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The Soliciter General’s Arguments

I actually didn’t think they were all that damaging to our case.  Countertop had this to say:

For all the NRA hating GOAers out there – god bless the NRA’s ability to influence the Bush Administration and Paul Clement, cause his oral arguments today were much better than I was worrying about and he seemed far more willing to limit the ability of governments to restrict guns like machine guns than Allan Gura would.

Clement spent most of the time defending the individual rights position, and considerably less time defending an intermediate standard of scrutiny.  He was actually quite good, I thought, at arguing for the individual rights interpretation, and stated that he actually believed there was no way to distinguish machine guns from arms protected by the second amendment.

Now for those of you who are ready to ding Gura for accepting that the government could limit machine guns, that was a tactical move to make The Court more comfortable with issuing an individual rights ruling.  I am not happy with the amount of time spend arguing in this case about machine guns, because they aren’t at issue here, but it’s where a lot of the justices wanted to go.  You can’t fault Gura for that.

17 Responses to “The Soliciter General’s Arguments”

  1. Joe Merchant says:

    Seb, (I can call you, Seb, right?);

    Far too many gunnies wanted Gura to go in and demand Miller be overturned and M4s be given out on street corners to arm the militia.

    Unfortunately, that’s not how it works. the antis didn’t get all teh gun control in one shot. It started with a little bit in the 30s (Miller) then a little more 30 years later (GCA68) then a little bit more 20 years later (GCA86) and then a bit more in the 90s (Brady, AWB).

    We have to gain our rights back one small section at a time. If Gura had gone in and demanded “No infringement at all!!!” then it would be a 7-2 loss.

    He’s far smarter than we are.

  2. Tom says:

    Joe, did you see the press conference where Levy said “keeping certain types of weapons out of everybody’s hands”? That’s what the case was all about, and to turn around and argue against one “icky” type of gun while just minutes earlier you argued that your rights were being infringed is disgusting.

    Well, taking your own comments into consideration Mr Levy, we should overturn the district court.

    I understand the incremental step argument, but that kind of comment directly after arguing against the same thing is a bit hypocritical and disturbing.

  3. Joe Merchant says:

    I did not see that. That is an unfortunate choice of words, I admit. I will not try to defend the statement, but I will point out that one of the key parts of the solicitor general’s argument is that any ruling not tightly restricted would essentially open the door for felons, kids, loonies, illegals, and my dog to getting a gun.

    Now, we all know that argument is horseshiite, but Gura and Levy have to tread carefully to dispel any validity to those claims.

    Sadly, they can’t argue this in terms of right and wrong, they have ot argue this in terms of what will win the case. Then, we have a bedrock decision, in a district that applies nationwide, from which to cite as precedent as we fight other bans and restrictions.

  4. Sebastian says:

    Not what I would have done either, but want to keep things focused on the issue at hands. Focusing on machine guns is not going to help the outcome of the case.

  5. Tom says:

    Yes, I understand the point. I’m sure the antis will pick up on it too.

    Also, with Wayne Fincher’s appeal just getting started this ruling and his case could be the MG springboard. Assuming things go well in this.

  6. Sebastian says:

    That would be a disaster. It’s the wrong case to go forward on this thing, with the wrong legal team. This is about a lot more than individual people, mishandling these issues, and we can all lose machine gun rights forever.

  7. Ian Argent says:

    I noticed that the issue of standing for PArker, et al, wasn’t touched. What, if anything, will come of that cross-petition?

  8. Tom says:

    If this comes down on our side and you have a nice big check I’ll be happy to sit down with you and a bunch of lawyers and then build a machine gun to challenge it if that would make you feel better. ;)

    On a related note, if this comes down the right way could any of the previous MG cases that have been before the court be revisited if the people involved wanted to bring them back up? Would they have to go through all the steps again?

  9. Sebastian says:

    My understanding is, if a law is declared unconstitutional, it’s like the law never existed. Anyone who is in prison based on that law gets let go.

    It’s also not just having the perfect team, it’s having the right timing. We don’t want to go after the machine gun issue unless the court doesn’t have much wiggle room to rule against us. Hopefully we won’t get shut out at this stage, but I’m concerned about that given all the attention that was paid to machine guns in the oral arguments.

  10. Ian Argent says:

    Handguns first, then shall-issue (probably has a pretty decent chance based on the justices views in argument), then the hughes amendment. Doubt NFA ’34 will go away – not being, you know, a ban.

    Other things that probably won’t go away – licenses for carry, background checks for purchase. Even with a Strict Scrutiny standard. IMHO, and YMMV.

  11. Sebastian says:

    DC’s ban first. Then chicago’s ban. Go for restrictive licensing schemes next. First the Sullivan Act, then Massachusett’s licensing system, which is may issue for handguns. Then New Jersey’s Shall Issue in Law only licensing scheme, which is in practice shall issue when we feel like it, and not a moment sooner, unless you get a lawyer, and even then we’ll drag our feet… etc. After that, try to get rid of a restrictive “assault weapons” ban. It’s only when you have all that crap sown up that you want to go after carry issues. And only after that do you go after machine guns.

    Of course, it’s not going to happen how we want. Someone’s going to take a machine gun ban forward and lose.

  12. Ian Argent says:

    I guess I shoulda said we were still in handgun ban territory. (Don’t talk to me about NJ’s scheme – I’m still trying to decide if I want to start saving for a gun or not, given where I live)

  13. Mike M. says:

    I’m guessing we get an individual rights ruling that allows certain restrictions. I can’t see any ruling that removes restrictions on felons and such owning arms, as felons have other rights restricted (voting, association with other felons come to mind). I’m unsure how the machine gun issue might come down. It’s difficult to rule that you can’t restrict one class of gun while restricting another, when both are in common use by the military. I understand Gura not wanting to push the machine gun issue, but I feel he should have avoided it altogether by claiming his client’s right to own a machine gun was beyond the bounds of his case. His argument that they’re not in common use is faulty; they’ve been regulated since 1934 and banned since 1986, so of COURSE they’re not in common use. I need to read the trascripts again, because it seemed to me that Scalia was dubious of the MG ban.

  14. SteVe says:

    Excellent plan of attack Sebastian. Please submit it to the powers that be for future planning & implementation. Assuming, of course, that we get the limited positive ruling we’re hoping for.

  15. Sebastian says:

    Sadly, there’s no power that be which controls all this. It’s just what would be ideal. Probably not what we’ll end up getting.

  16. Matt Wright says:

    Gura totally dropped the ball on machine guns. If the point of a militia is to a defend the citizens against invasion or tyrannical government, and if that citizenry is expected to make up the members of that militia, how can a machine gun ban be constitutional.

    How can a militia of rifles and handguns and shotguns defend itself against an army with all the modern weapons? It would be a wipeout. There would be no point to the militia.

    And he also made the point that machine guns are not common. Well, with the 86 Ban noone can afford them. Have you ever priced a machine gun? Anywher from 10,000 on up? How many families can afford a machine gun? Well less than one percent of our population.

    And if you try to make one, you could get 20 years if the batf finds out.

    The reason they are not more common is because they are legislatively prohibited, thus making the cost unobtainable to most americans.

    Gura made a dumb argument.

  17. Sebastian says:

    Matt… please see Alan Gura’s comments posted here

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