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.