Machine Guns and Heller, Oh My!

Sorry about the title, that was weak.

Update: Mr. Gura responds to the critics. Actually, it sounds like there were some pretty vociferous complaints from some. I’m sure he’s not losing any sleep over my comments, but I want to reiterate that my criticism was not intended to be a condemnation. I think Mr. Gura did an admirable job and I don’t envy him the balancing act he had to perform. I may very well be way off base with my criticism…I’m no lawyer and I’m definitely not versed in the reindeer games associated with the Supreme Court. I believe the point that I addressed could have been handled differently, but that’s just my inexpert opinion and I offer Mr. Gura and the Heller team my thanks for a job well done. [/Update]

I’ve been involved in this discussion on a couple of blogs over the past day or so so I thought it appropriate to just bring it over here and lay out my case for everyone to see.

First of all, I’m not condemning Mr. Gura or the Heller team. I think they did an admirable job of defending the position of their clients. It’s very easy to sit back and criticize from the wings when not the one standing in front of 9 Supreme Court Justices.

With that said, however, doing a good job does not mean that we can’t point out things that we think could have been done better and perhaps learn from them going into the future.

The main gist of my criticism is summed up in comments over at Random Nuclear Strikes:

The problem wasn’t that he tried to downplay the “machine guns” implications of ruling that the Second Amendment protects an individual right, that was completely understandable as it is a question for another day. The problem was the WAY he did it.

He blatantly misinterpreted Miller and embraced circular logic in an effort to dismiss the validity of the “machine guns” argument.

His contention was that Miller limited those “arms” protected by the Second Amendment to those that have a “common civilian application.”

That’s exactly the opposite of what Miller held. Miller determined that a short barreled shotgun was not protected because it had no common MILITARY application. The “in common use at the time” test means in common MILITARY use at the time, not in common CIVILIAN use at the time.

It is a disingenuous…and flat out incorrect…argument that could do harm to our cause long term.

Second Part of his justification was that…because of his flawed interpretation of the Miller test…machine guns aren’t protected by the Second Amendment because they aren’t in common use at this time.

They aren’t in common use at this time because the NFA and the Hughes amendment put them out of reach of common people.

That would be exactly the same as DC arguing that their handgun ban is perfectly OK because no one in DC legally owns any handguns anyway.

Circular logic.

I would have had no problem with him downplaying the machine gun issue because that was not the question before the court…but I DO have a problem with him using disingenuous arguments that may be detrimental to our cause long term.

Sebastian’s latest post challenged those of us voicing criticism of Mr. Gura’s position to describe what we would have had him do:

I’ll leave the comments open for folks who want to outline ideas for how to make the distinction between arms that are protected by the second amendment, and arms that aren’t, that meet the standard laid out by Dave above.

I actually started to do this in comments but decided to go with a post on the subject.

I think Mr. Gura probably brought up the subject of machine guns preemptively and it would have been brought up by the justices had he avoided it, but I don’t believe that he should have offered it up as easily as he did, nor did he need to go there in the way that he did.

The setup was:

JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms “under law.” And since he uses the words “under law,” he clearly foresees reasonable regulation of that right…

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.

JUSTICE KENNEDY: That are not appropriate to –

MR. GURA: That are not appropriate to civilian use.

JUSTICE GINSBURG: For example?

MR. GURA: For example, I think machine guns…

I can think of plenty of examples he could have used other than machine guns…say, anti-aircraft missiles, nuclear weapons, 105mm Howitzers…why did he have to go directly to Machine Guns?

The justices would have, of course, brought up machine guns at some point. That’s fine…but why offer them up sacrificially at the get-go?

After the subject of machine guns was broached by the justices, my response would have been something like:

Our position is that the State can make a very compelling argument for the strict regulation of machine guns based upon an over-riding interest in public safety. Handguns do not fall into the same class as machine guns because, although they are used often in crime, they are also uniquely suited for self defense. Strict regulation of machine guns would most likely survive even a strict scrutiny review because of the compelling state interest in public safety. The Handgun ban does not survive under any level of scrutiny because of their inherent utility for self defense…especially among the small, the weak and the elderly who are the most vulnerable…and the basic fact that crime and murder statistics necessarily ignore the benefits derived from the lawful use of handguns for self defense by private citizens.

Probably not a perfect argument, but I’m not a lawyer and I just whipped it up in a couple of minutes. The bottom line is that I think the response could have been as simple a matter as leaving open the possibility (or probability) that the state has enough of a compelling interest in public safety to meet the criteria of strict scrutiny with regard to the current federal restrictions on machine guns.

Furthermore, I don’t think he needed to go with the “B” word. Why suggest that a BAN of machine guns is appropriate when under current federal law, they are not banned, only very strictly regulated? Justice Breyer, even in asking the question, only referred to “regulation,” Mr. Gura was the one who couched it in terms of a ban.

He could have very easily made almost the identical argument without condoning the banning of anything.

But, with all that said: that doesn’t mean I’m condemning him or saying that he blew it…he didn’t. I think he did an admirable job in all other respects.

A couple of times when the justices asked him questions I cringed because I was afraid that he wouldn’t have an adequate answer ready. He handled each and every one of those instances with alacrity and confidence. I was very impressed with the majority of his performance. His casting of machine guns upon the sacrificial alter was the only part with which I had a problem.

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