As far as Alan Gura is concerned, those of us who think he threw automatic weapons under the bus in his arguments on Heller are wrong:
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.
Mr. Gura's right, but he's wrong. Let's have the quote from the transcript again:
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.Note that the Justice Ginsberg asked for an example, and Mr. Gura offered up machine guns. He could have just stuck with those non-existent plastic guns of the Solicitor General, or he could have offered up RPGs or shoulder-launched anti-aircraft missles or atom bombs. Instead, he offered up machine guns.
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.
Now, it could be that, given what had transpired earlier, he felt he had to do so--that the justices were looking for this one. Being the one on the ground, I'm willing to defer to his judgment on the point. But I'm also pretty damn well versed in tactics, and one thing I've learned is to never underestimate your opponent. Trust me when I tell you that, a few years down the road when he gets his machine gun case he wants to take to SCOTUS, these exact words will come back to haunt him--and us. These people may hate our freedoms, but they aren't stupid.
Mr. Gura, I appreciate your efforts, and I know you've put a lot of your career into this single case. I understand that the thrust of the case was to have the Second Amendment declared an individual right, and anything that diverged from that goal was something that had to be minimized. (You see, I'm not a moron, thanks all the same. I can think and reason quite well. I can even read texts on legal theory, in between picking off fleas and marrying cousins.) But did you have to do it at all costs?
Words matter, and one of these days, those words are going to matter a lot.