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Oral Argument in DC v. Heller. The view from the Counsel Table:

On March 18, I joined the lawyers for Dick Heller at the counsel table for oral argument in District of Columbia v. Heller. The counsel table has four seats, and there were three lawyers representing Mr. Heller, so Alan Gura, the lead lawyer in the case, invited me to sit with them at the counsel table.

The practical function of the lawyers who are not presenting the oral argument is to write notes for the arguing lawyer, in case a tangential issue comes up. During the presentations by Walter Dellinger (for D.C.) and Paul Clement (for the Solicitor General) Justice Stevens asked questions which pointed out that of the Founding Era state constitutions, only two (Pennsylvania and Vermont) specifically mentioned self-defense as one of the purposes for the right to arms. So I gave Gura a note pointing out that courts in Massachusetts and North Carolina had interpretted their state constitution "for the common defence" language as an encompassing a right to arms for legitimate purposes, including defense against criminals. During Gura's presentation, Justice Stevens raised the point again, and Gura began to detail the case law, but Justice Stevens waved him off, stating that he was interested only in the constitutional texts.

After oral argument in any case, it's always possible to think about how a particular answer could have been given better; but I think that Alan Gura did an excellent job. He was solid, well-informed, and persuasive.

Some observations from a first-timer in the Supreme Court:

The counsel table is quite near the bench. It's an interesting experience to see the Justices up close and personal, after having spent so many months trying to discern their modes of thought.

It is indeed awe-inspiring to hear the Marshal of the Court announce: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Before the argument, Walter Dellinger, a true Southern gentleman, came over to shake our hands. He graciously told Gura that Gura would do "great," and said that his own very first oral argument had been his best.

Also awe-inspiring are the Court's chambers, with a beautiful high ceiling, and friezes on all four walls depicting great law-givers, as well as mythical characters personifying law-related virtues such as wisdom.

Based on the oral argument, it is possible to identify a few of the amicus briefs that were particularly influential. As Respondent, Gura would have been foolhardy to argue that the Court's leading precedent, United States v. Miller needed to be altered in any respect. That argument was instead in Nelson Lund's excellent brief for the Second Amendment Foundation, and was apparently adopted by Justice Kennedy.

Justice Kennedy's view that the militia clause of the Second Amendment emphasizes the importance of the militia, but does not limit the rights clause was supported not only by Gura's brief, but also by a careful textual analysis in the Lund brief, and by a strong historical presentation in the Academics for the Second Amendment brief, written by David Hardy and Joseph Olson.

Gura was asked at one point if there was any contemporaneous evidence indicating that self-defense was a purpose of the Second Amendment. He began by pointing to the 1787 Dissent from the Pennsylvania ratifying convention, which had urged that the proposed U.S. Constitution be amended to state: "That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."

Justice Souter retorted that the Pennsylvania Dissent was only concerned about the militia. Given the text of what the Pennsylvanians said, I find this view implausible; the better argument on D.C.'s side (made by, among others, Dennis Henigan of the Brady Center) seemed to be that if James Madison wanted to protect more than militia-only uses of firearms, he could have copied Pennsylvania's language, but he chose not to.

Nevertheless, Justice Souter seemed to have been persuaded by arguments in a historians' brief by Carl Bogus, which cited the law review scholarship about Pennsylvania by Nathan Kozuskanich. Kozuskanich was also cited in D.C.'s briefs, and in several of D.C.'s amicus briefs.

Michael Bane's Down Range TV has a collection of various lawyers, academics, and other Second Amendment advocates, discussing the oral argument. He also has a link to the oral argument audio. C-Span's Real Video coverage of the press conference after the brief (about 21 minutes, equally divided between the two sides) is here. A 15 minute iVoices.org podcast in which I'm interviewed about the oral argument is here.

For over a quarter-century, pro-Second Amendment lawyers such as Stephen Halbrook, Bob Dowlut, Don Kates, and David Hardy had dedicated their careers to making March 18, 2008, possible. Moreover, without the work of millions of pro-Second Amendment activists over the years, there would have been no chance of victory, however persuasive the evidence of original meaning might be. If the gun prohibition lobby had succeeded in its plans to use the 1976 D.C. ban to pass handgun bans in many cities and several states, it is doubtful that the Supreme Court would have the institutional will to strike down so many laws. And it also seems unlikely that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would have been willing to declare even the D.C. ban unconstitutional.

Yet while the work of millions of citizens made March 18 possible, it was Alan Gura who had to finish the job alone. Our young Skywalker performed magnificently, and I hope that by the Fourth of July, the law-abiding citizens of our nation's capital will once again enjoy their rights to own handguns, and to use firearms in defense of their homes and families.

Free Trader:
Very interesting post. Congratulations on being able to participate in a manner so close and personal on a very important case.

Like you, I think the Second Amendment protects and individual right. However, I do wonder about the argument that our position is "pro-Second Amendment." What makes it so? Would it still be pro-Second Amendment if it was incorrect from an originalist perpsective? Is it pro-Second Amendment because it argues for a more expansive view of the right protected?

Who is pro-First Amendment? Only those who support a more expansive view of what the First Amendment protects? So, for example, is someone who believes the First Amendment protects child pornography "pro-First Amendment" while someone who believes that such material is not protected not pro-First Amendment.

The bottom-line is this. I think there is a bit of hubris involved with anyone saying that their interpretation of an Amendment makes the "for" that Amendment versus other individuals whose interpretation makes them something else.

That minor quibble aside, congratulations on your Supreme Court experience and thanks for an interesting post.
4.1.2008 12:45am
CDU (mail) (www):
At the counsel table for one of the most important cases in Supreme Court history? You lucky bastard! You owe Alan Gura big-time (of course if he wins, all gun owners owe Gura).

Being present for a Supreme Court argument that's going to be cited and debated over for decades to come will be one to tell your grandkids about.
4.1.2008 12:47am
Dave Hardy (mail) (www):
Been there, with Steve Halbrook and Richard Gardiner at Printz/Mack. And the view from counsel's table is indeed strange. One assumes that the US Supreme Court must be enormous, but it's actually a courtroom designed in the 1930s, for a Court that until then met in the Senate basement. So the area within the bar is quite small, on a par with the area inside the bar in Pima County Superior Court, but with nine judges instead of one. The Justices nearest you seem almost at the edge of counsels' table, and about eight feet up.
4.1.2008 1:01am
federal farmer (www):
Well, I sat much farther back than you, David. In fact I was as far back as possible, but I loved every second of it.

It was not easy to sit there silently. There were a couple points when I would have loved to interject! LOL.

One such was during the discussion about "for the common defense" and "for the defense of themselves and others". One Justice commented that it did not say latter and no one made the observation that it likewise did not say the former. I believe it was left unqualified on purpose. Madison was economical. He did not want a Bill of Rights in the first place because it would tend to be viewed as a list of all protected rights (no right no listed would exist).

I think he did not want to enumerate the acceptable uses for "arms" so that they would not be so limited. Just like the decision to use "arms" instead of "guns" or "firearms".

But then, I'm no lawyer.
4.1.2008 1:03am
Terrivus:
Maybe I am more cynical than most, but my experience with the Court has led me to adopt a vigorous legal realist position, one that views the many party and amicus briefs merely as sources from which the Justices take arguments they are already inclined to agree with.

For example, you write "Justice Souter seemed to have been persuaded by arguments in a historians' brief." Justice Souter is a sincere and conscientious jurist, but frankly, I doubt he was "persuaded" by any brief; rather, that particular brief offered him support for a policy position he was already inclined to agree with. The same goes for, well, pretty much every Justice -- briefs offer each one a chance to cherry-pick arguments and sources that support the position he or she wants to advocate in an opinion.

The most accurate part of your post is when you state, "[I]t also seems unlikely that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would have been willing to declare even the D.C. ban unconstitutional."

That, my friends, is what the Supreme Court all comes down to. All the compelling pro-individual-rights briefs in the world wouldn't have made a whit of difference had a President Kerry been elected, because the Justices he would have appointed -- as opposed to a Roberts and Alito -- would have been inclined to uphold the ban and scour the petitioners' briefs for arguments to support this outcome. But for a few votes in Florida and Ohio, the entire case and the next century of Second Amendment jurisprudence comes out 100% the other way.

And yet there are still those for whom Supreme Court appointments aren't important in determining their vote in November...
4.1.2008 1:09am
PeteRR (mail):
David,

Excellent post. The feeling on many firearm bulletin boards, post oral arguments, is that Gura threw machine gun owners under the bus. As you are undoubtedly aware, they are the most law-abiding group of gun owners in this country with only one murder committed by a legally owned MG. The only reason they aren't in wider circulation is FOPA. What do think will be the effect of a "commonly held firearm"-type of pro-2nd Amendment SC ruling on NFA Class III firearms?
4.1.2008 1:14am
therut:
I have to give great thanks to all the above mentioned scholars and the author of this site. It all started when my Dad gave me my first firearm ( .38 snub-nosed S&W revolver) at age 18 cause I was driving 30 miles back and forth to College and needed to be able to protect myself. I love my Dad for that alone. He was thinking of his daughter being safe when he was no longer going to be around to do it himself. Showed what a great man he was. Then came the Clinton years and finally being out of Medical School and back in the real world. I started hunting at the age of 34 and got the internet. Boy did that open my eyes and I become political for the 1st time in my life. I just could not believe that there were people in this country that believed the 2nd amendment did not give me a fundamental individual right to own firearms. I was furious. So I read and learned. That alone made me forever NOT a Democrat and a full fledged activist in the RKBA movement. I will NEVER forgive Bill Clinton. Never. I am still angry just thinking of the awful things he said about gun owners like me. He does not feel my pain and never will. Thanks for a opening my eyes and mind.
4.1.2008 1:22am
pgepps (www):
Apropos the "all gun owners will owe him big" comment, which is certainly true, and seconding the congratulations to one of the advocates who influenced me early and often to be a supporter of the right to keep and bear arms on his getting to participate in a great moment in history . . .

"all gun owners will owe him big" as will, incidentally, all those non-owners who benefit from the deterrence and protection effets of an armed citizenry . . .

Which makes me think of the discussions on this blog about "free riders" in such matters as vaccination.

Granted the risks from felonious or untrained gun handlers, but given the disproportionately favorable effects of an armed citizenry, shouldn't the untrained and unarmed come in for a little "free rider" stigma, too?

Or if they shouldn't, then couldn't we let up on vaccine skeptics?

Just a thought . . .
4.1.2008 1:24am
Visitor Again:
I'm 64 and have never voted for a Republican in my life, but am grateful to Don Kates (the only one of the named I have met, on a commercial flight in 1969 where he showed me two of his handguns) and the others who have fought so long and so hard for the individual right to own and bear arms.
4.1.2008 1:31am
Kazinski:
I realize that the justices are far above taking political consequences into consideration, but we can. I can't help but think that even a 5-4 win for Heller, rather than remove the RKBA from the election agenda, might drive home to many gun owners that they are one justice away from getting Heller reversed.
4.1.2008 2:36am
Brooks Lyman (mail):
Visitor Again -

You might want to reconsider your voting record for the Presidential election this time around - neither of the current Democrat candidates are the friends of gun owners. On the local level, things are often different, but anti-gunners seem to float to the top in the Democratic party. Here in MA, we have a legislature which is 90% democrat (one-party state, anyone) and yet, when it comes down to trying to ban guns (I won't say our gun laws are really gun-owner-friendly), they seem to manage to not do so, often by rather large margins.

Ah, for the good old days - Don Kates showed you, on a commercial airliner, a couple of handguns? There's one plane that the terrorists would want to have avoided, had they been active back then! Too bad we don't have the same sort of sense today.
4.1.2008 2:49am
Cornellian (mail):
Our young Skywalker performed magnificently

Not the best phrasing perhaps - makes you sound a bit like Chancellor Palpatine
4.1.2008 2:58am
LM (mail):

And it also seems unlikely that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would have been willing to declare even the D.C. ban unconstitutional.

Was omitting Al Gore an oversight? Because the only person I've heard suggest Gore would have made the same choices Bush did is Ralph Nader.
4.1.2008 3:02am
Dave N (mail):
I hope you remembered to take your quilled pen, and that you will have it shadowboxed and then framed in a very prominent location (one suggestion I have heard is to shadowbox the quill with the Supreme Court advanced sheet and/or the briefs).

In any event, I am jealous. I have sat in the bar members' area in front of the bar; I have authored an amici brief; but I have never had the honor of sitting at the Supreme Court counsel table, let alone the privilege of arguing a case there.
4.1.2008 3:36am
David E. Young (mail) (www):
Listening to oral arguments on C-Span directly after they were recorded, I also noticed Justice Stevens' questions indicating that only two period state bills of rights protected self-defense.

Another line of questions that stuck out for me was that discussing the English Bill of Rights provision indicating that protestants may have arms "according to their condition, and as allowed by law." One of the justices did mention that the English Bill of Rights was only a limit on the king. However, it sounded as if certain justices may intend to directly relate the EBR's provision to the Second Amendment.

The brief filed by the professional historians contains discussion of the English Bill of Rights as an aid to understanding the Second Amendment. As I pointed out in a History News Network article critical of the historical errors and oversights in the historians' brief, James Madison specifically stated during his BR introducation speech in Congress that comparing the English Bill of Rights to American bills of rights was inapplicable. One reason was that the EBR limited only the executive branch, while the eight American state bills of rights were understood as limiting the government, not just the executive.

I have always had the impression that those in the legal profession tend to skip back over the state bills of rights to the EBR in order to try and understand the Second Amendment. This was definitely the case in many of the earlier law review articles written by those supporting gun control. Failing to address the period state bills of rights, all of which have Second Amendment related provisions (the provisions of which are the very sources for the language in the Second Amendment), is a major historical mistake.

The HNN article critical of the historican's brief is at this URL:
http://hnn.us/articles/47238.html
4.1.2008 4:29am
George Weiss (mail) (www):
i still cant understand why (1) it took so long to get the issue to the supreme court..and i definitely cant understand why (2) the case wasn't brought out of NY or Chicago-so as to incorporate the 14th and 2nd amendment issues all in one shot-particularly with a pro gun rights court.-particularly in light of the fact that so many activists have been dreaming of this day for so long.

theres been so much written about the heller case-and through it all-though those two realities have been mentioned again and again-nobody ive seen has even attempted an explanation
4.1.2008 5:01am
CDU (mail) (www):
and i definitely cant understand why (2) the case wasn't brought out of NY or Chicago-so as to incorporate the 14th and 2nd amendment issues all in one shot-particularly with a pro gun rights court.


This case was deliberately brought in D.C. for two reasons. First, it has the strictest gun ban in the country, if the D.C. gun ban isn't unconstitutional, no restriction of our Second Amendment rights is. Second, it was brought in D.C. specifically so that the incorporation would NOT come up. This is very much a "one step at a time" lawsuit. If the Supreme Court rules that there is an individual right, then I'm sure that lawsuits raising the issue of incorporation will be filed almost immediately in New York, Chicago, and elsewhere.

Alan Gura and the other attorneys on this lawsuit specifically wanted to get the cleanest possible single-issue case to decide whether or not an individual right was possible. Gura has said that he wanted a good case, where there were no extraneous issues, where the plaintiff was a clean cut, law abiding citizen and not some criminal who was going to get off if the court ruled in his favor, and where there was no question that the law at issue could be a "reasonable" regulation of the right. The entire case was intentionally chosen to give the Supreme Court a as clear a choice as possible on whether or not the Second Amendment protects an individual right.
4.1.2008 5:25am
George Weiss (mail) (www):
cdu-

ok i guess i understand that except for this part:

then I'm sure that lawsuits raising the issue of incorporation will be filed almost immediately in New York, Chicago, and elsewhere.


since this issue has been incubating for years since miller-really since 1787-than why can we be so sure that incorporation will be quick before the court assuming a heller friendly decision
4.1.2008 6:28am
George W. Rogero (mail) (www):
NY City next?? Like they issue a license that is not even valid in the rest of the state or NY City's colored gun ban:

"deceptively colored firearm, rifle, shotgun, or assault weapon" shall include any firearm, rifle, shotgun, or assault weapon any substantial portion of whose exterior surface is colored any color other than black, dark grey, dark green, silver, steel, or nickel," (Note they left out case colored and blued guns.)


My only Monday morning quarter backing comment is about:

(Pg 78, Line 17;) JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?
MR.GURA: If we were to consider the extent of the murder rate withhandguns, the law would not survive any type of review, Your Honor.
JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun.
MR. GURA: Absolutely, Your Honor.

I wish that he has added: You Honor, most of the gun crimes in DC are committed by criminals who are already ignoring the DC handgun ban. The criminals believe that not only do individuals have a right to have handguns; they believe that criminals have a right to own handguns and to use those handguns to commit crimes. Because of this, whatever the court decides will have no impact on the criminals’ willingness to own and use any gun in an illegal manner. The number of gun crimes in DC can be used but only to show how ineffective DC gun control laws are.

I thought that everyone did a great job and that to focus on just DC is the best way to go.
"Be Careful What You Wish For 'CauseIt Might Come True." I am waiting to see what the Supreme Court decides is an acceptable restriction vs an outright ban. The question left; "What is the meaning of and limitation of "shall not be infringed."
Talkin to the press on the court steps, Helmke and Henigan, both sounded like they conceded that the court was going to find that the 2nd Amendment was an individual right and overturn the DC handgun ban but that the court was going to allow, "reasonable regulations."
That was in direct contrast to the Brady Campaign's past statements including Helmke's column in the January 2008 Legal Action Report Newsletter that talked about the original lower court ruling that overturned the DC handgun ban that: "The majority's ruling is deeply flawed, with an agenda to rewrite the Second Amendment to embrace "private purposes" that were neither included in its text, nor supported by its framers."
I am glad that I have lived long enough to have this decided. I do not think that I will live long enough to have the decision on the answer to the question; What are "Reasonable regulations?"
Thanks to all of those people who have spent their life on this question. Excellent post.
4.1.2008 8:41am
ithaqua (mail):

It is indeed awe-inspiring to hear the Marshal of the Court announce: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Except, I assume, if one is an atheist, and so offended by the very mention of God. Or a liberal, and so offended by the idea of God preserving the United States. :P

I see a lot of optimism on this thread regarding the likely result, and I really would like to share it. Unfortunately, I think this:

[I]f the D.C. gun ban isn't unconstitutional, no restriction of our Second Amendment rights is.

presages the result fairly accurately, and is why the NRA, et al, didn't support this case in the beginning. Abortion opponents, for example, have been using a 'death-of-a-thousand-cuts' approach, cautiously building precedent with partial-birth murder bans and interstate human trafficking laws, to give a legal foundation to more sweeping bans; this case is an all-or-nothing gamble. I'm hoping the coin lands heads, but I'm not sanguine about it.

And yet there are still those for whom Supreme Court appointments aren't important in determining their vote in November...

There was a gentleman - Doug Kmiec, I believe - who switched his allegiance from Romney to Hussein, and commented (rightly) that "[S]ome of my friends will see this as a matter of party or intellectual treachery". Oren asked, in a commment, "Since when have reasonable disagreements about politics risen to the level of treachery?" Well, this case today shows why.

A President's direct influence, baneful though it may be, will only last for four (or eight, at worst) years. His influence on the Supreme Court will last for decades, even centuries; FDR, for example, put his boot on the Court's collective neck almost eighty years ago, and America is still suffering from the effects. Conversely, no matter how horrible a conservative Bush may have been (Medicare expansion, anyone?) he replaced O'Connor with a reliable conservative vote, allowing this case to have even a prayer of a positive result.

Given the power of the Supreme Court, and the tremendous challenges America is facing to traditional rights, traditional religion and the traditional family, I'd go even further than Kmeic's critics. Not only is a conservative who votes for the Democrat a fool or a traitor, so is any conservative who, for whatever reason, refuses to vote for the Republican candidate (McCain, this year). Every vote withheld from McCain means that Hussein needs one less vote to win your state and pack the Supreme Court with anti-gun, anti-family, anti-God, pro-ICJ, pro-Sharia judges (I exaggerate only slightly).

Granted the risks from felonious or untrained gun handlers, but given the disproportionately favorable effects of an armed citizenry, shouldn't the untrained and unarmed come in for a little "free rider" stigma, too?

Or if they shouldn't, then couldn't we let up on vaccine skeptics?

No, and no.
4.1.2008 9:48am
PLR:
There is a gun prohibition lobby?
4.1.2008 9:54am
Mikeyes (mail):
Congratulations on the honor of sitting in on such an historic argument!

From a non-lawyer viewpoint it appears that the oral argument has little to do with the decision eventually made in any SCOTUS case. Does oral argument serve a purpose other than to make the proceedings public at some point? Have Justices ever acknowledged that they changed their minds or formulated an opinion based mostly on the oral argument presented to the Supreme Court?
4.1.2008 10:05am
ChrisIowa (mail):

There is a gun prohibition lobby?


AKA MSM et. al.
4.1.2008 10:41am
PersonFromPorlock:

...the better argument on D.C.'s side (made by, among others, Dennis Henigan of the Brady Center) seemed to be that if James Madison wanted to protect more than militia-only uses of firearms, he could have copied Pennsylvania's language, but he chose not to.

A good case can be made that the Second does incorporate the elements of the Pennsylvania resolution. The BOR as proposed was ungodly crunched together, probably to minimize the number of amendments: what does freedom of speech really have to do with 'no established church', or either of them with the right to assemble?

The elements of the Pennsylvania resolution summarized in the Second are a general right to arms for whatever purpose, the role of a militia in preserving freedom and the need for the militia to be well-regulated.
4.1.2008 10:41am
NaG (mail):
I think that the "collective rights" view of the 2d Amendment is dead and buried. I would not be surprised if all nine Justices adopt the "individual rights" view. However, the split will be over whether the "individual rights" view allows virtually unlimited regulation, strict scrutiny on regulation, or something in between.

What is interesting to me is how this decision has the potential of becoming a Roe v. Wade for the Right, in that a judge's view on the 2d Amendment becomes a main determinant of whether to grant them a seat on the Court (or any federal appellate court). I don't think this is a good thing -- such litmus tests are harmful, in my view -- but it may serve as a counterbalance to the Left's insistence on finding judges that will uphold Roe.
4.1.2008 10:51am
Andy Freeman (mail):
> There is a gun prohibition lobby?

None of the "gun control" organizations have ever opposed a restriction as going too far. Moreover, while many of their individual proposals are not bans by themselves, if several of them were adopted, we'd have a gun prohibition.

While they won't admit to pushing prohibition, their proposals and actions show that they do. Should we assume that they don't know what they're doing?
4.1.2008 11:37am
PLR:
There is a gun prohibition lobby?

None of the "gun control" organizations have ever opposed a restriction as going too far. Moreover, while many of their individual proposals are not bans by themselves, if several of them were adopted, we'd have a gun prohibition.

While they won't admit to pushing prohibition, their proposals and actions show that they do. Should we assume that they don't know what they're doing?

Guess I'll take that as a yes.
4.1.2008 12:03pm
DiverDan (mail):

Justice Stevens raised the point again, and Gura began to detail the case law, but Justice Stevens waved him off, stating that he was interested only in the constitutional texts.


Oh, what delicious irony, Stevens has become a textualist!! Who says that law is a dry, humorless endeavor. It can be funny as hell.
4.1.2008 12:26pm
Dennis Nicholls (mail):
The antigun people have changed the names of their organizations over the years in recognition that their more extreme views aren't "selling", but it's the same people with the same views. I don't have a history paper in front of me, but IIRC "National Coalition to Ban Handguns" changed its name to "Handgun Control Inc." which more recently morphed into the "Brady Campaign".
4.1.2008 12:28pm
Tony Tutins (mail):
Gura threw machine gun owners under the bus

No more than Poe v. Ullman threw abortion rights activists under the bus. The reproductive rights struggle details a useful strategy for gun rights advocates: Start with a right few would refuse to recognize (the right for a married woman to obtain contraception from her doctor). Once that is established, go back to the well asking for more and more. Be prepared for some pushback -- the partial birth abortion ban may find an analog in 50 caliber machine guns.
4.1.2008 12:45pm
Elliot Reed (mail):
It is indeed awe-inspiring to hear the Marshal of the Court announce: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

::snip::

Also awe-inspiring are the Court's chambers, with a beautiful high ceiling, and friezes on all four walls depicting great law-givers, as well as mythical characters personifying law-related virtues such as wisdom.
Am I the only one who finds it disturbing to be inspired to awe by the temple of the State and the rituals of obesience to its high priests? One could experience awe in the sense that one cowers in awe of the State's power but Randy's tone makes it clear that he doesn't mean that.
4.1.2008 12:47pm
Kazinski:
Tony Tutins,
...the partial birth abortion ban may find an analog in 50 caliber machine guns.

If the RKBA is an individual right (we can pretty much take that as a given), then I don't have a problem if the courts limit the scope of that right into one that is individual in nature.

A .50 caliber heavy machine gun is a squad level weapon, now a .50 sniper rifle, that's an individual weapon.
4.1.2008 1:28pm
Dick King:
One main reason I like the idea of the senate and president being from opposite parties is that we get more honest supreme court judges. I will not be sanguine if we get unrestrained one-party rule -- no matter which party it is.

-dk
4.1.2008 1:36pm
PersonFromPorlock:
On rereading it, in my comment at 4.1.2008 9:41am I seem to have left the point out. What I meant to say was that in the context of the general 'crunching' of the BOR, the Second Amendment can be seen as a 'crunched' version of the Pennsylvania delegation's suggested amendment.

I'm going to go spray WD-40 in my ears, now.
4.1.2008 1:57pm
Jeffery W Wilson (www):

The feeling on many firearm bulletin boards, post oral arguments, is that Gura threw machine gun owners under the bus.


Yes, I've read these posts, as well.

I've interpreted Alan Gura's response as his effort to deflect discussion on an issue not before the court in this case, and refocus attention on the issue in this case: a complete ban on handguns in the home within the District of Columbia.

Regulation or non-regulation of machine guns is a red herring within the context of this case. Supporters of the ban raise questions like "well, what about machine guns?" (I suppose one could also ask "well, what about nuclear weapons?", but that hasn't been voiced yet) in an attempt to widen the argument and solicit "sound bites" that can be used to inflame and [mis-]educate the public regarding the facts of District of Columbia v. Heller. Shelly Parker et al. never raised the issue of machine gun ownership or registration, so raising it in deliberations during this case seems is disingenuous.
4.1.2008 2:31pm
CrazyTrain (mail):
I understand the reference to the 4th of July. But it is generally not a good day for the lawful and appropriate use of firearms.
4.1.2008 2:36pm
Jeffery W Wilson (www):

I wish that he has added: You Honor, most of the gun crimes in DC are committed by criminals who are already ignoring the DC handgun ban. The criminals believe that not only do individuals have a right to have handguns; they believe that criminals have a right to own handguns and to use those handguns to commit crimes. Because of this, whatever the court decides will have no impact on the criminals’ willingness to own and use any gun in an illegal manner. The number of gun crimes in DC can be used but only to show how ineffective DC gun control laws are.


Nicely said.
4.1.2008 2:40pm
Dilan Esper (mail) (www):
Supporters of the ban raise questions like "well, what about machine guns?" (I suppose one could also ask "well, what about nuclear weapons?", but that hasn't been voiced yet) in an attempt to widen the argument and solicit "sound bites" that can be used to inflame and [mis-]educate the public regarding the facts of District of Columbia v. Heller. Shelly Parker et al. never raised the issue of machine gun ownership or registration, so raising it in deliberations during this case seems is disingenuous.

This is not true at all. Indeed, in the recent interview series with the Supreme Court justices on briefing, Scalia has a nice riff on this. He hates lawyers who answer hypotheticals by saying "that is not our case". He knows it is not our case. But he has a responsibility to do justice not only for the clients whose case is before the Court, but also in all those future cases that will come before lower courts who will be required to follow the Supreme Court's ruling.

Whether or not an individual right to bear arms that is recognized by the Court will hinder governmental efforts to keep weapons seen as extremely dangerous, like machine guns, out of the hands of private owners is a completely relevant question in deciding a case like Heller. Sure, the Alan Guras of the world would like it if they could limit everything to this one case and no consideration is given to what it might lead to in the future, but the Court is not obligated to take the case as narrowly as the advocates want to present it.
4.1.2008 3:15pm
MichaelG (www):
"Kazinski:
If the RKBA is an individual right (we can pretty much take that as a given), then I don't have a problem if the courts limit the scope of that right into one that is individual in nature.

A .50 caliber heavy machine gun is a squad level weapon, now a .50 sniper rifle, that's an individual weapon."

I have a problem with that line of thinking. Quickly brushing past Trent Coxe whom I guessing you don't agree with as much as I ("Their swords and every other terrible implement of the soldier...are the birthright of an American.") I'll remind those that think that "crew served" or "squad level" is an appropriate way to differentiate "reasonable" regulation of the importance of the Gonzales cannon, the fact that the AR-10 (father of the AR-16) offered a belt feed option and that one person can load &fire a cannon and, with modern mules, transport it to sporting competitions such as at Grayling, Michigan. (http://www.museumandcollector.com/grayling.html)
But I may be biased. One of my goals is to own a Mtn Howizter. http://www.steencannons.com/Thumbnails/Mt%20Howizter/Mh.htm

BTW: while I cringed at Mr. Gura's attempt at deflection on automatic weapons I would have agreed in advance that should the topic come up his best strategy would be to keep to the point of the current case. I remember that the point of Heller, et al, was to achieve a very specific goal. Incorporation, FOPA, NFA, FOID cards (in IL, NJ), licensed concealed carry vs unlicensed, are all issues that first require, in this day and age, specific recognition by SCOTUS of a pre-existing, constitutionally protected, inalienable right.

But just because I cringed then, just like when I cringed at some of the plays the Balt Orioles or Ravens make, that doesn't mean that I think that I could have done better on the spot.

And I thank all that have contributed to getting us to March 18th.

MichaelG
4.1.2008 3:42pm
jamesfreddyc (mail):
"Regulation or non-regulation of machine guns is a red herring within the context of this case. Supporters of the ban raise questions like "well, what about machine guns?" (I suppose one could also ask "well, what about nuclear weapons?"


This hasn't been raised because there are no nuclear weapons that you can "bear". Even still, if there was such a device, it could never be considered as a firearm to be used for self-defense. I mean, if you shoot an intruder, then you blow up the house (and the rest of the neighborhood) you intended to protect, no?
4.1.2008 4:06pm
Doc W (mail):
On Ithaqua's post regarding McCain and the Court: This would be somewhat convincing if I could be sure of McCain's intentions AND if HE could be sure of the intentions of his nominees. But McCain might be more interested in having McCain-Feingold upheld, and it's not clear that any appointee would toe a conservative line anyway--didn't Eisenhower rue his appointment of Earl Warren, or is my 1950s history a little fuzzy?

Meanwhile, here's this little warmongering thang.
4.1.2008 4:18pm
KeithK (mail):

The bottom-line is this. I think there is a bit of hubris involved with anyone saying that their interpretation of an Amendment makes the "for" that Amendment versus other individuals whose interpretation makes them something else.


There are some folks on the left who are quite clearly anti-Second amendment. Larry Tribe, for instance, who has said that the 2nd protects an individual right but wishes it didn't. Those in this camp who are honest have proposed repealing the amendment.
4.1.2008 4:27pm
BZ (mail):
Mikeyes:

Yes, several of the Justices have acknowledged that oral argument sometimes makes a difference in their decisions. The general comment among practitioners is that you generally cannot WIN your case at oral argument, but you can lose it. I'm not sure I would go that far; I believe that it is possible to do both. But I will long remember the "green plum" argument, in which the fellow (who shall remain nameless) giving the argument was so abrasive that any chance of getting leeway from receptive justices was probably lost. E.g., "If Justice Scalia were to give his wife a green plum . . . " "I would never give my wife a green plum!"

BTW, on the counsels' tables being so close in a small courtroom, the most vivid memory I have of my first oral argument is that when the questions began flying, they appeared to come from all around me, and I had no idea who was speaking. On the transcript, it's just "Q . . " "Q . . ." "Q. . ." for pages, with a periodic "A. Well, I" "Q. . ." Thus illustrating the idea that the oral argument is as much a conversation among the Justices as a debate.
4.1.2008 5:16pm
zippypinhead:
Tony Tutins wrote:
Gura threw machine gun owners under the bus

...Be prepared for some pushback -- the partial birth abortion ban may find an analog in 50 caliber machine guns.
I think (or more accurately, fear) that the issue of machineguns -- of obvious concern to several Justices -- right out of the box may end up being treated more like third-trimester abortions in Roe. I would not be surprised if the Court, after holding that the Second Amendment enshrines an individual RKBA, then in essence adopts a sliding scale of "state interest" to permit increasingly restrictive regulation of arms that are deemed more "dangerous." And in the process throws Miller overboard entirely, since if the Miller test is applied honestly you can't reconcile it with a rule that permits greater restrictions on machineguns, or even short-barrel shotguns.

It may take more than one case to fully articulate this principle, but after reading the oral argument transcript several times, I will not be surprised to see the Court lay the groundwork in Heller. At one end of the scale is your Red Ryder BB gun; at the other end is the 25mm chaingun mounted in the bed of your pickup truck (no matter how useful your M242 might be in protecting you from all that deadly rush hour road rage on the Capital Beltway).

And I also fear that such an outcome will be fully as neat, clean, non-controversial, and easy to apply to various fact patterns as was Justice Blackmun's holding in Roe...
4.1.2008 5:18pm
federal farmer (www):
Hey Dilan...

Wasn't Gura supposed to be taken to the woodshed by the Justices? I may have been all the way in the back of the room, but it seemed to me they were harder on Dellinger and pretty easy on Gura.
4.1.2008 6:46pm
Spragins (mail):
For over a quarter-century, pro-Second Amendment lawyers such as Stephen Halbrook, Bob Dowlut, Don Kates, and David Hardy had dedicated their careers to making March 18, 2008, possible.


David - Great post! I would just add that your name (and the names of several other Conspirators) should certainly be included in this list. Thank you for your scholarship and advocacy in support of our Second Amendment rights.
4.1.2008 7:13pm
FWB (mail):
arms

Synonyms arms
pl.n.

Weapons

weapons, armament, armor, ammunition, firearms, munitions, panoply, guns, small arms, side arms, missiles, accouterments, instruments of war, harness, deadly weapons, lethal weapons, means of offense and defense, martial array, pistols, rifles, machine guns, equipment, supplies, ordnance, artillery, weaponry, materiel, hardware*, ammo*; see also munitions.

Arms include: MRV (multiple re-entry vehicle), MIRV (multiple independently targetable re-entry vehicle), ABM (anti-ballistic missile), ICBM (intercontinental ballistic missile), sword, broadsword, foil, dagger, stiletto, bayonet, cutlass, scimitar, machete, saber, ax, halberd, partisan, bill, tomahawk, hatchet, spear, pike, javelin, lance, boomerang, arrow, cross-bow, missile, club, truncheon, bludgeon, cudgel, mace, sling, longbow, catapult, musket, blunderbuss, matchlock, breechloader, harquebus, pistol, cannon, BAR (Browning automatic rifle), machine gun, submachine gun, rifle, M1, M14, M16, AK47, Uzi, Thompson submachine gun (Tommy gun), carbine, bazooka, trench mortar, hand grenade, howitzer, antitank gun, antiaircraft gun, depth bomb, gun, revolver, shotgun, switchblade, blackjack, knife, Saturday night special.


The Second is not just Firearms. And as cliché as it sounds, Arms are not dangerous- People are. Actions using an object might be controlled by government BUT never simply objects. You want an Arm, you got it. If you use that Arm to harm others intentionally or accidentally then we punish your action.

I'm glad this is not England and our Founding Fathers knew where to draw the line concerning the inclusion of English law and precedent. In the UK today, there are calls for banning knives over 6 inches, even simple kitchen butcher knives, because some folks use them to harm others. Deal with the perp in no uncertain terms.
4.1.2008 7:36pm
zippypinhead:
But FWB, you forgot to list the Trebuchet! My favorite arm! I've been fantasizing about using one to launch pox-infected cattle carcases across the Potomac into D.C. for some time now...

But seriously, folks...
4.1.2008 8:41pm
Brett Bellmore:

I think (or more accurately, fear) that the issue of machineguns -- of obvious concern to several Justices -- right out of the box may end up being treated more like third-trimester abortions in Roe.


We could only hope that the Court in the morning issues a ruling allowing for the regulation of machine gun sales, and that evening crafts a loophole rendering that morning's promise empty. But what would the equivalent of Doe v Bolton be for the 2nd amendment?
4.1.2008 9:21pm
zippypinhead:
Brett Bellmore wrote:
But what would the equivalent of Doe v Bolton be for the 2nd amendment?
Well, since the only other firearms-related case with a certiorari grant this term is United States v. Hayes, No. 07-608, methinks there isn't one. The issue presented in Hayes is whether, to qualify as a “misdemeanor crime of domestic violence” under 18 USC 922(g)(9), the offense has to include an element that there be a domestic relationship between the defendant and the victim (as opposed to a general assault statute). Not a logical companion for Heller. Or to throw out the Domestic Violence Offender Gun Ban on Second Amendment grounds, since the question presented is only what specific element the underlying conviction must have in order for the ban to be effective.

If one wishes to litigate a machinegun ban in a post-Heller world, it's pretty obvious the logical first challenge would be to 18 U.S.C. §922(o), the Hughes Amendment, banning new registrations of NFA firearms after 1986. That's the Federal restriction most analogous to the D.C. handgun ban. IMHO, you would be asking for trouble to directly attack the 1934 NFA itself, as that statute on its face is merely a registration and taxation regulation, and if the Justices are queasy about machineguns, the odds of a majority of the Court stretching to preserve the NFA are probably pretty high. Possibly with a holding that would make it tougher to have more draconian restrictions like 922(o) declared Unconstitutional.
4.1.2008 10:33pm
juris_imprudent (mail):
Dilan: ...but the Court is not obligated to take the case as narrowly as the advocates want to present it.

I seem to recall some language about cases and controversies as opposed to the issuance of advisory opinions. How many appeals have been turned away as "not ripe"? The machine gun issue was raised specifically as a red-herring as it was not in any way germane to the DC handgun ban.
4.1.2008 11:03pm
James Gibson (mail):
I can see this is degenerating into Portable nukes, heavy machineguns, and every scare tactic the gun control side can throw. Can't we keep it rational.

50 CAl rifles are still an arm you cannot bear simply because if you fire it from your shoulder standing up you'll break something (and I don't mean the 50). Nukes and explosives are hardly bearable either, and they are disposable (you only use them once). Ammo will be the bigger issue if they declare its an individual right to bear arms since Armor piercing steel core and tracer will probably still be prohibited leaving use with standard ball. If later you have to serve in a militia, the government would issue you the other ammo as needed just as they already do with our soldiers.

Machine-guns are a boggie arm to the justices, but General CLement was wrong about them being general issue. We haven't had a general issue full auto rifle in 20 years. The present M-16 has only a tri-burst fire instead of full-auto and from what I hear the regular troops can live without the Tri-burst. So why would civilians need something we don't give our regular troops.

Now that this has been said, did any of you notice Breyer's comment that under the 1792 Militia Act militiamen had muskets and rifles while pistols were restricted to officers. Not one of the Briefs ever said that, and neither does the 1792 militia Act itself. The Militia Act actually says the officers of the infantry were to have swords. The only time pistols is mentioned is in regard to the militia cavalry units. And all members of the cavalry- officer to trooper- were to carry two pistols. An obvious arm for a man who needed a weapon he could aim and fire with one hand. But since Breyer couldn't of gotten his statement from the Militia Act (since it isn't there) and he didn't read it in any of the Briefs submitted, how did he get the idea that pistols were restricted to officers. I smell justice tampering, isn't it illegal to have a private meeting to discuss pending arguments with a justice without the opposing council present.
4.2.2008 1:34am
federal farmer (www):

But since Breyer couldn't of gotten his statement from the Militia Act (since it isn't there) and he didn't read it in any of the Briefs submitted, how did he get the idea that pistols were restricted to officers.


I bet even Supreme Court Justices crack a book once in a while.
4.2.2008 2:03am
Tony Tutins (mail):

But since Breyer couldn't of gotten his statement from the Militia Act (since it isn't there) and he didn't read it in any of the Briefs submitted, how did he get the idea that pistols were restricted to officers.

Wasn't that the common practice of the last century? My enlisted dad never mentioned carrying a pistol, just the Garand.
4.2.2008 4:57am
David E. Young (mail) (www):

50 CAl rifles are still an arm you cannot bear simply because if you fire it from your shoulder standing up you'll break something (and I don't mean the 50).


This statement is factually incorrect.
4.2.2008 11:38am
Dennis Nicholls (mail):

This hasn't been raised because there are no nuclear weapons that you can "bear".


You are forgetting the shoulder-fired "Davy Crockett" nuclear weapon.
Davy Crockett

I want one of these if/when I grow up.
4.2.2008 12:35pm
zippypinhead:
James Gibson wrote:
Machine-guns are a boggie arm to the justices, but General CLement was wrong about them being general issue. We haven't had a general issue full auto rifle in 20 years. The present M-16 has only a tri-burst fire instead of full-auto and from what I hear the regular troops can live without the Tri-burst. So why would civilians need something we don't give our regular troops.
BUT -- the select-fire M-16 and M-4 are defined as "machineguns" under Federal law [and thus subject to the NFA and 922(o)] because they discharge more than one round per trigger pull. Also, the M249 SAW that's currently USGI standard issue is a man-portable full automatic weapon. So if one honestly applies the Miller test to these firearms, it would appear they should be permitted under the Second Amendment (which, as noted above, is one reason why I suspect Miller isn't likely to survive Heller and its progeny).

You also ask why civilians would want something we don't give our Troops. How about the C&R eligible (and thus presumptively collectable per Federal law and BATF regulations) M1918 BAR, M-2 Carbine, M1928/M1A1 Thompson, M3 Grease Gun, and M-14? If you lurk on the Civilian Marksmanship Program member forums for a while, you'll see collectors and vintage service rifle competitive shooters pining for the right to more easily acquire these vintage war horses (especially the .308 M-14, because semi-auto knockoffs are currently used at Camp Perry matches, etc.).
4.2.2008 1:02pm
James Gibson (mail):
To Federal Farmer, they probably do crack a book. But which book had this incorrect statement in it. As Tony Tutins points out the idea of officers carrying pistols came over 100 years after the 1792 militia act. And during WW2, due to a shortage of pistols, lieutenents were issued M1 carbines.

To Mr. Young, were am I wrong. Have you ever seen anyone fire a Barrett from the shoulder. Even in the movies they only fire it standing using a sling and the gun down on the hip. And when they have these shoots to get people interested in owning one of these rifles you have to sign a waver for possible spinal damage when firing it just from the prone position.

As for Mr. Michols, you really have no idea what a Davy Crockett is do you. You might read up on it in Nuclear Weapons of the United States By (what was that Author's name) oh yes James Gibson. Shoulder firing a Crocket, what a joke.

As for Zippy, you are right that under the Federal definition the M16 is an automatic weapon. Just as a semi-auto that looses its sear and fires two to three rounds when the trigger is pulled instead of one can get you in a lot of Federal trouble. When AG Cummings wrote his machinegun definition in 1934 he originally wanted any gun that chambered a new round after firing the previous to be a machinegun. That would have prohibited every semi-auto as well and Congress wouldn't agree. Thus, we have the present definition which has gotten a Army reservist in trouble (because a semi-auto he loaned a cadet suddenly fired three shots with one pull). But don't worry, Lou Dobbs is already on that case (god help us).

A lot of old military arms are wanted by true collectors, and these are not effected by the Hughes Amendment in 1986. The prohibition is against full-autos made after 1986 of which none of the guns you mention are. Further semi-auto replicas of the aforementioned arms have also been produced for years until the Federal ban in the 90s. I'm expecting several to come back now that the ban has expired. Finally, no one in the CMP wants a Federal M-14 for a competition shoot. They are less accurate then the semi-auto M1As which have better barrels, glassbedded stocks and improved trigger housings. Further, the new standard for CMP shoots is an AR-15 with all the trimings required by the Clinton CMP board in 1996.
4.2.2008 2:05pm
Dennis Nicholls (mail):
James,

Yes I know you are an engineer at Boeing Huntington Beach Division, just like I was an engineer at Lockheed M&S back during the Reagan years.

However, you seem to have missed the point that I was making a JOKE.
4.2.2008 3:22pm
PeteRR (mail):
James Gibson wrote:

A lot of old military arms are wanted by true collectors, and these are not effected by the Hughes Amendment in 1986. The prohibition is against full-autos made after 1986 of which none of the guns you mention are.


Eh, no. If it wasn't listed on the NFA registry in '86, it doesn't matter what the age is of the Class III firearm. There are millions of collectable vintage MGs floating around in the world. Not to mention the MGs that are in the US, but for whatever reason weren't registered before the '86 cutoff. You hear rumors all the time of WWII trophies turning up when Grandpa kicks the bucket. Which will have to be destroyed or the current owner risks 10 years in Federal lockup. FOPA has created a spiral in prices for the limited pool of registered Class III firearms. A $1000 rifle is going for $16,000.
4.2.2008 3:34pm
zippypinhead:
PeteRR wrote (responding to James Gibson):
If it wasn't listed on the NFA registry in '86, it doesn't matter what the age is of the Class III firearm. There are millions of collectable vintage MGs floating around in the world. Not to mention the MGs that are in the US, but for whatever reason weren't registered before the '86 cutoff. You hear rumors all the time of WWII trophies turning up when Grandpa kicks the bucket. Which will have to be destroyed or the current owner risks 10 years in Federal lockup.
Exactly correct! 18 U.S.C. §922(o) states in relevant part:
[I]t shall be unlawful for any person to transfer or possess a machinegun. . . . This subsection does not apply with respect to . . . any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
In other words, if it wasn't registered under the NFA before the Hughes Amendment took effect on May 19, 1986, it's illegal. Regardless when it was manufactured. This includes C&R firearms.

James Gibson also wrote:
...no one in the CMP wants a Federal M-14 for a competition shoot. They are less accurate then the semi-auto M1As which have better barrels, glassbedded stocks and improved trigger housings.
Really? Sounds like you work for Springfield Armory, Inc., who makes the M1A knockoff. The mil-spec M14 receiver is generally recognized as superior to SA's M1As, which are made by cheaper investment casting. Add a Krieger match barrel and the same sort of National Match modifications they've used for decades with the Garand and 03A3, glass-bed the stock, and the M14 will out-shoot any commercial semi-auto out there (including mouseguns at 300+ yards -- then again, I'm a .30 cal partisan, so there is a wee hit of bias in this assertion). Incidentally, you must have missed the M1A match at Camp Perry, in the vintage category just like the John C. Garand match, or the Springfield and M1 Carbine Matches.
4.2.2008 4:53pm
BobbieG in Arizona (mail):
Well I must thank all the true heroes who have fought this great battle. I do what I can but the lawyers and organizers do carry the ball.

Now we wait to decide what to do next. This is likely to be the friendliest court we get in awhile. All three of our Presidential candidates see our Constitution as more hindrance than help. Their "We the People" means Plato's Philosopher Kings of which they wish to be. They are not our friends.

Again, thank you all.
4.2.2008 5:37pm
James Gibson (mail):
D. Nichols, sorry for miss-understanding but there are plenty of people out there that would actually believe you can fire a Crocket from the shoulder. And there are others who deny the Crocket ever existed. When it comes to nukes I tend to be overly serious.

And as for Zippy, I guess I didn't make my point either. First, why buy an old M-14 rifle that you would then have to do all those modifications to when you can get the semi-auto with all the trimings for less. Besides, I have shot in a CMP Vintage match and the changes you suggest to the other rifles are prohibited. The weapons used in the Vintage matches have to be as the weapon was in service. No Glass bedding, Krieger barrels, or civilian scopes. Those modified guns are in the Creedmore or National Match style shoots. Even the EIC matches have strict rules on how far the rifle can stray from service weapon specs.
4.2.2008 7:56pm
zippypinhead:
BobbieG's post reminded me of the real point of this thread.

Congrats on the honor of sitting at table during the Heller argument, Dave! And more importantly, good work in your role in Heller and on Second Amendment rights generally. I'm confident that all your hard work over the years will pay off on the day the Court issues its opinion!
4.2.2008 8:13pm
zippypinhead:
James Gibson:

If you're shooting at, for example, the John C. Garand matches, yes, the rifle must be "as issued." So? Means you need a military profile barrel, etc., but they don't have to be original; all components other than the receiver can even be brand new as long as they meet spec. And the M14 would qualify in the service rifle category (even with accurizing) because it has not been declared "obsolete" by DoD. Besides, if M14s became more available, CMP would undoubtedly open a "games" class just for them so the black rifle folks wouldn't feel like they were being invaded by crufflers...

But all that's not the main point of this blog. There are other forums more appropriate to debate rifle competition rules. More relevant: §922(o) as a practical matter flatly blocks most of us (non-wealthy) C&R licensees from obtaining vintage rifles meeting the definition of "machineguns" for any purpose. Including collecting, competing, or for self-defense. And Chapter 44 of Title 18 is one thing I do know very well...
4.2.2008 8:44pm
James Gibson (mail):
In that regard lets note that the Hughes amendment does even more harm then you suggest. Under Hughes State Defense forces of the 24 States that operate them cannot be armed with a machine-gun unless the State supplies it. In California, the legislature says only the government will supply such arms. National Guard regulations however say that SDF will only be armed to the equivalent of half the normal size of the State's National Guard unit and only with arms that are substandard or obsolete. Since the M-16 is frontline, and the M-14 is again seeing service in Afghanistan neither meet that criteria. Thus with nothing in Federal storage that meets criteria, nothing will be supplied.

The last time this happened was Korea. California tried to brow beat the Fed into supplying and the Fed just kept saying no. Eventually the State Military Reserve members bought their own weapons which they were allowed to keep after the war ended and the NG returned to California. But now the Hughes amendment would prevent that happening just as the California Assault Weapon act prevents the arming with Semi-autos. The biggest issue being, and Ginsburg somehat mentioned this problem in the arguments, what happens when the arms the men buy no longer serve a military function. In Ginsburg case she was talking about men who became too old to serve in the militia. In the SDF case its because when the Guard returns home the SDF has to be disbanded under Federal law title 10. Even if Hughes allows the SDF members to buy the arm for use in the emergency, what happens when the emergency is over.

Yes Hughes needs to go and I am convinced it wouldn't even stand up to a Miller based review. So wouldn't the California Assault Weapon act if anyone tried to show how the militia would function under its terms. Collective or Individual rights, but laws have a big problem.
4.2.2008 11:27pm
PeteRR (mail):
I'm thinking that completely cosmetic firearm's bans like the California and NJ AWBs will be doomed after Heller. There's a sweet HK416 I'd like to own.
4.3.2008 12:00am