As you know — or at least I think you know — I come down on the same side as David Hardy at the Of Arms & the Law Blog:
Joe Olson [Professor Joseph Olson, head of Academicians for the Second Amendment] 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.You all know I love machine guns and have from the very first season featured them prominently on SHOOTING GALLERY and now on DRTV. I did that by intent...my goal was and is to help change the public perception of full auto weapons, because I believe that is the only way we can address the 1986 and 1939 travesties. Today Alan Gura himself, the lawyer who argued Heller before the High Court, took the time to explain himself on the subguns discussion board...here's his complete response:
I think EVERYONE associated with this case who knows anything about appellate argument -- and I've talked to many in that class -- agreed that if you cannot come up with a 2nd Amendment test that lets the government do a lot of things with full autos, you lose. That's bottom line. You can have a second amendment for things other than full auto, or you can have no second amendment. Take your pick, there is no third alternative. Life isn't fair. I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).
Thanks for your support.I gotta give the guy full credit for nads...first he stands up in front of the scariest court in the land and, quite frankly, delivers the mail. Say what you will with 20/20 hindsight, but Gura hit all the bases and cross the home plate standing up. He did what we in the gun community absolutely, positively prayed he would do.
The solution to 922(o) will have to be political in the end. The fact is, outside the gun community, the concept of privately owned machine guns is intolerable to American society and 100% of all federal judges. If I had suggested in any way -- including, by being evasive and indirect and fudging the answer -- that machine guns are the next case and this is the path to dumping 922(o) -- I'd have instantly lost all 9 justices. Even Scalia. There wasn't any question of that, at all, going in, and it was confirmed in unmistakable fashion when I stood there a few feet from the justices and heard and saw how they related to machine guns. It was not just my opinion, but one uniformly held by ALL the attorneys with whom we bounced ideas off, some of them exceedingly bright people. Ditto for the people who wanted me to declare an absolute right, like I'm there to waive some sort of GOA bumper sticker. That's a good way to lose, too, and look like a moron in the process.
I didn't make the last 219 years of constitutional law and I am not responsible for the way that people out there -- and on the court-- feel about machine guns. Some people in our gun rights community have very....interesting....ways of looking at the constitution and the federal courts.
I don't need to pass judgment on it other than to say, it's not the reality in which we practice law. When we started this over five years ago, the collective rights theory was the controlling law in 47 out of 50 states. Hopefully, on next year's MBE, aspiring lawyers will have to bubble in the individual rights answer to pass the test. I know you and many others out there can appreciate that difference and I thank you for it, even if we can't get EVERYTHING that EVERYONE wants. Honestly some people just want to stay angry. I'm glad you're not among them.
You want to change 922(o)? Take a new person shooting. Work for "climate change."
Then he faces head-on his detractors on the Internet with a lucid, thoughtful argument based in how the world really works.
Good on you, dude!
Does that mean we all need to stop fighting for reform of the '86 Ban and the NFA? Hell no! But we all have to accept that the real battle is in the court of public opinion, not — yet — the court with marble halls.
Frankly, I'm a big fan of incrementalism...it's a tactic that has worked great for our enemies! How can we start chipping away at those abusive laws? Here are a couple of ways to start...
Based on the responses I've received from SG episodes, I think there is increasingly less support for the heavyweight federal regulations of suppressors than ever before. We have documented cases of police officers having to take medical retirement because of hearing injuries connected with using M4/AR-15s indoors. Heck, most of the people I know — myself included — have some level of hearing damage. There are increasing issues of "noise pollution" on urban outdoor ranges and for hunters in close proximity to urban/subruban areas.
We have the simple solution to those problems...a low-tech gun muffler. When I was in New Zealand a few years back, you could get rimfire suppressors for $25 at the local hardware store — they were considered a "courtesy for the neighbors." I believe, and have gone on record in writing and on SHOOTING GALLERY, that every police rifle in America should be suppressed. Period. I believe we should all have the option to save our hearing, or to avoid disturbing our neighbors, without filling out tons of paperwork, paying a tax that effectively doubles the cost of a simple suppressor. I know the guys at Gemtech and Tactical Solutions certainly agree on those points and are willing to stand up. In fact, Gemtech for years produced posters urging the "legalization" of silencer technology. I believe here's a brick that we can chip away at.
First and foremost, though, we need the Second Amendment reaffirmed and nailed down!
Gura argued his case and, IMO and the opinions of many other legal experts, argued it well.