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Heller Thoughts

Every one calm down. Breath.

Ok, my thoughts are thus:

Gura was arguing for the first time in front of the Supremes. He was nervous. He said too much. And he gave too much to the bad guys. I don’t understand why he felt the need to bring up machine guns and talk in detail about them or why he talked about handguns in that light. He seemed to be willing to throw too many bones to the bad guys.

And to all you yammering on about throwing machine gun owners under the bus, deal with it. This case wasn’t about machine guns. This case is an incremental approach to winning the long war on gun control. You were thrown under the bus in 1986. Speaking of buses, if you drive one 20 miles in, it’s still 20 miles out. And this case represents the first couple miles of that trip back out. Cowboy up and accept that or scream ‘SHALL NOT BE INFRINGED’ at passers-by if you must. But it’s not helping. I think Gura’s move on MGs was small ball. They are not at issue and the whole point was to get the court to affirm a right to arms. Bring up MGs was good strategy on the anti-gun side as they knew that MGs 1) scare white people; and 2) will piss off the GOAers. Divide and conquer.

Anyone who expected Gura to walk in and demand M4s for all of us wasn’t paying attention.

If we go in demanding all or nothing, we’ll get nothing.

The Solicitor General did a good job of arguing the individual rights stuff but his standard of review is too much. I’m guessing there were some talks in the administration prior to the case.

Sebastian has more here and here.

28 Responses to “Heller Thoughts”

  1. Tom Says:

    I’m white and not scared by MGs.

    I also find Levys press conference comments about keeping certain guns out of everyones hands more then a tad hypocritical in light of that’s what the case was all about, a classification of arms that has been limited and infringes Heller’s rights.

  2. Alan Says:

    I would have been happy for an affirmation of an individual right and we’re likely to get that. With that in hand no matter what standard of scrutiny we get, we’ll be better off from a gun rights point of view than we’ve ever been.

    As for machine guns, despite what Gura said, I don’t see how you can make a case that a handgun ban violates the 2nd amendment but a machine gun ban doesn’t.

  3. scattershot Says:

    Well said Uncle. I thought all the justices outshined all the lawyers. I think we will get a fair verdict out of this court, and possibly unanimous. Wouldn’t that be really nice ?

    Now as to C-Spans playback equipment, …

  4. Nomen Nescio Says:

    I don’t see how you can make a case that a handgun ban violates the 2nd amendment but a machine gun ban doesn’t.

    don’t worry — the case is in the hands of the same sorts of professionals who have previously made the case that marijuana given away for consumption in the state where it was grown affects interstate commerce. they’ll find a way.

    and, politically, they have to. the hue and cry if machineguns were set free again would be enormous; it’s hard to overestimate just how politically reviled they are in mainstream society. baselessly, perhaps, but they are. the supremes are too political a bunch to upset that apple cart, but handguns are a much more tolerable matter.

  5. gattsuru Says:

    Alan, I’d expect a ban on all functional guns to fail strict scrutiny pretty obviously. I’d expect a ban on all functional handguns to do so less obviously, but pretty easily — while there may be a compelling government interest to not allow the ownership of guns used the most in violent crime, it simply steps on too many other toes, and thus flunks the two other parts of a strict scrutiny test.

    Machine gun bans are a bit easier to pass by strict scrutiny: they’ve got a fairly limited set of benefits compared to other guns, and aren’t used often enough for most people to get by a complaint about how narrowly tailored the law would be.

    I don’t like Gura bringing it up, though. Saysuncle and Sebastian’s viewpoints seem to ignore that we’re talking SCOTUS precedent here. While I don’t ever expect us to get machine gun bans overturned at the federal court level, I don’t particularly think we need to burn that particular bridge so completely at this point, because we’ll never be able to bring that bridge back up.

    This is going to be, really, the first and rather defining part of 2nd Amendment precedent on a Federal level. We really, really don’t need people coming up with 2nd amendment exceptions out of whole cloth when we could simply point to the same strict scrutiny that every other constitutionally recognized right gets, and let the courts chew on that.

  6. Phelps Says:

    I agree with SU here. This was our first push over the top — we are trying to get to the next trench, not Berlin.

  7. Jim W Says:

    I thought it was a train wreck of an OA. Gura conceded way too much and came across as weak IMO.

    I’m grateful that 4 out of 9 are solidly on our side anyway and possibly Kennedy and Ginsburg as well. Overall I feel confident about this.

  8. Sebastian Says:

    I don’t like Gura bringing it up, though. Saysuncle and Sebastian’s viewpoints seem to ignore that we’re talking SCOTUS precedent here. While I don’t ever expect us to get machine gun bans overturned at the federal court level, I don’t particularly think we need to burn that particular bridge so completely at this point, because we’ll never be able to bring that bridge back up.

    We are, but machine guns aren’t really at question here, so anything they say about machine guns will likely be dicta, and not legally binding on lower courts. That’s not to say dicta that’s negative in regards to machine guns won’t be bad, but it won’t be binding.

    I agree we didn’t need to burn that bridge so quickly, and I rather wish Gura had taken a few opportunities he had to get off that topic, but I’m going to be reluctant to criticize him. He was on the hot seat, and I wasn’t. Dellinger is seasoned at this, and he did pretty badly.

  9. Sigivald Says:

    I don’t want an M4, I want an MP-44.

    But I can wait.

  10. ATLien Says:

    If we go in demanding all or nothing, we’ll get nothing.

    If you go in armed and ready to fight for all, you get all.

    Frankly, I’m sick of giving away my rights a little bit at a time. I’m also not afraid to say that I’m willing to take down anyone who wants to take them away. There is no middle ground in this. Any American who believes they can take away your rights is a Traitor. There is no debate. There is no negotiation.

    I’m disturbed that others believe that negotiation and debate are even options.

    John Adams, et al. Wouldn’t stand for Liberty “a little bit at a time”, and they would kick people who thought that in the nuts.

  11. SayUncle Says:

    So, are you gonna cowboy up and start shooting people? Because that’s not gonna be helpful. And it’s stupid. The rest of us will be here using the legal system.

  12. ATLien Says:

    In a word, yes.

    How come you have such faith in a government that already feels that rights are THEIRS to give? Even the Founders knew that eventually, government always becomes tyrannical, and the people should be ready to violently oppose it.

    They’ve already smashed up the 1st amendment some. They’ve raped the 4th. The 2nd’s been beat on and tied up for over 70 years. Hell, in the Federal government’s eyes, There IS no 10th. So what about that legal system you were talking about? The one that’s made it pretty much illegal to carry large amounts of cash on you? The one that sends cops busting through one’s door at 3 am cause a criminal said he thought he saw that you might have a plant growing in your yard? Is that the legal system you think is gonna give you your rights back?

    John Adams believed in the legal system, too. He still had to rebel against the established system.

  13. Yu-Ain Gonnano Says:

    Yep, Martin Luther King would have been much better served by shooting up congress and the police than petitioning the .gov for a redress of greivances.

    /sarcasm

    To paraphrase KdT: Soap Box, Ballot Box, Jury Box and way the hell over there is the Ammo Box. We’ve been on the soap box, we are working and winning at the ballot box. We’ve just had our first foray to the Jury Box (and it looks positive there), so we are still a long way from the ammo box.

  14. Jim W Says:

    If we can’t motivate people enough to vote, how are we going to motivate them to potentially sacrifice their lives in an armed struggle to defend their rights?

    I think there would be armed resistance to the government massively overstepping the bounds of decency but it would be an error to underestimate the degree to which people will suffer these indignities- look at how much armed resistance isn’t happening in California. Or DC for that matter.

    But all of this is silly talk so long as we continue to kick ass in the political arena and our opponents continue to obey the election results and step down. On top of this, we seem to be doing pretty well in the legal war as well, so I see no reason to even mention violence in a non-hypothetical sense.

  15. gattsuru Says:

    He was on the hot seat, and I wasn’t. Dellinger is seasoned at this, and he did pretty badly.

    That’s nice and all, but he was still arguing the most important case falling before that particular court in at least the better part of a decade. That he wasn’t the biggest idiot in the room is a great feature (albeit not a surprising one, thank you Breyer), but it doesn’t provide immunity for a stupid mistake, just an excuse.

  16. SayUncle Says:

    How come you have such faith in a government that already feels that rights are THEIRS to give?

    You’re obviously new here 😉

    BTW, I think Yu-Ain made the point i was going to make only better:

    Soap Box, Ballot Box, Jury Box and way the hell over there is the Ammo Box. We’ve been on the soap box, we are working and winning at the ballot box. We’ve just had our first foray to the Jury Box (and it looks positive there), so we are still a long way from the ammo box.

    Ayup.

  17. straightarrrow Says:

    It would have been much better for him to have said DC was trying to gull the court into a wrong decision by arguing against an issue that wasn’t before the Court and he had rather use his time to argue the actual issue before the Court. That is all he needed to say about the false issue of MG’s

  18. DirtCrashr Says:

    I like what’s happening a LOT but it won’t make a bit of difference here in California, so I have to build my own AR twisting through the funky holes and gaps in The System.
    I’m just lucky that the hippie lawyers here who f*ked up everything so enormously wrote their legal definitions while on ACID, because it all looks like a bit of 70’s macrame performance art on a Playboy Bunny – they wanted to peek through gaps and left plenty to reveal, so there’s some room to work.
    Unless they behave like DC jackbooters – but they’re too uncoordinated.
    Go Heller and good luck, you guys…

  19. Infringed1 Says:

    Did I miss it, or did Justice Thomas not chime in at all during the entire proceeding?

  20. SayUncle Says:

    Dirt, not yet. But some day.

    Infringed, Thomas is notorious for not talking during arguments.

  21. Matt Rustler Says:

    Hey, SU, long time no see. Decided to see what the blogs were saying about Heller, and you were the first one who popped up. 🙂

    I wasn’t impressed by Gura’s performance, but it’s irrelevant. I’m with Orin Kerr on this one: he could’ve read from the phone book for 30 minutes and the outcome would be the same. The justices had made up their minds about this case, for good or ill, before Dellinger said his first word.

    Hate to break it to you, guys, but MGs will never be on the table for the Supreme Court. Yes, I know bad guys can make ’em if they want ’em, and yes, I know that almost no NFA registered gun has ever been used in a homicide. (Some say none, but I know to a certainty that’s not true.) Doesn’t matter. Most folks who live the hardcore gun culture (and I mean that term as a compliment; it’s where I grew up) just don’t realize how scary machine guns are to the majority of Americans, including SC justices. This is not about logic; it’s about fear. The Supreme Court cares what Americans think about it, and it’s not going to do something that will make 90%+ of Americans say, “holy shit, they’ve lost their fucking minds.” And that’s what would happen if the SC said there’s a meaningful right to possess a machine gun. Don’t believe me? Ask ten average Americans — not people you meet at the range, or here, or AR15.com, or The High Road — what they think about a constitutional right to own a machine gun.

    I wish it were otherwise; I have a 1928A1 in the safe, and I’d like more. But it’s not going to happen. Ever.

  22. Justin Buist Says:

    How come you have such faith in a government that already feels that rights are THEIRS to give?

    Using the legal system black folks have gone from the legal status of “farm implement” to citizen.

    It works, it just takes a while.
    ————-
    Yeah, Thomas hasn’t spoken a word in session for about 2 years now.

  23. Justin Buist Says:

    The Supreme Court cares what Americans think about it, and it’s not going to do something that will make 90%+ of Americans say, “holy shit, they’ve lost their fucking minds.” And that’s what would happen if the SC said there’s a meaningful right to possess a machine gun.

    Actually, I really think the anti-gun forces already blew their load on that one. Sorry for such a poor term, but that’s all I’ve got.

    They did their level best to equate semi-automatic weapons to machine guns already and they lost the renewal of the AWB. Your average man-on-the-street type can’t tell the difference between a semi-automatic AR-15 and a fully-automatic one. They banked on that, but they still lost.

    I really think a significant portion of the population would look at the “Oh noes, assault weapons ban won’t be renewed!!” rhetoric and find it indistinguishable from the “Oh noes, machine guns will be legal again!!”

    Hell, my own family thinks I own machine guns. I don’t, but in their mind I do.

  24. Sebastian Says:

    If you go in armed and ready to fight for all, you get all.

    I think you mostly just end up dead.

  25. Brad Says:

    My prediction of SCOTUS decision after reading the transcripts:

    7-2 vote affirming the lower court decision, killing the handgun ban of Washington D.C. The ruling will be a narrow one which does not address the larger issues such as the scope of RKBA or the proper scutiny to be applied in future rulings. The decision will limit itself to just the consitutionality of the handgun ban. Chief Justice Roberts will write the decision for the majority, as his influence to make a limited ruling is important.

    Dissenting is Stevens and Bryer, with Stevens writing the dissenting opinion. In the majority are the rest of the justices, but with two justices splitting off with a concurrent opinion written by Souter and joined by Ginsburg. I really think there is a chance Souter and Ginsburg will join the good-guys, and with a case of this importance will not be able to restrain themselves from putting their own spin as to the proper judgement regarding the Second Amendment.

  26. SayUncle Says:

    Matt, it’s been a while. Welcome back! Stick around, times are getting interesting.

  27. ken Says:

    I can’t pretend to know what its like to be under 40, in front of the supreme court for the first time, and arguing a landmark case. Gura could certainly have done better but he did fine… certainly better than Dellinger who I thought was surprisingly ineffective.

    Most importantly, I think we will win this case. Its also worth nothing that Gura has been carrying Heller (ne Parker) on his back for the past 5 years. His co-counsel are a non-practicing attorney and a real estate lawyer. Gura deserves the community’s thanks for getting this case up there in the first place, and if my gut is right, for winning it. All in all, I think there’s reason for optimism.

  28. straightarrrow Says:

    If you aren’t willing to go all the way, someone can and will own you. Compared to that, dead ain’t so bad. Unless of course you are…..well, you know.