Heller Oral Arguments Discussion

[Deavis]

Put another way, RKBA rhetoric has been perfected and reiterated endlessly in the last few decades in response to gun control legislation... but the question is how many minds has it changed?

As I said earlier, there are reasons why some of Gura's statements could have been phrased better without hurting his case at all but that is just my opinion and neither here nor there. You can restate your argument again, but I think you are missing an important point. The statements he made, which I think most people understood are a footnote in the case toy ou, still matter despite your ascertations otherwise. Maybe you don't care because you only want to discuss the legal angle but to do so is naive given the history of gun control or any other big issue that hit the court. The fight over gun rights isn't going to be won in the court alone and is actually, IMO, probably the worst place to be fighting for those rights.

Why then are the arguments Gura made important? Well, those statements turn into fodder for antis later and are used. The soundbites that get played and the snippets that get printed in papers are the ones that will sell papers. How many times have soundbites from Fenty and his police chief hit the news? Nothing they said is law, but it matters in the real world. The courthouse does not exist in a vacuum. Those statements influence people, their positions, and ultimately their vote. They'll back candidates strong on gun control, who will push for legislation, and who will push for judges that will use every twisted legal argument possible to keep gun control laws in favor.

The court system is hardly pure on either side of the spectrum. Despite your ascertation that the courts are insulated and thus have the moral backing to affect public opinion that is hardly reality. Brown v. Board hardly eliminated racism and if anything stoked it. Roe v. Wade has not calmed the fires there. This isn't a case involving a nuance of the law concering a contract, this is an emotional issue. Racism was not put down in America because of Brown v. Board, it was put down by people standing up for their rights and enduring punishment that was broadcast all across America. IT was influential citizens changing the minds of other citizens which led to a change in the way people operate. Public opinion will not be changed because of a ruling, it will be changed because of people working on the ground to change hearts and minds. If they don't, you'll get an amendment nullifying the 2A making your court decision useless. I'll point out that the public elects the people that can make amendments and appoint judges. If enough people are pissed about how this ruling goes, on either side, why couldn't they push for an amendment to favor their position? Then all the legal wrangling is moot.

Further, it doesn't matter that Gura can retract them later to support another case, that will never get printed. It doesn't matter how many people claim Gura said what he did just to get his case ahead, that won't be broadcast. If anything, it will discredit him if he tries to retract them later. The only thing that will be broadcast are the things he said that support many schemes that antis have tried using for years. Again, I realize why he did what he did and understand the legal distinctions you keep making, however, I think you are so caught up in the legal side of your argument that you miss the soft side of it.

Don't think that rhetoric is effective? Look at the change in numbers over time thanks to rhetoric. 22% drop in people favoring stricter laws, even after the AWB sunse. 12% rise in people who believe guns make homes safer.

http://pewresearch.org/pubs/443/the-nras-image-improves-as-support-for-gun-control-slips

There are other studies as well, that is just one of many that had a decent graph. There are others showing less support for the banning of handguns, lowering of women demographic that favors banning guns, etc. MY main point is that if public support for gun control is non-existent, then you won't get gun control laws passed. If laws aren't passed you don't have to fight them in court. Going to court is expensive and time-consuming and it is smarter to head off the problem at the pass. Would you rather treat the symptoms or cure the disease? There hasn't been any major legislation since the AWB that has hit despite multiple public shootings. It would be nonsensical to ignore the effect of public opinion, which translates into voting patterns, in keeping legislation at bay despite some horrific shootings recently.

I understand your poistion and arguments, I think you are shortchanging the human aspect because it interferes witht he precision of your legal bent on the issue.

 

[ahellers]

simply perfect-

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 with handguns, 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.

 

[Seekerrr]

I admire people with the confidence of their position(s) being so obviously correct that they can dismiss the deeply-held convictions of others as little more than emotional rhetoric. No, really, I do admire that level of confidence. I don't, however, agree with the conclusions it produces.

I identify totally with the take that Deavis just articulated. There are people who read, think, contemplate the court in all its nuanced glory, and then there are those who simply *do*. I prefer to do my part to influence public opinion with the confidence that it is more powerful than any nuanced presentation before the SCOTUS. I don't believe that I am engaging in rhetorical banter when I stand for my rights as I know them to be intended by the men who paid so dearly for them to be secured.

When asked about registration, licensing, machine guns etc., Gura could've just as easily said, "Your Honors, I respectfully decline to go there as it is not pertinent to my client's case that is before you now." He didn't have to throw us under the bus. There were myriad options for him. The very first media-type to hold up his concessions as proof of the legality of severely restricting the free exercise of the 2nd Amendment will do more harm to public opinion, give more strength to gun-grabbers and more confidence to run amok legislators than any avoidence of the questions on those subjects could've ever produced. I think he screwed the pooch.

Seekerrr

 

[Carl N. Brown]

Before we get all excited, remember:

HAROLD E. STAPLES, III, PETITIONER v. UNITED STATES No. 92-1441
SUPREME COURT OF THE UNITED STATES
Argued November 30, 1993.
Decided May 23, 1994.

(the decision on NFA 34 as criminal law requiring a showing of mens rea)
The SCotUS is a deliberative body and they ... uh ... deliberate before rendering decisions. We may be speculating about this for some time.

 

[Titan6]

That was only six months. I can live with six months.

 

[Sheldon J]

^*&# DC Mayor

Flat out lied about how crimes have decreased in DC since they enacted this law and no one brought him to task on this fallacy!:banghead:
Then the Bradey boy flat out admitted that no citizen could be trusted with a gun!!!

 

[Bartholomew Roberts]

As I said earlier, there are reasons why some of Gura's statements could have been phrased better without hurting his case at all but that is just my opinion and neither here nor there.

I think it is here and there. You seem to be confusing what is legally prudent with your desire to have Gura present the best case for gun rights. You make a valid point that you must educate public opinion on these issues if you want to advance gun rights; but I think you miss the point that oral arguments in Heller are the wrong place to do that on the broad basis you want to see.

The fight over gun rights isn't going to be won in the court alone and is actually, IMO, probably the worst place to be fighting for those rights.

Exactly. So why start more of a fight than is necessary to achieve your immediate legal goal? The legal battlefield isn't divorced from the public opinion battlefield; but you need victories in both to advance. You do not get those victories on the legal side by addressing every argument related to guns and I think you have over-valued any comment Gura might have made.

Will antis try to use his words against us? Sure they will, they will use anything they can possibly think of. Look at some of the ridiculous arguments proffered in this case for an example. The key question here is not whether the antis will try and use or own words against us (notice how they cited gun rags for the proposition than handguns are inferior defensive weapons?), the question is did Gura give them anything effective to use? I disagree with you that he did. He said that bans on machineguns and laws requiring registration were reasonable, yet anybody here can think of 20 reasons both are not reasonable. What is the other side going to do in response? Say "But Alan Gura said so!" again and again?

Gura did what he had to do to bring the case back on to the core issue of whether the 2nd protects an individual right. He did it as quickly as possible and tried to keep the appeal as broad as possible to the many Justices on the court who aren't fond of the 2nd. The public opinion battle is for another place and time.

 

[PaladinX13]

Gura could've just as easily said, "Your Honors, I respectfully decline to go there as it is not pertinent to my client's case that is before you now."

It wouldn't be wise. Again, they've had the briefs for months. They've poured over the issue and the books. When you have liberals pointing to legal treaties from the 1800s and citing originalism of all things for their arguments, you know they've done research and aren't arguing politics... they're arguing the law, even from their slant. The Justice knows there are only 30 minutes to grill any individual, 8 other justices to share his time with, and thinks his question is pre-eminently important when asked because he's parsed it with his clerks and distilled exactly what points he wants to address. At that point, there's no prudent or honest way you can say the above "respectfully".

To me, it makes it clear that you guys just wanted to hear what you wanted to hear. Well then, if that's true, why isn't it any more reasonable that the Justices just wanted to hear what they wanted to hear? If then, you have a choice between throwing your client and case under the bus to satisfy rhetoric at the expense of legal precedent OR satisfying a justices' inquiry- who will be making precedent- at the expense of rhetoric, which would you chose?

Deavis makes his clear choice. He says that the Courts have little impact and can't make change... that their only influence is political and therefore should be used to their limit to spout rhetoric. He forgets one thing. If that's true, BOTH sides have equal force of rhetoric during a case which produced only 5 min segments for ONE news cycle... placing your eggs there is not wise when the case will have only ONE WINNER which ENDURES if based on legal principles and not rhetoric (a purely political decision is subject to being overturned far more easily by a future court).

The change in attitude proves that the LAW changes minds because it gives a foothold to rhetoric and comes with a presumption of the people's will and of impartiality when court approved. Do you think the rhetorical arguments changed after AWB? After Brown? After Roe? Hardly. It was the LAW that changed and along with the people behind it, attitudes slowly changed. NYC is a great example because until the 1970's they could have riles on the backs of children on the subway on their way to school without incident. Then legislation took that away. Crime spiked. We had the Goetz case. But now, despite the SAME rhetorical arguments persisting, despite empirical change in the harm to be prevented, despite outrage by the people... because the law changed, attitudes did, and the thought of school kids with guns in NYC is UNTHINKABLE.

Rhetoric can grow louder, certainly, but the arguments themselves have little impact. This doesn't mean individuals don't have impact. The Civil Rights movement worked because of legal maneuvering AND- no, NOT rhetoric- sacrifice... protest, demonstrations, sit-ins, etc. came at a cost which impacted and influenced the legislature and other elected representatives to act even without the full agreement of the people. Blowing into a mike or panning your own guy on an internet forum has no such impassioned element of conviction or cost with which to move hearts. To that end, victims of "gun violence" will always have the advantage in showing loss, cost, and genuine price. That is why it takes a stoic and reasoned law to step above the populations' willingness to exchange rights for false comfort.

The law changes attitudes. It's not because of people marching in the streets you buckle your seat belt reflexively every time you get in your car when that was not the norm before. It's not because someone inducted them into the Million Mom March that a person thinks guns are unnecessary and weird, but because legislation has denied them access since birth. It's not because of TV sound bites the majority of people have come to terms with Roe, it's because it's the law (which is why it is difficult, even for this present court to overturn it).

Rhetoric is a tool and it's always been there, but unless you're willing to pay a cost which impacts people, it's just noise... puffery to make you feel better about a position and show how another position is inferior. Americans are callous to that hearing it from both sides constantly. The precision of that noise is practically meaningless and it's silly to harp on it because I have yet to see a single anti-gunner cite to Gura's concessions for their own sake. I have yet to hear a single sound-bite so overwhelm or impact the nation's conscience on this or any other topic of substance. Why obsess over a fear that has not and likely will never manifest?

No. Only one side actually WINS. That win goes into the history books. That win shapes public perception. That win changes attitudes. That win becomes law.

 

[buzz_knox]

When asked about registration, licensing, machine guns etc., Gura could've just as easily said, "Your Honors, I respectfully decline to go there as it is not pertinent to my client's case that is before you now."

This is a great way of losing your case. Judges ask questions because they want answers. How you answer it is as important as what you say. The judge gets to decide what is or is not pertinent. An attorney can always argue why something is irrelevant, but he'd better answer the question as asked, and then deal with the aftermath.

If an attorney gave that response to a direct question asked by a Justice of the Supreme Court, that attorney better start contemplating a new career.

 

[green-grizzly]

If Gura was going to throw machinegunners under the bus, I think he didn't do a very good job of identifying why pistols are worse than M16s. Both are in common military use. Maybe one is not so useful for civilian use, but the judges do not know much about that. Dellinger even said pistols are worse than machineguns.

I don't think a standard which defines a protected arm as one that you could reasonably expect a civilian to have is going to help us in the long run. I could very easily see a judge thinking that a pistol is innapropriate under that standard. All firearms could be banned under that standard so long as reasonable people agree (by the way, none of you gun nuts are reasonable).

The Parker decision's lineal decendent standard (arms are rifles, pistols and shotguns) was much better, and it would not be hard to give some bogus reasons why machineguns would not be included under that definition to mollify the court.

 

[Thumper]

I admire people with the confidence of their position(s) being so obviously correct that they can dismiss the deeply-held convictions of others as little more than emotional rhetoric.

Perhaps surprisingly to you, Seekerr, the people actually getting the job done hold precisely the same deeply-held convictions. They also know the path and method necessary to move our agenda. Preaching the gospel as we know it to be is not the way to move SCOTUS.

No one got thrown under the bus. Machinegunners win when Heller wins.

I'd also admonish everyone here to carefully read what Bartholomew Roberts and Buzz Knox have to say on these issues. These two are seldom wrong when it comes to gun issues before the courts.

 

[Vibe]

I personally don't think ANY infringement upon the "keeping" or "bearing" is justified. The subject of "use" however is open to all sorts of regulation. I think that that attitude would nicely defuse even the objections to MGs.

 

[Thumper]

Gura's reply (not to me):

Please pay attention if you don't like what he had to say in orals.

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."

Thanks,
Alan

Guy knows the score. I wish all of our "friends" were this politically astute and effective.

 

[riverdog]

Ditto. Gura's ability to stay on point will have him arguing before the Supremes again. He did an excellent job.

 

[Wineoceros]

Absolutely. It's amazing how many people are only capable of thinking in black-and-white, and even then only in terms of what they want reality to be, rather than what it actually is. Even the Constitution itself was arrived at via an enormous amount of compromise, deal-making and general recognition of political realities...rather than a stubborn adherence to pure ideology, which would have precluded the possibility of any useful progress at all.

 

[seeker_two]

From what I've heard so far, Gura's doing a good job arguing Heller's case....the case he was hired to and has the responsibility to his client to win.

If GOA or anti-922(o) clients hire him, he'll represent them to win as well.

 

[SWMAN]

So, does this mean I won't be able to buy my SAW from my favorite DC gun dealer in the next couple of months?

 

[publius]

Interesting note from Gura, Thumper. I was surprised when reading the oral arguments transcript that it seems Scalia thinks machine guns are not 2A protected weapons because they are not common, which is because they are so restricted by law. It's a strange twist of logic: they lost their 2A protection from becoming illegal by becoming illegal.

I wonder about his contention that all 9 Justices are opposed to machine guns. Specifically, I wonder whether Alito would have written what he did in his Rybar dissent if he had an anti-machinegun animus. Also, I wonder how anyone can know what Clarence Thomas was thinking at oral arguments, since he says nothing.

 

[Wineoceros]

Interesting note from Gura, Thumper. I was surprised when reading the oral arguments transcript that it seems Scalia thinks machine guns are not 2A protected weapons because they are not common, which is because they are so restricted by law. It's a strange twist of logic: they lost their 2A protection from becoming illegal by becoming illegal.

Although "common" is a subjective term, by any reasonable interpretation of it I don't think you can say that machine guns have ever been a commonly-owned weapon among the population as a whole. So while they might become common were the regs lifted, I don't think you can argue that they became UNcommon because of said regs.

 

[Vibe]

I don't think you can argue that they became UNcommon because of said regs.

Of course you can. It was the stated purpose of those regs when the NFA was proposed. As I recall in reading it, almost the exact same verbiage was used then as is being used now in reference to handguns. That verbiage is being used now exactly because it proved to be so effective then.

 

[Wineoceros]

Of course you can. It was the stated purpose of those regs when the NFA was proposed.

How can you make "UNcommon" something that was never "common" to begin with?

 

[Vibe]

The NFA was proposed and enacted simply because they had become too common, (well too common for many peoples comfort) and too commonly used. Remember Prohibition? and the "roaring 20s"? Bonnie and Clyde? Pretty Boy Floyd? The St. Valentines Day Massacre? The NFA was enacted in 1934, prior to that machine guns were not that hard to get. But that's actually beside the point because even today they are very common...in Militia (or Military) use.

One could conceivably argue that the NFA '34 was enacted and passed simply due to the publics reaction to the Governments tyranny in enacting Prohibition. The "population at large" rebelled using the "arms common at the time".

 

[Wineoceros]

You seem to have gone off on something of a tangent here, and lost sight of what is being discussed. Scalia said that MGs are not "common"ly owned by citizens, not that they aren't common in military use (he's not an idiot.) And your description of MGs being "too common"ly used by notorious criminals of the day is not even remotely close to the meaning of "common" under discussion here. Which is, "common among the population at large". It's very "common" for doctors to own stethoscopes, but that instrument cannot be said to be a "common" item in U.S. households.

 

[Vibe]

You seem to have gone off on something of a tangent here,

We can agree that one of us did.

And your description of MGs being "too common"ly used by notorious criminals of the day is not even remotely close to the meaning of "common" under discussion here.

I disagree. Just as it is today, criminals were not the only ones in possession of those types of weapons. Many more were in the possession of people who obeyed the law. Had they not been seen as "common" no law would have been seen as being needed to change that status. By your argument firearms (in total) themselves have not been "common" for quite some time, much less MGs. But again, I hold that that is a manufactured state of affairs. By certain factions of Government and media.

 

[gc70]

IANAL but here is my reaction to the oral arguments.

Dellinger: tried to change course too much in response to questions, but was not very nimble or effective doing so.

Clement: very responsive to questions and effective in answering 'individual right' questions while making shallow arguments to defend existing federal gun laws.

Gura: had a message and delivered it, but was not as responsive to questions as the other two.

<asbestos underwear>
Clement's arguments may be the most influential for RKBA.
</asbestos underwear>