Lots of gnashing of teeth all over the gun blogosphere about how Gura “threw machine gun owners under the bus,” etc., etc.
Wrong, wrong, wrong. This commenter at Kevin Baker’s got it exactly right:
Machine guns were brought into the argument to scare the conservatives. I don’t think it worked.
The individual right wins at least 5-4. The narrower the decision is scoped, the more additional justices it will carry. It could go all the way to 9-0, but I fear that would be a pyrrhic victory for gun-owners as it would likely be incredibly narrow (although the ban would probably still be out).
Even a narrow win is better than a reversal. It firmly puts the individual right in place, and the argument then goes to scope. For those of us living under the 9th Circus – that will be a huge improvement. Also, this was how Marshall as a litigator overturned Plessy – by starting with small wins before the home run in Brown. Be patient all – our opponents learned years ago that the death of a thousand cuts was how to kill the 2nd. We must use the same approach to build it up.
I’ve said it before, I’ll say it again. The problem wasn’t that he tried to downplay the “machine guns” implications of ruling that the Second Amendment protects an individual right, that was completely understandable as it is a question for another day. The problem was the WAY he did it.
He blatantly misinterpreted Miller and embraced circular logic in an effort to dismiss the validity of the “machine guns” argument.
His contention was that Miller limited those “arms” protected by the Second Amendment to those that have a “common civilian application.”
That’s exactly the opposite of what Miller held. Miller determined that a short barreled shotgun was not protected because it had no common MILITARY application. The “in common use at the time” test means in common MILITARY use at the time, not in common CIVILIAN use at the time.
It is a disingenuous…and flat out incorrect…argument that could do harm to our cause long term.
Second Part of his justification was that…because of his flawed interpretation of the Miller test…machine guns aren’t protected by the Second Amendment because they aren’t in common use at this time.
They aren’t in common use at this time because the NFA and the Hughes amendment put them out of reach of common people.
That would be exactly the same as DC arguing that their handgun ban is perfectly OK because no one in DC legally owns any handguns anyway.
Circular logic.
I would have had no problem with him downplaying the machine gun issue because that was not the question before the court…but I DO have a problem with him using disingenuous arguments that may be detrimental to our cause long term.
Well, he has to make the argument that way in order to put the strongest spin on Miller applying to handguns.
This is really no different than all the wailing about Stephen Halbrook stating in oral argument in an earlier case that his side wanted regulation. Of course they didn’t, but you don’t argue everything you want before the court. You make the very best argument for what you can get. Yes, that means you lie about what your side really wants. You save the rest for the next case.
If Thurgood Marshall had started out in the 1930s arguing that separate-but-equal education was unconstitutional, he’d have had a losing streak a mile long. Instead, he built a foundation on a streak of narrow wins, all the while carefully avoiding “scaring the white folks” in oral argument by downplaying the revolutionary nature of what his side was trying to do.
Well, I guess the crux of our disagreement boils down to whether he “had” to make the argument that way.
I don’t believe that he “had” to be disingenuous to make the point that this lawsuit has nothing whatsoever to do with the ownership of machine guns.
He could have simply argued that the current strict regulation of machine guns would very likely meet the standard of strict scrutiny because of the compelling safety interest of the State in regulating them…but that would be a question for the courts to answer if and when it ever arises.
That’s just one of many ways the question could have been addressed without possibly undermining future arguments.
The bottom line is that he didn’t HAVE to misstate Miller, he chose to do so. His doing so may very well serve only to weaken future arguments against other egregious regulations like the “sporting purpose test” for importation.
Furthermore, I would submit that Halbrook wasn’t “lying” when he said we “want” regulation. Of COURSE we want regulation. society couldn’t function without SOME regulation.
Exacting consequences for the negligent or criminal abuse of firearms is regulation.
Precluding violent criminals from gun ownership is regulation (of course, I’d prefer the option of just permanently removing violent criminals from society altogether, but that’s neither here nor there).
Protecting resources through the issuance of hunting licenses and “bag limits” is regulation.
Mandating that gun safety, handling and marksmanship training be offered at all levels of public education is regulation.
Prohibiting the ownership of “plastic” guns is regulation. Heck, I’d support prohibiting the ownership of any number of fictional guns if it would keep the hoplophobes placated enough to leave guns that actually exist in real life alone.
Ban Marshmellow guns.
Ban Cotton Candy guns.
Ban Tin Foil guns.
Just leave my metal, wood and polymer guns alone.
But I digress…
The point is, resorting to outright obfuscation and lies is the realm of the unimaginative and the dishonorable. That ain’t us, on either count.
Well, take a look at Gura’s response to Ginsburg on the licensing question. He said “we don’t object” to licensing, including standards like testing for knowledge of state laws, eyesight tests, background checks — this is NOT about licensing for concealed carry, this is about licensing in order to own a gun in the first place!
Now, if you think Gura or anyone on his side believes what he said about licensing, you’re smoking something. Just as with the machine gun stuff, he was doing his best to parry an attack by the left-wing justices by eliminating from discussion the very issue they want to demagogue. Oral argument before the Supremes is verbal chess of the highest order, and artful deception is often necessary, if you want to walk away with a win.
Now, if you think Gura or anyone on his side believes what he said about licensing, you’re smoking something.
I don’t presume to have any idea what is going through the mind of anyone but myself.
The option of licensing was on the table from the get go and the Heller team made that perfectly clear. The scope of this case was intentionally very narrow.
There are plenty of people who don’t have a problem with people owning guns but support licensing, mandatory training and such.
To be perfectly honest, if I thought that’s where it would end, I wouldn’t be averse to such regulation…as long as it was non-discretionary, very narrowly tailored and free of fees or costs to the citizen. I just know that it wouldn’t end there and I refuse to let the Camel get his nose any farther into the tent than it already is.
You may be right about the “artful deception thing.” I understand that the world is far less than ideal.
If this were an ideal world, we’d never have been here in the first place. The first proposed legislation restricting the keeping and bearing of arms would have been met in the courts with “What part of ‘shall not be infringed’ is unclear?”.
That doesn’t mean I’ve gotta like it.