Thursday, March 20, 2008

Gura's Response on Machine Guns

We've had some discussion on the numerous mentions of machine guns in the D.C. v. Heller oral arguments. Some of those discussions have been pretty heated, in the sense that some in the Class 3 community felt that they were being "tossed under the bus" for the sake of the individual interpretation.

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.

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).
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 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's his complete response:
Thanks for your support.

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."

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.

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'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.


Anonymous said...

I have read the commentary on a number of gun forums and it seems some gun owners are naive in the extreme. There has never been a snowball's chance the court would strike down CCW permit laws, regulation on machine guns, age restrictions or background checks.

I do hope at least one liberal justice (Souter?) will side with the conservatives in declaring the 2A an individual right and the DC ban unconstitutional. That will hopefully make it more "bulletproof" in years to come.

And all gun owners should realize this is just the first salvo in what will be decades of litigation just as civil rights cases are still brought some 40+ years after legislation ended discrimination so gun advocates will be forced to defend the 2A for decades.

Anonymous said...

I ***personally*** think Gura should have walked into court wearing nothing but an American flag, toga-style, a belt of .30 cal draped over his shoulder and an M-60 instead of a litigation bag, and spent his entire argument period shouting "SHALL NOT BE INFRINGED ! SHALL NOT BE INFRINGED !"

But that's just me.

Overload in Colorado said...

Reasonably. That seems to be what the Court wanted to insert into 2A. "...keep and bear arms shall not REASONABLY be infringed."
They mentioned not carrying a gun to market.

Just like the 1st now basically reads, "congress shall make no UNREASONABLE law respecting..." You can't yell fire in a theatre.

The 4th already has unreasonable in it.

Unknown said...

I was at the Gun Rights Policy Conference when Gura and Levy spoke on teh case.

The majority of the crowd understood, but there was the "cold dead hands" crowd that insisted any court fight that end with the words "What part of shall not be infringed do you now understand, robe boy?" was a sell out.

It took 80 years to get here on gun control, it may take 80 more to get back to square one (pre-NFA).

BTW: I am 100% in agreement that cans are the logical next step. We can sell it as a noise pollution/public health initiative. Save the cops. Save the soldiers. Save the ears.

And, being the generous person I am, Gemtech can send me some cans so I can begin to create the PSAs for this.

The Armed Canadian said...

I agree with you. On the suppressor issue, there is a good reason to pursue it in the name of winning public support:

Urban encroachment.

More and more we hear about gun ranges being attacked by urban johnny-come-latelys who don't have experience with firearms into urban areas and demand a local outdoor range be closed for noise reasons. They may be uncomfortable in general with guns but they frame the arguments in terms of noise.

We can have a much better chance of letting the two mindsets co-exist as these urbanites move to rural areas if the noise is reduced to something not recognizable as gunfire at a distance. If the noise isn't impinging on their liberal sensibilities, they will be less likely to attack the range as a whole.

If we can demonstrate the effectiveness of suppressors to the public-at-large near a range they are or may threaten, we can build the political capital with their Federal reps to get them out of the NFA.

Some won't listen but they can hear.

Anonymous said...

Another good reason for pushing cans is the "sophisticate" aspect - I believe they're pretty much required in many European countries for exactly the reasons set forth in prior comments. For better or worse "the Scandinavians do it" or "the Brits do it" has a lot of appeal in many circles - in this case rightly so.

Anonymous said...

I listened to the audio of the oral arguments and at first I was worried that Gura didn't answer all of the points raised by the opposition, and the justices, very well. I still think he could have done better on the self defense question.

Then I ran across a topic that noted that Gura was fighting to win vote 5 and it became much more clear to me how well he did. His response that you provided here reinforces that thought.

Thanks for all you do!

Anonymous said...

Mission one to win this one, Mission 2 win the next. there is no way short of civil war we will roll back everything at once.As long as the ocurts work I say use em.Now if the courts don't work weroll up our sleeves and do what needs to be done.

Anonymous said...

I've fought the Machine Gun Public Perception Campaign about as much as anyone, only I started twenty years ago. The simple truth is this dog won't run.

No matter how you frame it, you CAN'T SELL IT to Mr. & Mrs. America, even if they have a cabinet full of deer rifles and trap guns.

And you damn sure can't sell to Federal Judges or legislators. Neal Knox, bless his soul, and I had this conversation multiple times back in the 1980's and the only way to address the MG ban is through some sort of legislation that enables police officers with acquistion of newly registered machine guns that can be fully transferred after a certain period of time, otherwise it is just someone's wet dream and will always remain a nocturnal emission.

While my inner self wishes it weren't so, Gura did the smart thing. I just hope he gets us the declaration from the Supremes that the 2nd is an Individual Right.

That would be the first step.

All The Best,
Frank W. James

Anonymous said...

I think it would be great for someone to make a Youtube vid of buying a suppressor in New Zealand (or any of the other countries in which they are commonly available), and then throwing away as they get on the plane back to America.

Anonymous said...

The older I get, the more and more convinced I become that the hard-core GOA types are a lot more interested in proving that they are much more interested in freedom than you are, than they are interested in actually winning on any single gun issue.

I swear, they'd rather lose while screaming "NO BE INFRINGED" and beating their chests than winning the single biggest gun-rights victory in 80 years.

Laughingdog said...

I don't think there are that many that had any expectation that Heller might have had an impact on the 1934 NFA. However, I had hoped that it might be something that would strike down the Hughes Amendment. I'm not even remotely as concerned about having to register a machine gun as I am about an artificial reduction in supply driving the price of those guns up at least $10,000.

Pete said...

As an attorney and a gun owner, I agree with Alan Gurra. 100%. Thanks Michael.

Anonymous said...

Gura like any good lawyer avoided the key point here on machine guns. He not only avoided it in his reply but before the court.

First, they ARE lineal descendants of arms carried by the founders. Both in terms of technology and purpose. Second, it is as a result of the Miller decision that they are NOT in common use today. Miller was one of the things to be evaluated and as Kennedy said deficient.

Typical lawyer is all I can say.

The Freeholder said...

I think everyone is missing the real effect of Mr. Gura's words. Our enemies my be anti-freedom, but they are not stupid. They know we've stolen their playbook.

One of these fine days, Mr. Gura is going to get his machine gun case, and he'll wind up in front of the Supreme Court. And one of those justices, one who is not on our side, will quote him his own words.

And there, my friends, will go your machine guns, once and for all.

Anonymous said...

SO, it's a "public opinion" argument you want? OK.

He's in court arguing against a blanket ban on a class of guns, immediately afterwards he's at a press conference where he argues that exact point against machine guns. Besides the bucket of "hypocrite fuel" he just tossed on the fire you'll be seeing those same words as support to keep unconstitutional bans on machine guns.

How is this not obvious? Do people not have the ability to understand rights? A right doesn't come from the government, we gave them no ability to alter or change what falls under that right. What you're saying is that if you come to a cliff and the road goes left and right parallel to it you want them to turn less then 90 degrees. That takes us over the cliff.

Anonymous said...

Good Job! :)

piove said...

I live in New Zealand, and am following the battles you have with great interest. What amazes me is that you can't have a silencer! My .22 (a Savage) comes with a factory fitted full over barrell suppressor, cut down to be minimum legal length (762mm) and sold like that with a factory warranty. It is quieter than a spring loaded BB gun I also own.
I thought cans were just logical...
Automatics and handguns are a different story.
I have a permit to CCW in Australia, Switzerland and the UK, due to a previous job. I can't own a handgun here in NZ for another year, and will never get a CCW permit, they barely exist, and are almost never acknowledged