Heller

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.

TriggerFinger: Other bloggers have written about the inherent contradiction in allowing bans on arms not in common use when the most obvious class of such arms are not in common use precisely because of federal regulations that amount to a ban on new manufacture of weapons in this class. Tactically I understand that that's NOT the issue to press right now. However, the longer the '86 ban on top of the '34 and '68 restrictions are in effect, the weaker our case under "in common use." How do we get out of the bind, when the time comes? Or do we just have to hope for a better court or a legislative fix?

I can't really take credit for this question.  I think it was Snowflakes in Hell that pondered it.  But I can take credit for asking someone who might be able to answer.

David H (davehardy): That IS a logical problem! We have a similar one in the 4th Amendment. Prohibition on unreasonable "searches." How does that restrict wiretaps, etc. that don't involve a search? Court has held it extends to cover a "reasonable expectation of privacy," e.g. on the telephone. That, too, has a circularity problem. If the gov't announces it is randomly tapping every phone, does anyone have a "reasonable" expectation of privacy. I suspect it comes under the "you know what we mean" doctrine of judicial construction.

The comparison to reasonable expecation of privacy in wiretapping laws is a good one.  I've run into similar issues before; consider, for example, the transmission mechanism of email.  As currently standardized, email is about as secure as a postcard -- anyone who can look at the email while it is "in transit" from sender to recipient can read the contents.  This generally includes at least two internet service providers (including all their staff) and often a number of other "backbone" providers who link the two isps.  Usually, once it arrives, an administrator can read the contents.  Depending on the network design, it's possible that anyone on the local network (for example, anyone on the same floor of the building or same group of offices) could read the email as it was transmitted.  For web-based email, logging in to read the email provides yet another opportunity to learn the contents. 

And on top of all this, there's a law passed under the Clinton adminstration and expanded under Bush known as CALEA that mandates telephone companies make it possible for law enforcement to wiretap their lines "easily".  If I remember correctly, the required capacity is something like being able to tap 1% of all the current phone calls in the US.  Under Bush, this law was expanded to cover internet service providers in ways that I don't believe have been released.

And yet people have a very strong expectation of privacy about their email exchanges, and systems adminstrators know this and respect it.  It's not technically very private, but socially, it's treated as such.  At least some of the lack of privacy is due to government action.  So does the test consider the real privacy afforded by technical means -- ie, very little?  Or does it consider the expectation -- a lot?

I don't know.  (My solution is to fix the technical problems with the email system so that it is as private as people expect it to be).

The full transcript is available here.

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered. 

TriggerFinger: Second question. The more-liberal side of the court is famous for reading rights into the "penumbras" of the Constitution. Would it be fair to read similar implications into any common federal gun control laws not referenced by Scalia as permissible? I'm thinking in particular of Lautenberg's domestic-violence rules, which came close to the brink in US v Emerson and which, as I recall, was notably absent from Scalia's list. (at least as summarized in the syllabus -- still working through the whole opinion)

It should be pretty clear what I'm getting at here.  What Scalia leaves off his suggested "ok list" for gun control is a ripe target for challenge precisely because it's left off and we won't have to argue with a recent Supreme Court "suggestion" even in dicta. 

David H (davehardy): Possibly. I did notice that Scalia omitted mention of Lautenberg. That wouldn't be significant in a purely legal sense, but suggests to that Scalia at least has heartburn with it, and the four Justice who joined him did not suggest its mention.

And it seems that Dave is thinking the same thing.  Left unstated is the effect that US v Hayes will have on the law:

In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship ? that is, as a spouse, parent or guardian.

It's hard to get a good plaintiff for a Lautenberg case.  This case was picked by the Justice Department rather than our side, and the plaintiff is not one that I would have chosen, though the court grants certiori for its own reasons.  Are they planning to use this case to strike down the ban?  Probably not, even if Scalia left the rhetorical door open.  But it's possible.

I wouldn't be surprised to lose Hayes (especially since the 2nd Amendment question isn't presented at this point) and win a subsequent case involving a restraining order rather than a conviction.  Nor would it surprise me to see a ruling indicating that the 2nd Amendment requires careful dotting of i's and crossing of t's in order to uphold any regulations -- sort of a "you didn't get this case quite right, please come back later with your paperwork in order."  Reading tea leaves from the Court is not always easy. 

Clearly, though, I'll have to pay attention to the briefs in this case to see if and how the issue gets raised.

The full transcript is available here.

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.  Here's my first question:

TriggerFinger: Blogger TriggerFinger here. We know Scalia's opinion covered a number of "suggested as reasonable" gun control laws. Those suggestions, including such things as the ban on felons in possession, are not strictly necessary to reach the decision in Heller. Could you briefly explain the concept of "dicta" versus a binding part of a core ruling and maybe give us a feel for how lower courts and future supreme courts will consider Scalia's words in future cases? How much weight is due, for example, to Scalia's discussion of felon-in-possession laws as constitutional when Heller, the plaintiff at issue, is not a felon?

I was hoping to address the concern that several other gunbloggers have already raised regarding the opinion in Heller.  Yes, it seems like the case and the decision conceded a lot.  However, not everything that's included in an opinion has equal weight.  Generally, the elements of a decision that are necessary to reach the final result have precedent weight; those that are not necessary to reach that result -- the judicial equivilent of a "by the way" -- are considered less important for future cases to respect.

Here's his answer:

David H (davehardy): Holding: the part of a decision that binds future Courts (they can depart from it only by overruling the prior decision). These are the facts here which were key to the decision. I'd say the Heller holding is that a federal entity cannot outlaw handguns nor require guns to be trigger-locked in the house. That's the law at issue and the court's decision on it. Anything is considered dictum. The Court may quote it later to buttress an argument, but it can depart from it without overruling. Laws about felons, government buildings, etc. were not at issue in Heller, so a future Court could decide those issues differently without having to overrule Heller. Icing on the cake, not binding.

As you can see from this brief but succinct explanation, what Scalia wrote regarding other gun control laws will have some influence (especially on lower courts) but not actual precedential value.   We can challenge even Scalia's "approved" laws and possibly win.  It would not necessarily be a wise thing to do right now, when we barely held 5 votes, but it's not barred completely.

We'll just need to take it slowly and carefully, one case at a time.

The full transcript is available here.

Suppose the Heller case, which the Supreme Court will likely rule on today, comes down with a ruling favorable to gun rights -- upholding the lower court and striking down DC's gun ban.  That's not going to be the end of the story.  It will still be impossible to get a handgun in the District in practice, if not in law.  Why? 

Simple: There are no stores in DC selling handguns.  Unlike rifles and shotguns, it's illegal to buy a handgun outside of your home state.  DC, of course, is not a state at all.  That's going to complicate things, especially since the City may seen a backhand way to prevent handgun sales to its citizens by preventing gun stores from opening within the District.

Consider the case of Charles Sykes, who operates a business transferring firearms to law enforcement customers within the city.  Recently Sykes found himself in need of new space for his business:

When he applied for a permit in late February, a representative for Zoning Administrator Matthew Le Grant notified him his business could not operate in the District and that the agency would send him an official explanation shortly.

He visited Le Grant's office in April and has contacted Mayor Adrian Fenty's office and the Department of Consumer and Regulatory Affairs. So far, he's received no details in writing about the rejection.

"I think there is a political motivation to this," he says.

If the DC government can keep any gun stores from opening in the District, they can keep their handgun ban, at least until someone brings a lawsuit over it.  I suppose one way around that would be to register a firearm already owned; it would have to have been purchased while living in a different jurisdiction.  That would keep the numbers down, especially if the city can think up some creative legal roadblocks for that process too.

Hat tip for this one goes to a reader who knows who he is and is  much appreciated.

by way of Pajamas Media and the Volokh Conspiracy.

... and Obama is from Chicago and part of the legislature that has maintained that ban.  Not that I was in any doubt that McCain was better than Obama on guns before.  I'm wondering if this issue will be enough to ignite a debate on the firearms issue that will change the outcome of the election?  We'll see, I guess.

One awkward part:

"Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right -- sacred, just as the right to free speech and assembly," McCain said.

You mean like the First Amendment rights to free speech and assembly that your McCain-Feingold campaign finance "reform" act violated?

Snowflakes in Hell speculates a little:

The Court did not much address the issue of machine guns, but the "common use" test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that's entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I agree here.  We're going to have to bring a separate case for this at some point.  That case is going to rest on whether "in common use at the time" means that the government can ban something that's not in common use because it has been banned for 70 years.  I can't imagine an honest court letting that stand, but we only got 5 votes for a much less scary ruling today.  So let's not bring that case until we've added some precedents and case law and friendly judges, mmmkay?

I think there?s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey?s licensing restrictions can be construed to meet the standard of ?arbitrary and capricious.?  In fact, I would view this somewhat similar to ?seperate but equal?  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government?s permission, can always be subject to arbitrary and capricious standards.

Good thoughts.  The NRA has already announced that it intends to challenge the Chicago gun ban - that's an incorporation case and is the obvious next step. Pity they weren't so willing to help out with Heller at first.

On the ?bearing? of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

There's nothing that really hints at that in the syllabus, so I'll have to read the whole decision before deciding whether I agree or not.  But it's a better take on the result than I got.

As reported in the decision, the syllabus is prepared by the court staff for the convenience of the reader and does not have any binding legal language; it's just the summary version. I'm going to start my analysis there. It begins with a summary of the case:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.  Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Not much to say here.  It's an accurate summary. Next, the holdings:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

This is the core win for us. An individual right, unconnected to service in a militia, that protects not just hunting but also self-defense and other traditionally-lawful purposes.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.

Again, part of our core victory here.  The "militia clause" does not limit the right that is protected, although it may explain its purpose.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.

Again a necessary part of our victory.  Scalia's decision is basically blessing the "Standard Model" of the 2nd Amendment.

(c) The Court's interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

No surprise here -- other state Constitutions agree with this interpertation, often in language less easily confused.  Enforcement of those state Constitutional provisions has not always been ideal, though, or we'd have fewer gun control laws.  However, the example of Vermont, which has permitless concealed carry due to some court rulings to that effect, is instructive.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

It's of dubious worth because, after all, the drafters picked one final version.  However, the fact that many of the versions they began with included clearer individual rights language can be suggestive of how they thought about the proposed right.

(e) Interpretation of the Second Amendment by scholars, courtsand legislators, from immediately after its ratification through thelate 19th century also supports the Court's conclusion.

No surprise here.  The "collective rights" fiction is a 20th century invention designed to provide a convenient non-answer to Constitutional challenges to the National Firearms Act of 1934.

(f) None of the Court's precedents forecloses the Court's interpretation.  Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264 265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

This vindicates something I have been saying about Miller for a long time -- that the ruling was based on the militia status and type of the weapon, not the militia status of the person possessing it.  However, it also hints (not surprisingly, but disappointingly) that Scalia will be backing away from Miller's implied protection of military weapons. The result of applying Miller faithfully to modern laws would be... exciting. So Scalia is preemptively backing away here. We'll have to read this section of the actual decision to understand exactly where he's going.  More on the other cases later.  Next the syllabus has a laundry list of what we lost.  On the one hand, it's disconcertingly large and includes a lot of things I wish would rather not be there.  We'll have to read these parts of the decision closely to find out exactly how bad these concessions are, but it basically looks like most (if not all) existing federal laws regarding gun ownership will be preserved. 

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court?s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller?s holding that the sorts of weapons protected are those ?in common use at the time? finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Well, the result isn't unexpected, but we'll have to read it closely to understand the reasoning.  The only positive thing I can say about this part is that most of it will be dicta -- not necessary in order to reach the core ruling striking down the District's handgun ban.  Will that matter?  Probably not to lower courts, which will use this language to avoid striking down any federal laws that resemble those listed.  For future Supreme Court decisions, though, there may be some room.  Notably absent from Scalia's list of permitted infringements is the Lautenberg domestic-violence prohibition -- and the court is hearing a case next term on exactly that.  Interesting.  Also missing is any reference to an assault weapons ban.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition -- in the place where the importance of the lawful defense of self, family, and property is most acute -- would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.  Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

And this is the most disappointing part, even though it's the part that affirms the lower court and delivers us the actual win.  The court avoids setting a standard of review for firearms laws.  It explicitly validates licensing and registration requirements for simple possession.  The only bright spot is that it does so because Heller conceded those points in his argument -- later challenges to licensing and registration laws could conceivably have a different outcome.

So... a mixed bag.  5 votes to create an individual right that protects possession in the home for self-defense and other lawful purposes, but has a laundry list of exceptions.  No standard of review specified.   No word on incorporation, either.  Later courts will have to decide how much weight to give this court's dicta on which infringements are permissible and which standards of review to apply and whether state and local governments are bound by this right.  There's going to be a LOT of litigation on this topic.  Maybe I should consider going to law school.

Overall, it's a step forward.  We won on the fundamental question.  We now have an individual 2nd Amendment right that the courts can (and might even choose to) protect.  We'll have to fight for every scrap of protection we can get, though.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home.

And we seem to still have a Republic, too.  I'll be reading the decision today and posting any details that seem relevant over the next few days.  It's 157 pages.

Reading the syllabus is interesting.  It's a 5-4 decision, written by Scalia and joined by Roberts, Alito, Thomas, and Kennedy.  There appear to be two dissenting opinions, each of which received 4 votes.

Over at Concurring Opinions there's an excellent post on what we can expect if, as seems likely, Scalia is the author of the Heller opinion.  Short form:

What could that mean for the decision in Heller? As I'll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news -- at least in the short term -- for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.

Read the whole thing.

According to ScotusBlog's liveblog, the decision in Heller v DC was not issued today, but Chief Justice Roberts indicated that all remaining decisions for this term will be issued tomorrow (Thursday, June 26th) at 10am.  

I won't write at length.  But I'm watching.  By noon today, we will know if we have kept our Republic.

UPDATE: Looks like nothing on Heller yet.  More decisions announced on Wednesday, and possibly even more on Thursday.  Speculation on various other blogs is pointing at Scalia writing the opinion, which (if borne out) is probably a good thing for our side. 

UPDATE: ScotusBlog summarizes why they think Scalia may be writing the 2nd Amendment opinion:

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller ? the D.C. guns case.  That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting.  There is no indication that he lost a majority from March.  His only dissent from the sitting is for two Justices in Indiana v. Edwards.  So, that?s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

Their reasoning makes sense to me, but of course it's still reading tea leaves until the decision is announced.

A Canadian legal reporter wants to write about the upcoming Heller decision in the US Supreme Court.  But, well, he's Canadian and he writes for a Canadian paper.  There's got to be some sort of hook.  That's how paragraphs like these made their way into the article:

As Mayor David Miller and provincial leaders urge Ottawa to outlaw handguns, Americans are waiting to see if the United States Supreme Court will shoot down one of that country's strictest gun control laws.

Reading that makes me wonder if there's really a risk of this author's readership believing that a US Supreme Court ruling would have any force in Canada?

Whatever the U. S. Supreme Court decides, legal academics north of the border say the ruling is unlikely to have much of an impact on Canada's legal landscape because our Constitution is so different, even through politicians in both countries are struggling over gun violence.

I guess there IS that risk.  The article's not bad otherwise and surprisingly balanced.  I just did a double-take every time the author had to explain why it really wouldn't matter to Canadians what the US Supreme Court rules in the case.

For those not in the know, Robert Levy is one of the counsel for the case.  Kudos to the Washington Times for publishing what he has to say. In this case it's mostly about the procedural problems with the Miller case that contributed to a weak and confusing ruling.

The Supreme Court is edging closer and closer to the deadline for publishing a legal decision in the Heller case.  Mike O'Shea has an article describing the points to look for in the decision.  It's a good piece to read now, and use as a checklist later as you read the actual published decision.  It also has a few interesting points that I haven't seen raised elsewhere, including discussion on what happens next (challenging Chicago's handgun ban to resolve incorporation issues?) and what happens to the other 5 plaintiffs in what used to be Parker v DC rather than Heller v DC.

There's a medium-length article on the Heller case in a Kansas newspaper.  Unfortunately I let this post sit in the queue long enough that the article itself appears to have expired.  However, before it disappeared, I did snag one memorable quote from the Brady Bunch:

"Jails and courtrooms are filled with people prosecuted and convicted for violating gun laws," said Jonathan Lowy, senior attorney for the Brady Center to Prevent Gun Violence. "If I'm a defense attorney trying to think of how to get a gun criminal off the hook, one argument is he was executing his constitutional right to keep and bear arms."

The bold type is mine.  In the minds of the gun bigots, there are gun criminals, people who should be locked up merely for having or wanting to have a gun.  The assumption is that anyone who has a gun is a criminal -- otherwise innocent men and women turned into criminals not for any malicious act, but for merely the morally-neutral act of possession.

Because, of course, the 2nd Amendment does not protect violent crimes like murder, rape, or battery.  It protects the peaceful ownership and use of arms.  Anyone who is in jail, or on trial, merely because they had a gun is not a criminal.  They are a victim of deprivation of civil rights under color of law.

If they used that gun to commit some other crime of violence, or even credible intimidation (where intimidation does NOT mean accidentally letting someone see a gun), throw the book at them.  But just possession, keeping or bearing, for a non-felon?  That's not a crime, that's a right.

It seems the Supreme Court has decided to take another case relating to gun rights.  It's an interesting choice.  The underlying question is whether someone convicted of a misdemeanor battery charge -- basically punching someone -- is allowed to possess firearms. 

This normally wouldn't be a bar to gun ownership, since it's a misdemeanor; federal law bars gun possession for those convicted of felonies.  However, there's another section of the law, termed the Lautenberg amendment, which bars gun possession for those convicted of domestic violence misdemeanors.  Although the law under which the defendent was convicted was not specific to  domestic violence, the victim was his then-wife.

Later, the police arrested him in a domestic-violence incident and found that he had firearms, which triggered the charge for firearms possession as a prohibited person.

The question thus is, does the nature of the relationship make the conviction a domestic violence crime, or does the law have to be specifically written to include the domestic-violence criteria?  The West Virginia court seems to have arrived at a different answer than other courts, hence the appeal to the Supreme Court (by the Justice Department). 

In light of Heller, I have got to believe that the DoJ specifically picked this case to appeal in an effort to ensure that they have a "favorable" case before the Supreme Court before gun-rights advocates have the chance to take another bite at the Emerson apple.  (Emerson was a 5th-circuit domestic violence case that famously found for an individual 2nd Amendment right but nonetheless upheld the domestic-violence statute as "minimally" passing due-process muster).

What attributes of the domestic violence case make it good for the anti-gun side?  Well, let's see.  It's a federal law, so they can avoid the incorporation question and any interference from state Constitutions.  They got lucky in getting a result here that creates a circuit split with an unfavorable plaintiff. 

If I had to guess, I'd say that the four votes necessary to grant cert in this case came from the "liberal wing" of the court, seeking to follow the Heller ruling with another case that will limit any damage Heller does to gun control laws. 

This is not the case we want leading the charge after Heller.

The only bright spot is that the question presented to the Supreme Court doesn't address the 2nd Amendment directly, but I rather suspect it will be addressed in the opinion nonetheless.

... and he basically explains why he took the positions he did before the court, even if they were bound to disappoint some.  It's good reading to understand the thought process behind the arguments (especially if you have a gripe about things said or not said) and is still short enough to be a quick read.

Alan Gura has responded to some of his critics on subguns.com, who were concerned about having machine guns thrown under the bus to save the individual right for other firearms. 

Thanks for your support.

The solution to 922(o) will have to be political in the end. The fact is, outside the gun community, the concept of privately owned machine guns is intolerable to American society and 100% of all federal judges. If I had suggested in any way -- including, by being evasive and indirect and fudging the answer -- that machine guns are the next case and this is the path to dumping 922(o) -- I'd have instantly lost all 9 justices. Even Scalia.  There wasn't any question of that, at all, going in, and it was confirmed in unmistakable fashion when I stood there a few feet from the justices and heard and saw how they related to machine guns. It was not just my opinion,
but one uniformly held by ALL the attorneys with whom we bounced ideas off, some of them exceedingly bright people. Ditto for the people who wanted me to declare an absolute right, like I'm there to waive some sort of GOA bumper sticker. That's a good way to lose, too, and look like a moron in the process.

I didn't make the last 219 years of constitutional law and I am not responsible for the way that people out there -- and on the court-- feel about machine guns. Some people in our gun rights community have very.... interesting.... ways of looking at the constitution and the federal courts.

I don't need to pass judgment on it other than to say, it's not the reality in which we practice law. When we started this over five years ago, the collective rights theory was the controlling law in 47 out of 50 states.
Hopefully, on next year's MBE, aspiring lawyers will have to bubble in the individual rights answer to pass the test. I know you and many others out there can appreciate that difference and I thank you for it, even if we can't get EVERYTHING that EVERYONE wants. Honestly some people just want to stay angry. I'm glad you're not among them.

You want to change 922(o)? Take a new person shooting. Work for "climate change."

Thanks,
Alan

Very good points.  I would just add to that, we have to have an individual right to possess basic firearms, period, before we can address the question of whether we have an individual right to possess scary firearms.

... of the gun industry advertising to criminals.  The only source I know of for this persistent anti-gun meme is the ad run by a manufacturer advertising his gun's "fingerprint-proof" coating.  In actuality, the coating prevented the residue of skin oils from rusting the finish of the gun if you forget to clean the gun after handling it.  In anti-gun mythology, of course, it was the perfect murder weapon.  In terms of actual evidence, I believe I've seen the ad, but don't have a copy of it.

If pressed they would probably also cite ads for "concealable firearms"; never mind that concealed carry is legal, with appropriate licensing, in nearly all states.

Another similar myth is the idea that gun manufacturers deliberately flood the market with guns "just outside" of gun control areas to facilitate gun smuggling and artificially lower the price of guns.  The real answer is obvious: when stores order guns to sell and have their FFL in proper order, manufacturers provide them with guns to sell.

But since when has a lack of evidence for anything stopped the other side?

UPDATE: Oh, and I forget two other classic examples. 

Gun bigots are often fond of pointing to "plastic guns that won't show up on metal detectors" which obviously MUST be intended for criminal use.  Nevermind that they don't exist.  (Glocks, which pioneered the polymer-frame handgun, have more than enough metal parts to show up on metal detectors).  I suppose if someone wanted to build a plastic handgun that doesn't show up on metal detectors, and could manage to produce one strong enough to do so safely, they would be marketing to criminals, since I believe laws have been passing banning this thing that doesn't exist.  But don't quote me on that, I don't recall any details.

The other favorite target is "armor piercing ammunition".  Insofar as it exists, and doesn't mean simply "using more gun than the armor was designed to stop", I believe ammunition that makes any claim to piercing armor is marketed to military and law enforcement rather than criminals.  I have no idea whether any of it works when fired from a handgun rather than a rifle. 

Can you imagine Heller v DC as a gay rights case?  Yes, you can.  But not special rights.  The same rights everyone else has.

... because they feel he was conceding too much.  Lots of people have that viewpoint.  I'm not as concerned about it as most, because we have to keep in mind the question that's being ruled on in the case.  This is a case about an absolute ban on functional firearms.  The only goal in this case is to get the Supreme Court to strike down DC's gun laws, and in doing so, say that the 2nd Amendment protects an individual right which ordinary citizens can invoke against complete bans on functional firearms or certain classes of firearms. 

That's a very, very, very big step for the court to take.  Remember how difficult it has been to get any court to admit to a 2nd Amendment right in any situation at all.  If we push for too much here, we might lose the whole thing.

Our strategy is simple:

1. Force the Supreme Court to admit that the 2nd Amendment protects an individual right from a complete ban on firearms under Federal law.
2. Force the Supreme Court, in another case, that the 2nd Amendment protects an individual right from a complete ban on firearms under state law (a doctrine known as incorporation).
3. Force state or federal courts to overthrow irrational bans (assault weapon bans).
   
4. Force state or federal courts to overthrow "may-issue" licensing systems for gun possession.
5. Force state or federal courts to overthrow "no-issue" concealed-carry states (the right to bear arms), even if they choose to have a licensing system.
6. Only then do we consider trying to overturn the 1986 machine gun "ban" (on new manufacture), because machine guns are scary and we need the precedents lined up to make the conclusion inevitable.  Even at this stage we leave the NFA licensing system in place.
7. Once we have a substantial period of time without serious "machine gun crime", we can consider turning the NFA system into "shall issue".

Basically, what we need to do here is establish that licensing and regulation are acceptable, but complete bans or licensing systems that effectively create complete bans are not.  If we push for too much, the justices will balk and uphold DC's law for fear of the consequences of their precedent, and we'll be far worse off.

The best outcome for our side is actually not a "strict scrutiny" ruling that would immediately overturn everything we object to.    Such a ruling would cause all kinds of chaos and disruption.  We need to take it one step at a time and demonstrate to everyone that the world does not end at each step.

That said, some of the questions directed at Gura could have been handled better -- from a comfortable armchair with all the time in the world and no pressure.  As far as I'm concerned he did a great job, better by far than I could have done.

... and you saw it on TriggerFinger!

It being, in this case, Joe's posting of email from Alan Korwin, who was at the Heller argument and has a lengthy analysis of it, once of the most coherent I've seen so far on short notice.

There's a lengthy analysis of the Heller arguments over at Leibowitz's Cantlcle.

David Hardy was at the court during the argument, and has his notes in PDF form.  No real insights since transcripts and audio are available, but I'm feeling completist.