Heller History

[Charles L. Cotton]

Now I have a question for you. For years, you have preached that the NRA compromises too much; that it sold us out on the machine gun issue. While I could not disagree with you more on these issue, tell me why you have not made so much as a peep about your libertarian brethren on the "Levy team" doing far far worse. Libertarian Gura conceded in oral argument that machine guns are not protected under the Second Amendment. Where is your condemnation of Gura?

If you will quote him exactly, I will either condemn him, praise, him, or remain neutral. I don't know what exact passage you're referring to, so I can't comment.

Now that sounds like Barack Obama claiming he didn't have an opinion on the Heller case because he hadn't seen the briefing. Surely you're not unaware that Mr. Gura agreed that the Second Amendment doesn't protect machine guns? Does it matter what words he used to say that? I listened to the oral arguments and heard him say that, but I can't recall the precise words he used. However, here is a quote from the article you seem to feel is accurate:

Many Internet gun-rights activists accused Gura of selling out on the machine gun issue. “We wanted to win,” Gura responds. “And you win constitutional litigation by framing issues in as narrow a manner as possible. I could not tell the justices honestly that I hadn’t thought about machine guns. ‘Gee, I don’t know, maybe…’ That’s a bunch of crap. I would have lost credibility, it would have been obviously a lie and I’m not going to lie to the Court, and I would have lost the case.”

I do know that they took a position of only trying the one issue at hand, because it was a narrowly crafted case. Machine guns weren't at issue; overturning the DC ban was.

But Ginsburg asked him about machine guns and he conceded they weren't protected by the Second Amendment. This concession found its way into the majority opinion. An experienced appellate attorney would never have made that concession; there are ways not to answer questions that are not on point. But ego-driven inexperienced attorneys make those kinds of mistakes. He said it, you know he said it, and you're dodging the question because you will either have to condemn a fellow libertarian, or admit your bias against the NRA.

For their educational, training, and legislative efforts to make things better, I salute the NRA (and that's why I am a member). For the roadblocks they throw up in the path of those who would be more bold, I condemn them. And for their acceptance of the idea that the 2nd means something less than what it says --for all guns, for all people-- I have nothing but contempt.

Kevin

Yet you don't condemn the "Levy team," especially Gura, for agreeing that machine guns (part of your "all guns") are not protected by the Second Amendment, that it's constitutional to require a license merely to own a gun, and that the licensing process can even include a vision test! (The vision test was something he came up with, Ginsburg didn't ask him about vision tests.) So much for being unbiased.

Chas.

[nitrogen]

See, this is exactly the kind of stuff I wish the NRA was more vocal about.

The NRA really needs some help communicating, I think. Their "internet division" seems unable to explain things like this to a majority of people. Everything I read in this thread was news to me, and drastically changed my opinion of the NRA's handling of the case.

As I said in http://www.texasshooting.com/TexasCHL_F ... 94&t=20257" onclick="window.open(this.href);return false; I think the NRA needs to somehow get things like this out in the open.

Again, maybe I just don't know where to look.

[KC5AV]

Is this the exchange in question?

JUSTICE KENNEDY: But you were about to tell us before ae course of questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?

MR. GURA: Oh, yes. Yes, Justice Kennedy.

The right of the people to keep and bear arms was derived from Blackstone. It was derived from the common-law English right which the Founders wanted to expand. In fact, the chapter in which Blackstone discusses in this treatise, his fifth auxiliary right to arms is entitled --

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. And so, does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons? I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790 or whenever, with their rifles, with their muskets, but only the officers were to bring pistols. So that to me suggests they didn't see pistols as that crucial even then, let alone now.

MR. GURA: Well, certainly they saw --

JUSTICE BREYER: What's your response to the question?

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: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

The fact is that this Court's Miller test was the only guidance that we had below, and I think it was applied faithfully. Once a weapon is, first of all, an "arm" under the dictionary definition -- and Webster has a very useful one -- then you look to see whether an arm is meant to be protected under the Second Amendment.

And we apply the two-pronged Miller test, and usually one would imagine if an arm fails the Miller test because it's not appropriate for common civilian applications --

JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that that is standard issue in the military.

MR. 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. And --

CHIEF JUSTICE ROBERTS: Is there any parallel --

JUSTICE GINSBURG: At this time -- I would just like to follow up on what you said. Because if you were right that it was at that time, yes; but that is not what Miller says. It says that the gun in question there was not one that at this time -- this time, the time of the Miller decision -- has a reasonable relationship to the preservation or efficiency of a well-regulated militia. So it's talking about this time.

MR. GURA: That's correct. The time frame that the Court must address is always the present. The Framers wished to preserve the right to keep and bear arms. They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence.

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 --

[jimlongley]

My turn to jump in.

Gura didn't just "agree" on machine guns, he flat out stated that they were "not an arm of the type that people might be expected to possess commonly in ordinary use."

If I was a justice I might have taken Gura to task for lying about that issue alone.

First of all, I had an email exchange with Gura early on in the case, in which I pointed out that the Second Amendment should also protect cannon and machine guns. I based this on commentary on two things, first was that the initial battle at the Old North Bridge, was due to Lt. Col. Francis Smith's mission to capture cannon and other supplies from the colonists. With this fresh in mind, the framers of the Bill of Rights had to have included cannon in the protective aspect of the amendment, particularly since cannon were commonly privately owned in that era.

I also pointed out that guns were a natural progression in firearms development, and even anticipated due to Franklin's and Gallileo's work, among others, on such things, and should also be protected.

Gura replied that he agreed but "due to the narrow nature," etc, etc.

For him to say the things he said in the exchange with the justices, seems to me a step beyond a mistake made by an ego driven inexperienced attorney, it sounds more like he carefully crafted the answer in anticipation of just such a question, because he knew that bringing such things into the case could and most likely would have a negative effect on the decision.

In other words, Gura threw machine guns and cannon under the wheels, despite the fact that there are civilian owners of such items, and people who would like to own them, who may suffer.

Due to our email exchange, I personally feel betrayed by Gura, not the NRA.

[Charles L. Cotton]

I have to correct a mistake I made in my posts. Gura did not state that a psychological evaluation would be an appropriate licensing requirement. He said a "vision test" would be appropriate, among other things. I was listening to the oral argements with another attorney and he made the statement, "why doesn't he just agree to DNA testing and a psychological evaluation as well!" I forgot it was him and not Gura that said psychological evaluation.

Sorry about the mistake. The interchange about licensing requirements is below.

Chas.

JUSTICE GINSBURG: If it's a fundamental right, what about licensing? One piece -- we've talked about trigger locks, we've talked about the ban on handguns, but there is also a requirement that there be a license for possession of a handgun. Assuming you're right on the first question, that you couldn't flatly ban handguns, what about a requirement that you obtain a license to carry -- to have a handgun?

MR. GURA: Justice Ginsburg, that would depend on the licensing law itself. We don't have a problem with the concept of licensing so long as it's done

JUSTICE GINSBURG: What about this very law? If you take out the ban -- there is a law on the books. It's one of the ones that you challenged. It's section 2 22-4504(a). Wouldn't that be okay -- would that be okay? It says that you have to have a license to carry.

MR. GURA: 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 hopefully some process for

JUSTICE GINSBURG: It just says -- it says you have to get a license if you want to possess a gun. What kind of standard? It just says you have to have a license.

MR. GURA: Well, the government could set reasonable standards for that, Your Honor. The government could require, for example, knowledge of the State's use of force laws. They can require some sort of vision test. They could require, perhaps, demonstrated competency. And those are the types of things that we sometimes see; background checks, of course. Those are going to be reasonable licensing requirements. However, if the license requirement is we only wanted to give licenses to people who look a certain way or depends on how we feel or if the licensing office is only open Thursdays at 3:00 in the morning -- I mean, it all depends on the implementation.

CHIEF JUSTICE ROBERTS: What about -- what about age limits -- you've got to be over 18or you've got to be over 21 to get a license?

MR. GURA: Well, certainly the age-of-majority issue is -- is an appropriate one. I don't think there is a problem with requiring a majority age 18 and then 21 for . . .

[Charles L. Cotton]

Here is the exchange between Justice Breyer and Gura where Justice Scalia had to tell Gura to answer yes. In fact, Justice Scalia had to repeat himself to get Gura to answer "yes."

Chas.

JUSTICE BREYER: Well, I didn't read -- I read the two military briefs as focusing on the nature of the right, which was quite a pretty good argument there that the nature of the right is to maintain a citizen Army. And to maintain that potential today, the closest we come is to say that there is a right for people to understand weapons, to know how to use them, to practice with them. And they can do that, you see, with their rifles. They can go to gun ranges, I guess, in neighboring States.

But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA: You want to say yes.

JUSTICE BREYER: Now, why?

JUSTICE SCALIA: That's your answer.

JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.

MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, . . .

[stevie_d_64]

You go Charles!!!

I'm laughing so hard it's bringing tears to my eyes...

I'm just glad I didn't press your button this time...

If some wanted the NRA to be more vocal...Thou woudst be wise to listen to Charles...

[KBCraig]

Here is the exchange between Justice Breyer and Gura where Justice Scalia had to tell Gura to answer yes.

That was an exchange between Breyer and Scalia, not Gura.

[KC5AV]

Here is the exchange between Justice Breyer and Gura where Justice Scalia had to tell Gura to answer yes.

That was an exchange between Breyer and Scalia, not Gura.

JUSTICE SCALIA: You want to say yes.

I believe that statement was probably directed at Gura.

[Charles L. Cotton]

Here is the exchange between Justice Breyer and Gura where Justice Scalia had to tell Gura to answer yes.

That was an exchange between Breyer and Scalia, not Gura.

No it was not. I was listening to the oral arguments and I've read the transcript. Justice Breyer was asking Gura a question and he was about to answer "no." That's why Justice Scalia had to step in. As I noted, the entire courtroom erupted in laughter.

Justice Breyer and Gura were discussing handguns and the military and Gura had just finished saying "numerous military officers at the highest levels of the U.S. military . . . agree with us that the handgun ban serves to weaken American's military preparedness. (Pg. 51, line 25 - Pg. 52, line 5). Justice Breyer then asked "But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necesary, is it unreasonable for a city with that high crime rate to say no handguns here?"

At that point, Justice Scalia said, "You want to say yes." (Pg. 52, line 25- Pg. 53, 6) There had been no dialog between Justices Breyer and Scalia, only a question to Gura. Here is the exact exchange:

MR. GURA: Because, Your Honor, for the same reason it was offered by numerous military officers at the highest levels of the U.S. military in all branches of service writing in two briefs, they agree with us that the handgun ban serves to weaken America's military preparedness. Because when people have handguns handguns are military arms, they are not just civilian arms -- they are better prepared and able to use them. And, certainly, when they join the military forces, they are issued handguns. And so if we assume that the sort of military purpose to the Second Amendment is an individual right, then the handgun ban, as noted by our military amici, would impede that.

JUSTICE BREYER: Well, I didn't read -- I read the two military briefs as focusing on the nature of the right, which was quite a pretty good argument there that the nature of the right is to maintain a citizen Army. And to maintain that potential today, the closest we come is to say that there is a right for people to understand weapons, to know how to use them, to practice with them. And they can do that, you see, with their rifles. They can go to gun ranges, I guess, in neighboring States. But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA: You want to say yes.

JUSTICE BREYER: Now, why?

JUSTICE SCALIA: That's your answer.

JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.

MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 19 1942 -- that was a handgun case where the First Circuit
examined the restriction on the carrying of the 30-caliber revolver. And the First Circuit accepted, as a matter of judicial notice, that proficiency in use and familiarity with the handgun at issue would be one that would further a militia purpose. And so -

Heller Transcript See pgs. 51-53.

[Charles L. Cotton]

Well Kevin, KC5AV has quoted Gura's exact wording you wanted to see, so are you ready to condemn your fellow libertarian for his stance that machine guns aren't protected by the Second Amendment? His post has been up for six days but we haven't heard from you.

Chas.

Is this the exchange in question?

JUSTICE KENNEDY: But you were about to tell us before ae course of questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?

MR. GURA: Oh, yes. Yes, Justice Kennedy.

The right of the people to keep and bear arms was derived from Blackstone. It was derived from the common-law English right which the Founders wanted to expand. In fact, the chapter in which Blackstone discusses in this treatise, his fifth auxiliary right to arms is entitled --

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. And so, does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons? I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790 or whenever, with their rifles, with their muskets, but only the officers were to bring pistols. So that to me suggests they didn't see pistols as that crucial even then, let alone now.

MR. GURA: Well, certainly they saw --

JUSTICE BREYER: What's your response to the question?

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: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

The fact is that this Court's Miller test was the only guidance that we had below, and I think it was applied faithfully. Once a weapon is, first of all, an "arm" under the dictionary definition -- and Webster has a very useful one -- then you look to see whether an arm is meant to be protected under the Second Amendment.

And we apply the two-pronged Miller test, and usually one would imagine if an arm fails the Miller test because it's not appropriate for common civilian applications --

JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that that is standard issue in the military.

MR. 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. And --

CHIEF JUSTICE ROBERTS: Is there any parallel --

JUSTICE GINSBURG: At this time -- I would just like to follow up on what you said. Because if you were right that it was at that time, yes; but that is not what Miller says. It says that the gun in question there was not one that at this time -- this time, the time of the Miller decision -- has a reasonable relationship to the preservation or efficiency of a well-regulated militia. So it's talking about this time.

MR. GURA: That's correct. The time frame that the Court must address is always the present. The Framers wished to preserve the right to keep and bear arms. They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence.

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 --

[KBCraig]

Well Kevin, KC5AV has quoted Gura's exact wording you wanted to see, so are you ready to condemn your fellow libertarian for his stance that machine guns aren't protected by the Second Amendment? His post has been up for six days but we haven't heard from you.

Sure, that's easy: he's wrong.

What's amusing to me is that you're criticizing him for agreeing with you. Are you saying an NRA lawyer wouldn't have made the same argument? The same NRA that agreed to the MG ban?

[Charles L. Cotton]

Well Kevin, KC5AV has quoted Gura's exact wording you wanted to see, so are you ready to condemn your fellow libertarian for his stance that machine guns aren't protected by the Second Amendment? His post has been up for six days but we haven't heard from you.

Sure, that's easy: he's wrong.

What's amusing to me is that you're criticizing him for agreeing with you. Are you saying an NRA lawyer wouldn't have made the same argument? The same NRA that agreed to the MG ban?

I can absolutely guarantee I would not have made that argument. He was the one who brought up the subject! I would never have done that and I would have avoided answering an irrelevant question, had one of the justices asked.

Back to Gura. Can't you give me a little more than "he's wrong." Here is what you said about the NRA:

For their educational, training, and legislative efforts to make things better, I salute the NRA (and that's why I am a member). For the roadblocks they throw up in the path of those who would be more bold, I condemn them. And for their acceptance of the idea that the 2nd means something less than what it says --for all guns, for all people-- I have nothing but contempt.

Why doesn't you level of disagreement with Gura's position on machine guns rise to the level of contempt?

This is what really galls me Kevin. Your contempt for the NRA not supporting "all guns for all people" knows no bounds. You have expressed those feelings for years, both here on TexasCHLforum and on tx.guns. You even blame the NRA for the 1934 NFA! But when one of your fellow libertarians, Alan Gura, walks into the U.S. Supreme Court and voluntarily throws machine guns under the buss for absolutely no reason, you offer only a very mild negative comment. That's a double standard and it's hard to swallow.

Chas.

[Charles L. Cotton]

Apparently, Mr. Heller wasn't as impressed with Alan Gura's representation of him, as was Mr. Doherty. Mr. Heller didn't hire Gura to represent him in the second suit he filed against Washington D.C. (a/k/a Heller II). Guess who he came to for help?

Chas.