Heller Oral Arguments Discussion

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those that denounce Gura out of hand because he didn't try to grandstand
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Because he wouldn't grandstand? or because he was throwing every alleged "grandstanding" talking point under the bus before the subjects even came up?
 
Consider the development of firearms from single shot black powder from which technology has advanced all the way to miniguns. Are you saying that if select fire rifles were on the shelf people wouldn't buy them?
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I don't know why some people go so far out of their way to ignore what has been plainly stated in order to read into someone's comments things they have not said. Here's what I said:

Machine guns have never been common firearms in terms of private ownership. This was true before federal regulation of them, and it is still true. One can reasonably argue that it is more true today because of the federal regs, but the fact is that those regs did not cause them to become UNcommon, because they were never common to begin with.
 
Establishing an individual right that already exists is not a win.
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I am so happy that George Washington, Thomas Jefferson, James Madison, Ben Franklin, et al. all thought differently.
 
The protection of a right should have absolutely nothing to do with how many instances of a product category constitute "common" - especially when that category, just coming into existence as potentially "common", promptly got regulated out of existence.

If those items not "common" can be banned for not being "common", then OF COURSE THEY WON'T BECOME COMMON. We'll never progress forward! Would it have been reasonable to ban "bolt actions" because at the time they were introduced they were (obviously) not common? The reasoning just tries to justify the absurd "only protects muzzle-loaders" BS some other way.

The M4 is standard issue, quintessential armament of the common soldier.
That they were never common (in civilian hands) to begin with is a moot point. Remove the ban, and they'll become "common" practically overnight.
Making a moot point makes people wonder what you're sneaking up to.
 
THUMPER,

"Gura's reply (not to me):

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

Do you have a link from whence this came?

I would LOVE to read more comments to/from Gura.

Thanks!!
 
Wineocerous said:
Machine guns have never been common firearms in terms of private ownership. This was true before federal regulation of them, and it is still true. One can reasonably argue that it is more true today because of the federal regs, but the fact is that those regs did not cause them to become UNcommon, because they were never common to begin with.
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I agree completely.
However, because MG's were a relatively new invention (only 16 years had elapsed between the first war fought with them and the ban and the Tommy Gun was a model 1927, IIRC and only 7 years old) it begs the question as to whether the MG ever had a chance to become "common".
I would venture to guess that had the Depression not happend when it did and had NFA'34 not happened when it did, MG's along the lines of the Tommy Gun might very well have become as common as shotguns and handguns. As it is, we will never know for sure. It is a moot point and I doubt if it could be argued to a definitive answer.

We are stuck with what "is". And what "is", is Gura, IMHO, performed admirably for his client and has given the antis something to worry about. We also have a possible toehold to move forward to dismantle the decades of guncontrol laws one by one. I, for one, believe that's a lot more than we had a few days ago.

My $0.02, FWIW.

Poper
 
However, because MG's were a relatively new invention (only 16 years had elapsed between the first war fought with them and the ban and the Tommy Gun was a model 1927, IIRC and only 7 years old) it begs the question as to whether the MG ever had a chance to become "common".
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Quite true. And not at all a position I was contesting. Then again, how many of us wouldn't have at least one RPG in the safe if we could ;)
 
As I'm listening to this finally at the Oyez website, which is nice because it shows the conversation in written words. I'll post some stuff I thought was interesting.

JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a... as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State-managed.
But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons... that was the way militias were destroyed.
The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
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not necessarily a State-managed militia because the militia that resisted the British was not State-managed.

Good point to show that the National Guard (which is a rather recent invention is NOT the militia.)


but by taking away the people's weapons... that was the way militias were destroyed.

Very true.


The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

Very nice.
 
JUSTICE KENNEDY: But the Second... the Second Amendment doesn't repeal that.
You don't take the position that Congress no longer has the power to organize, arm, and discipline the militia, do you?
WALTER DELLINGER: No.
JUSTICE KENNEDY: So it was supplementing it.
And my question is, the question before us, is how and to what extent did it supplement it.
And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.
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This is good.
 
As I understand it the National Guard is not in any way "The Militia", They are not paid by the state and when called into service are part of the National Armed Forces.
 
As I understand it the National Guard is not in any way "The Militia", They are not paid by the state and when called into service are part of the National Armed Forces.
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The source of a militia's funding is irrelevant as to whether an organization is considered a militia. Rufus King, a Massachusetts delegate to the Constitutional Convention of 1787, when discussing the meaning of the Militia Clause in the Constitution said, "arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury..." (Elliot's Debates) This founder's statement clearly shows that regardless of how the militia was armed, it was still a militia.

Nowadays civilians are generally not allowed to keep military arms, but that is a separate issue. Originally, regardless of how the militia was armed or funded, the Second Amendment was ratified to ensure the right of the people to keep their own arms (after all, federally supplied arms could be withdrawn).

However, as you stated (and I did previously) that when the state NG's are called into federal service they are no longer militia, but are part of the army. Also, however, as mentioned previously, when in the service of the states they are functioning as militia. And again, this is meticulously explained in the Supreme Court decision Perpich cited previously.
 
Has anybody brought up the point that using rifles as self defense in Washington DC could cause injury/death to people in nearby residences? If DC is that worried about safety, they don't think very well.
 
According to Ronald Mann, a professor at my law school who was a Supreme Court Clerk, cases cannot be won on oral argument. However, he said that you can lose a case on oral argument by saying something stupid. He proceeded to tell us about some death penalty case where Alan Dershowitz said something really stupid, and basically lost the case because of his oral argument. He said that all of the clerks knew how their respective judge was going to vote on a case the moment certiorari was granted.
 
Heres what I don't get. How Gura could not define what "keep" and "bear" mean.
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It is a question laden with traps. Why don't YOU define "keep" and "bear" in an oral argument in 30 seconds so that it will stand up to further scrutiny by judges eager to trip you up. No doubt, DC residents were allowed to "keep" and "bear" long arms .... disassembled and with trigger locks... in their own homes. You see what I mean? It is not as easy a task as you might think. It is like defining "freedom of speech" in 30 or 40 seconds. Go ahead and have a try at that, too.
 
I've been re-reading this thread and found Gaiudo's estimations of the Justices interesting.

From Gaiudo's post#256:
Then there is the mind of Thomas... how I could have heard what he was thinking. Perhaps he'll write a book on it some day.
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From: http://justicethomas.blogspot.com/
"This is my 17th term and I haven't found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn't Perry Mason."
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I think Thomas leaves little to the imagination, no?
I really like this guy!

Just my 2 cents.

Poper
 
Thomas didn't say anything, but he apparently did find Scalia's skewering of Dellinger to be pretty funny:
Scalia asked if permissible limits could restrict you to one gun, or only a few guns, or if a collector couldn't complete a set like a stamp collector because of a quantity restriction, and then launched into a demonstration of his familiarity with firearms by suggesting a need to have a turkey gun, and a duck gun, and a thirty-ought-six, and a .270, which sent Thomas into a fit of off-mic laughter that other observers missed because they were focused on Scalia;
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http://www.aim.org/guest-column/heller-gun-rights-case-goes-better-than-expected/
 
Heres what I don't get. How Gura could not define what "keep" and "bear" mean.
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Because he did not have to go there. If he had to go there, then there are some unpleasant things which he would have to address. Specifically the debates in the 1st Congress concerning the CO clause.

It is a two edged sword, the debates raise a spector that is not helpful to our side in some respects, however other aspects of the debate are similarly not helpful to the other side. Thus niether side choose to open up that can of worms... and since none of the justices opened that can of worms either, the question remained unasked and unanswered.
 
...He said that all of the clerks knew how their respective judge was going to vote on a case the moment certiorari was granted.
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So, you can lose at oral, and the briefs mean nothing?

Hmmm...
 
So, you can lose at oral, and the briefs mean nothing?
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In a case like this? Maybe. Look at how long a 2A case has been building up. It even came up at Robert's confirmation hearings.

I suspect a fundamental issue like this is pretty clear in the minds of the Justices.

Let me ask it this way. Given what YOU believe about the Second, could a bunch of lawyers change your mind?

They could not change mine, not in a million years. My understanding and belief of what the Second says is clear as a bell in my own mind and there is little anyone could do to even make a dent, let alone change my fundamental position.

I suspect most of us are the same way, and I suspect a good number of the Justices, if not all, are the same as well.
 
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