overly pessimistic here, because I am going to assume Mr. Gura was saying what he needed to say to win the case and the SCOTUS probably isn't going to issue a very broad ruling anyway. It's just very frustrating to hear a obviously pro-gun lawyer say the government should be able to ban any gun that's not "appropriate."

Mr. Hardy, thanks very much for your efforts. They are much appreciated.

Quite simply, the 2A *does* protect an "absolute right to buy a belt-fed or auto cannon down at the Jiffy Stop".

The sooner we get the courts to stop the infringement surrounding fully auto, the better. Anything less is complete and utter defeat.

Let me start by saying I greatly appreciate what Gura and all involved have accomplished (Mr Hardy).

But....

Couldn't Gura have just said "The MG issue will be for other cases to decide. The issue here is a complete ban"?

Instead he threw the MG issue under the bus.

I also would've liked to see Gura counter some of Breyer' death statistics with some stats pertaining to the much greater DEFENSIVE use of firearms.

“Who decides which arms are appropriate for civilian use? The government.”

It doesn’t matter what Gura said, none of that is relevant to the case before the court, and none of what he said about machine guns will appear in the ruling. His goal, I think, was to keep the Justices on track with what this particular case is supposed to decide. Once the SCOTUS rules that the 2nd defines an individual right, then we can look at the peripheral issues like machine guns and so-called assault weapon bans.

Seriously, anyone who is thinking there will be a sudden and sweeping change in firearms laws after their ruling this summer is deluded. I also expect DC is right now planning on how to find some sneaky way to keep their ban no matter what the SCOTUS says, either by banning ammo or taxing it, micro-stamping firing pin schemes, etc.

Hey, folks? The MG issue wasn't before the Court. Arguing that it was -- and that a decent decision would put it into play -- would, in the opinion of everybody I know who knows more than diddly about this stuff, turn a likely winner into a certain loser.

That's a great way to get a defeat to rally the troops from; fortunately, more sensible people were in charge -- and thanks to all of them -- and they'd rather have a victory to build on.

Gura did a great job; so did everybody who helped him prep.

It's hard to keep focused and even harder to realize small steps are needed. First the need is to get the second ammendment right recognized as an individual right ... then ... then we can talk strategy what comes next.

Great job to all that helped, and especially you David for doing the yeoman's work keep us informed as well.

It doesn't really matter one way or another what Gura said about machine guns in the Heller oral argument.

A machine gun case with a reasonable chance of success should come after many years of favorable precedents and will have a different set of facts and circumstances, such as a challenge to only 922(o) as preventing the ability of a policeman and guardsman to privately own a fully automatic M16. What Gura and others said in oral argument will not matter much. What will matter is what is in the decision, which is what sets precedent and illuminates future direction.

Gura had only 30 minutes to speak. None of the Justices demonstrated any familiarity with firearms (except maybe Scalia and he not much) and there wasn't time to conduct classes on firearms (or for that matter, statistical analysis - which one of the Justices clearly didn't understand, either).

We should take a lesson from our enemies, and win our battles one step at a time. First, we get the Second Article of Amendment to be declared an individual right, and strict scrutiny applies. Then, incorporation under the Fourteenth Article of Amendment. Then we go after the gun banners, when there isn't a legal rock for them to hide under.

Man, reading some of these comments...wow! Do I think Alan could have done a better job? Yep, he did start to get circular and that really bothers me on a basic level. Did he blow the case? Nope, nada, no-way. Is this the atomic bomb of the 2A? No, it is not, there will be tons of opportunities in 2A litigation, especially if the DC ban is overturned (my guess 5-4). This will be a good start to a longer process. I sure hope that Samuel was joking when he said this "The sooner we get the courts to stop the infringement surrounding fully auto, the better. Anything less is complete and utter defeat." If that would have been the position that Gura staked out, it would be 9-0 upholding of the DC Ban.

I think Mr. Gura did a good job. He was not perfect, which I can say from my comfy chair after hearing the whole thing played through my TV. All the "but he should have said" stuff, while it may be correct, serves no good purpose. It's just plain ol' Monday morning quarterbacking.

Thanks to all that helped with this case. The pressure was on and you delivered.

The mg ban can be fixed quite easily. There are more than 1 million pre-86 mg's in private hands. Texas has the most, followed by California. Since the beginning of registration in 1934 exactly ONE registered mg has been used in a crime. And if the DC handgun ban (a ban on one type of weapon) is overturned, I can see someone sending in $200 to convert an AR 15 into a full auto and being denied by BATF. Instant standing. And the "reasonable regulation" is already in place. All that needs to happen is for the ban on registration of NEW mg's to be tossed out. Of course all those people that plunked down $60K for a M60 will be displeased, but someone has to make the sausage.

6-3 in favor of an individual right.

And DC will restrict gun STORES by placing a "5 mile" limit between gun stores and schools or some such. You have to buy handguns in the state you live in. I don't think there are any gun stores in DC.

Joe Olson and I were out drinking with Alan Gura last night, and he was getting a constant stream of emails from machinegun owners on his pda, denouncing his statement that full auto arms' possession might not be protected by the 2nd Amendment.

I want to be the first to welcome Mr. Gura to the wonderful world of pro-gun activism, where if he had the entire team of petitioners dangling over a shark tank with a copy of the National Firearms Act sticking out of their back pockets, there would still be yahoos screaming that the sharks don't look hungry enough.

Plus 10,000 for Sebastian's comment.

"Someone will have to explain to me: If one function of the 2nd amendment is to be the people acting as a counterbalance to gov't tyranny; how can it be that the standard arm of the government forces can be restricted from civilian ownership?"

Look, guys, here's the deal with the insurrectionist argument: you can't seriously expect the organs of the state the go out of their way to protect a legal right to violently overthrow the organs of the state. The world does not work that way.

Judge: Why dod you need a constitutional right to an unregistered machine gun, sir?

Petitioner: So I can blow you the fuck away with a machine gun when I get pissed off at the government, Judge.

Seriously. In simplest terms, that is the insurrectionist argument. And do you honestly think more than a tiny handful of judges will respond positively to that line of argument? Kozinski is the very, very rare exception.

Revolution is by definition an extralegal remedy. The tools of revolution will sometimes have to be extralegal, too. That's to be expected. And it's not that big a deal. If you really planned to start whacking government agents, IEDs and machine guns wouldn't be that hard to make. And since you'd already be planning to commit capital offenses, what would be the big deal about a few extra felonies?

I was surprised by all the MG discussion since it's not actually relevant to this case.

I was even more surprised that pretty much everyone kept trying to agree that "a ban one machine guns is reasonable" by stating in various ways that machine guns had to be one of the most protected classes of 'arms'.

It did appear that the Oral Arguments were - at least in this case - primarily a venue for grandstanding and some light entertainment (at least for those making the monkeys dance for them). Assuming that their making / made their arguments at least in part on the written briefs and not just on their 'normal' leanings that should be good for our side.

Someone on another blog posited that it could be 9-0 in favor of an Individual Right with the 5-4 / 6-3 split coming on what that means. The basic theory is that none of the Justices wants to look like an idiot and there are very few ways to argue the Collective Rights side without doing so.

As I noted in my comment to the previous thread, I thought Mr. Gura did a good job. It was just (from reading the transcript) that he was prepared to argue against the Collective Rights stance and got hit with "ok, it's an Individual Right but a ban's not infrigement."

Continued thanks and kudos to Mr. Gura for everything he's done for us!

A solid Individual Rights ruling cuts the opposition off at the knees.

The sooner we get the courts to stop the infringement surrounding fully auto, the better. Anything less is complete and utter defeat.

And how do you propose we accomplish this?

[I]I want to be the first to welcome Mr. Gura to the wonderful world of pro-gun activism, where if he had the entire team of petitioners dangling over a shark tank with a copy of the National Firearms Act sticking out of their back pockets, there would still be yahoos screaming that the sharks don't look hungry enough.[/I]

This is funny but it is also very true as I could see myself saying this.

While many of us will monday morning quarterback, we are grateful for the amount of time and effort Alan, Bob, Clark and the amici put into preparing and arguing this case. Could a few questions been answered differently? Sure but I think the team did the best that they could do especially with a hostile media and a hostile administration. Are machine guns protected by the second amendment...you're damn skippy they are but that is what the media/DC/SG wanted the respondent's counsel to say. That would make sensational headlines..."SCOTUS decision might allow machine guns to be sold to felons and children!!" Alan played it smart by keeping the focus on the handgun ban and not giving the media any headlines in which they could put pressure on SCOTUS. I know CJ Roberts likes to keep decisions narrow but assuming they affirm the lower courts ruling, I hope they mention that strict scrutiny should be the standard for review. There isn't much SCOTUS precedent that will be effected and if they don't, politicans will play the same game for the next 70 years as they did with Miller.

Hey, let's play !

The sooner we get the courts to stop the infringement surrounding RPGs, the better. Anything less is complete and utter defeat.

The sooner we get the courts to stop the infringement surrounding pickup-towable AAA, the better. Anything less is complete and utter defeat.

Boy, may as well wrap that white towel on a stick and walk down to the local Brady office.

IF DC bans gun stores, is that a de facto ban on handguns because the holder of a DC driver’s license cannot buy a handgun “out of state?”

I put up a long post on this point over at my place. Executive Summary:
1. Heinlein’s dictum has come true in reverse: an unarmed society is a rude society. If the Supreme Court really did invalidate the entire gun-control legal structure at a single stroke, blood really would run in the streets.

2. I have several times now been moved to email people who are, in fact, coming to their senses, the following apology: “Welcome to the Second Amendment barricades! Be sure to wear you helmet and vest at all times, and mind the tripwires.”

[My original full length comment has apparently been lost in the moderation queue; my apologies if this comes out as a double post.]

Oh snap!

This time my comment went through with no moderation at all; that probably means I submitted the lost one to the wrong blog.

Apologies again to Mr. Hardy and the person moderating my wayward post.

Sebastian, you forgot to mention the people who will complain that the sharks don't have full-auto laser beams on their heads :-)

Thank you, Mr Hardy. Thank you, Mr Gura.

An individual rights decision from the SCOTUS will be a large nibble toward consuming the entire pound of cheese and all the concerns over rights to own MGs and other exotic arms will wash out over time. But, we must expect some interesting times in the near future.

The 13th Amendment did not solve all black Americans' problems. After the ratification of the 13th Amendment black Americans were subjected to many new draconian regulations and laws that weren't unreasonable as far as the various legislatures who passed the laws were concerned. We can expect the same sort of reasonableness from the typical knee-jerk reactions of our various state and federal legislatures, city councils, and state and federal agencies.

There will be as much of a government scramble to figure out ways around a SCOTUS individual rights decision as those of you who are scrambling to line up in favor of making sure your favorite firearm falls favorably within the court's decision.

Hopefully, cooler heads will prevail and patience and thoughtfulness will win out over haste and stupidity. Historically, that has not been the path followed and unfortunately will probably not happen in the instant case. We can always hope.

I'm proud to say I had the wisdom not to be one of the emailers.

We can always come back to the machine gun issue later. Better we hatch this egg first.

And I think Gura did as good a job as any of us could with hostile supreme court justices (breyer mostly). I'm glad he batted aside the machine gun thing and kept this focused on the DC regulations.

What impressed me the most was the clever bit where he deflected the Massachusetts fire regulation question by pointing out that firearms didn't include pistols. And it completely worked.

I'd also like to add that I feel ashamed that Gura has to endure abuse from the people whose rights he is defending with his effective advocacy.

"I think a machine gun case will come much sooner then ten years."

I really hope not, because these cases take time to properly prepare and require a receptive appellate audience. I'm sure we could LOSE a machine gun case in less than ten years and I'm quite certain a least a few dumbasses will try.

Instead, let's wait to see what Heller says and then lets see how the lower courts respond to Heller. They may or may not be cooperative. I think it will be wise to wait until the time is right before charging into the fray.

In keeping his necessary focus and doing the one thing he had to do---not lose his case---Gura reminds me of another much criticized man who did what he had to do even if it didn't result in a grand and smashing victory: Admiral Jellicoe at the Battle of Jutland.

In WWI he was the British Grand Fleet commander charged with keeping the German fleet bottled up, and he did so in the face of considerable difficulties. Churchill, then the First Lord of the Admiralty, said that Jellicoe was "the only man who could lose the War in an afternoon".

Let's be thankful we'll likely will get our Brown v. Board of Education (or whatever) and accept that we still have a long slog ahead ahead of us.

- Harold

Posted by: Jim W at March 19, 2008 03:45 PM
I'd also like to add that I feel ashamed that Gura has to endure abuse from the people whose rights he is defending with his effective advocacy.

Plus 10,000 to this statement.

Please let Alan Gura know that he drinks for free on me in Southern California.

That will be two of use buying him, Bob or Clark enough to tilt the tower...:-) And as far as I am concerened, that offer extends to Dave H. also...

Mark

We win this, and Gura and Levy will probably never pay for a drink again. Kind of like being a Medal of Honor winner.

Alan Gura gets free beer and barcecue from me in Austin :-)

"none of what he said about machine guns will appear in the ruling. "

That is true but do you really want the soundbite from Gura saying MGs are not a lineal descendent being used in future challenges? It will be, you can take that to the bank. The headline will read, "MG ban challeneged even though landmark case lawyer said they should be illegal!" He loses nothing by claiming it is lineal, the SG already had. That is why I'm upset, it was a simple thing that doesn't hurt his case at all and sets himself/other lawyers up for the future. Much like the after trial remarks I've commented on before. Set yourself up for sucess in the future, every word in front of a mic counts.

"I'd also like to add that I feel ashamed that Gura has to endure abuse from the people whose rights he is defending with his effective advocacy. "

Not to sound like a prat but he is only defending one single class of people with his case. He is clearly not working on rights for other classes of gun owners. There is nothing wrong with that but it is an important distinction.

I've read the entire transcript, and I just want to extend thanks to Alan Gura and his team.

Regarding purchase of handguns by DC residents, I foresee something coming out of Congress to allow handgun transfers from MD and VA for DC residents.

"That is true but do you really want the soundbite from Gura saying MGs are not a lineal descendent being used in future challenges? It will be, you can take that to the bank. The headline will read, 'MG ban challeneged even though landmark case lawyer said they should be illegal!'"

Unlikely, and even if that is the headline it won't affect the court. You don't understand how lawyering works. Lawyers take flat-out contradictory positions from one case to the next, all the time, and judges expect and understand this. What Gura said in this case means absolutely nothing except in the context of this case. It's what the Court says in its opinion -- and only what the Court says in its opinion -- that will have continuing meaning once this case is decided. That's how precedent works. Gura's statements at oral argument in Heller have absolutely no precedential value. Period.

Posted by: Deavis at March 19, 2008 06:11 PM
Not to sound like a prat but he is only defending one single class of people with his case. He is clearly not working on rights for other classes of gun owners. There is nothing wrong with that but it is an important distinction.

Not to sound supercilious, but Alan Gura was not defending you, nor was he defending someone that wished to register a post-'86 NFA firearm, or a whole "class" of persons wishing to do likewise. He was representing one man that wishes to have a simple revolver in his home, for the limited purpose of defense against common criminals.

Alan Gura was doing his job and representing his client. His job was to get DCs ban on ordinary handguns overturned. It is unreasonable to demand more than that of him.

I would like to thank Mr. Gura and his team for a masterful job of presenting this critical case to the Supreme Court, well done.

r

Regarding purchase of handguns by DC residents, I can also see the legal transfer of firearms to at least two FFL holders (at least I could imagine they are) the FBI and the BATFE, also was there someone that pointed out that was it the Brady group or held a FFL in the district... and you could also claim residence in MD or DC.....