Winning at what Cost?

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Published on Sunday, 06 April 2008 17:42

Written by Daniel White

The Knox Report
From the Firearms Coalition


By Jeff Knox

(25 March, 2008) Now that people have had an opportunity to hear and read the transcript of the oral arguments in the DC gun ban case (links are available at FirearmsCoalition.org,) there is much righteous indignation about some of the comments of Alan Gura, lead council for the pro-rights side. During his thirty minute presentation, Mr. Gura made a number of excellent points and generally handled himself admirably, but under questioning by Justice Breyer, Gura stated that, “the government can ban arms that are not appropriate for civilian use. There is no question of that.” He went on to defend that position as being consistent with the Court’s holding in the Miller case because in that case the Court stated, speaking of the militia, that, “when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

Both Gura and Justice Scalia used the phrase, “common use at the time,” to support a position that machineguns, such as the selective fire M16’s that have been standard issue for the U.S. military and National Guard for the past three decades, would not be “protected” by the Second Amendment because such weapons are not very “common” among civilians. This argument is clearly specious because the only reason these guns are not much more common is that the government instituted a ban on any new guns being allowed to be privately sold. Since the semi-auto version of the M16, the AR-15, is the most popular rifle in the country, it is not a stretch to suggest that the selective fire version would also find a broad market – if government regulations did not forbid their sale.

I originally thought Gura’s statement was just a mistake caused by the stress of the situation and an unexpected line of questioning from Justice Breyer, but that is clearly not the case. After reviewing the transcripts, it is obvious that this was a calculated maneuver on Gura’s part to undermine the case for “lower scrutiny” put forward by the Solicitor General. The SG had suggested that if the Court accepted the lower court’s contention that the Second Amendment should be judged in the same manner as the First Amendment or the Fifth Amendment, and not be toyed with on a case-by-case basis in the lower courts, federal gun laws could be at risk. He asked the Supremes to recognize the individual right to arms, but to let the lower courts decide what constitutes infringement because he fears that the Circuit Court’s position, that a class of weapons, such as handguns, once determined to be “lineal descendents” of weapons common to militia service, fall under the protections of the Second Amendment and may not be banned and possibly not even restricted. The Solicitor General feared that such a standard would place federal gun control laws, particularly the 1986 machinegun ban, in jeopardy. He correctly noted that the ’86 machinegun “freeze” was analogous to DC’s handgun ban and asserted that it would be difficult to defend if the Court accepted the Circuit Courts “strict scrutiny” standard.

Gura obviously wanted to mollify members of the Court who were concerned about unrestricted public access to machineguns, and wanted to demonstrate his side’s willingness to be “reasonable” about the way the Second Amendment is applied. In comments after the arguments were presented, Gura admitted as much and stood by his decision to do so.

Hearing Gura’s statements – and the arguments not made – can be very frustrating and disconcerting for committed gun rights advocates. We wonder why Gura didn’t simply tell the Justices that they didn’t have any choice in this matter; the Constitution is clear, the history is clear, the application is clear, machineguns are absolutely the exact type of weapon that should be most protected by the Second Amendment and if “the People” don’t like that, they should set about amending the Constitution.

Of course the reason Gura did not tell the Court these things is that it could have lost him his case. The fact is that though Gura’s statements and omissions are infuriating to serious rights activists, and they are likely to be repeated by the press and the Brady Bunch every time there is an argument about machineguns, Gura’s performance has little or no bearing on the next Second amendment case. All that really matters is what the Court says in its decision and, thanks to the efforts of Gura, Levy, et al, a clear statement from the Court that the Second Amendment really is about an individual right and that DC’s laws are overreaching is probably on the way. Whether the justices will have the integrity to maintain the same standards for the Second Amendment that they apply to the First and Fifth, is still up in the air, what is certain though is that this is just the beginning. We can look forward to decades of constant litigation on the Second Amendment all of which will be built on the foundation of this decision.



Permission to reprint or post this article in its entirety is hereby granted provided this credit is included. Text is available at www.FirearmsCoalition.org. To receive The Firearms Coalition’s bi-monthly newsletter, The Hard Corps Report, write to PO Box 3313, Manassas, VA 20108. ©Copyright 2008 Neal Knox Associates

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