I am one of those persons who was critical of Gura's oral argument, not so much as to his skill as an orator, but more because of policy disagreements I have with him. Also, I became much more critical of his oral argument following the issuance of the Heller opinion, when I realized that the few criticisms I had with the opinion were directly attributable to the admissions made by Gura.
My two main disagreements with Gura's oral argument are 1) he absolutely threw machine guns under the bus unnecessarily instead of remaining neutral on the subject, and 2) he came up with the universally criticized and logically flawed "common use" test that the majority adopted in its opinion.
Below are portions of Gura's argument that I take issue with:
p.59 Gura: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that."
Ginsberg: For example?
Gura: For example, I think machine guns -- It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns.
Contrary to popular belief on this board, Gura did not take a neutral stance on machine guns. He railed against them,
voluntarily offering his opinion that they aren't protected by the 2A. Even if his personal opinion is anti-machine gun, fine, but at least say something like "machine guns aren't at issue here, this case is about handguns and that's all the court needs to consider." Also, no need to bring up machine guns unless specifically asked about them (which sometimes did happen).
p.60 Ginsberg: But why wouldn't a machine gun qualify [under the Miller test]? General Clement told us that that's standard issue in the military.
Gura: But it's not an arm of the type that people might be expected to possess commonly in ordinary use. That's the other aspect of Miller. Miller spoke about the militia as encompassing the notion that people would bring with them arms of the kind in common use supplied by themselves.
Again, even in the face of the logical argument that the Miller test would protect machine guns, Gura twisted Miller into a new test. This is the first instance of Gura starting to reveal the "common use" test.
p.61 Gura: However, the fact is that Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of --
Gura again brings up the common use test. Even if you are anti-machine gun, I hope you can appreciate what a slippery slope this test causes. Government could simply outlaw "assault rifles" for instance and claim they have no common civilian application.
p.62 Gura: it's hard to imagine how a machine gun could be a "lineal descendent" to use the D.C. Circuit's wording, of anything that existed back in 1791, if we want to look to the framing era.
Ridiculous argument. Gura, imagine this -- "The musket was the standard long arm used by the common infantry in 1791. The machine gun is now the standard long arm used by the common infantry in 2008." Again, Gura knocks machine guns for no reason.
p.63-64 Gura: And the better guidance would be to emphasize the common sense rule that I think judges would have really no trouble applying, and we do this all the time in constitutional law: To simply make a decision as to whether or not whichever arm comes up at issue is an arm of the kind that you could really reasonably expect civilians to have.
Now he wants our judges (yeah, those tremendous guardians of our RKBA) to apply their own reasonableness standard as to what weapons us civilians should have. No thank you.
p. 65 Gura: The legislature has a great deal of leeway in regulating firearms. There is no dispute about that.
Thanks for that needless admission. That'll come back to bite you in the ass.
p. 75 Gura: We don't have a problem with the concept of licensing so long as its done -- so long as the licensing law is not enforced in an arbitrary and capricious manner, so long as there are some hopefully objective standards and hopefull some process for --
Once again, why make any admissions as to other laws not applicable here. Simply say it doesn't apply to this case, the court can work on that question in the future.
p. 76 (as to age limits) Gura: I don't think there is a problem with requiring a majority age 18 and then 21 for rifles.
Happy to see that Gura has no problem setting a minimum age limit of 21 for rifle possession.
p. 77 Stevens: Are you, in effect, reading the amendment to say that the right "shall not be unreasonably infringed" instead of "shall not be infringed"?
Gura: There is that inherent aspect to every right in the Constitution.
Stevens: So we can -- consistent with your view, we can simply read this: "It shall not be unreasonably infringed"?
Gura: Well, yes, Your Honor, to some extent, except the word "unreasonable" is one that troubles us because we don't know what this unreasonable standard looks like."
Thank you Gura for rewriting our 2A to include the reasonableness standard. Right after this exchange, Scalia jumps in and points out his error.
p.81 Kennedy: But just to be clear -- and I don't want to misstate your position, but my understanding -- or I at least inferred -- that you would consider it reasonable to ban shipment of machine guns and sawed-off shotguns in interstate commerce?
Gura: Yes, Your Honor.
One last chance to redeem himself, but no, sticks to the same story.
I've laid out my beef with the argument. Feel free to chime in and defend these remarks by Gura.
