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Thread: My letter to Gura and his response

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    I wrote Alan Gura on his website earlier this evening and he wrote me back:

    My email:

    From: xxx223@comcast.net Sent: Wednesday, March 19, 2008 9:00 PM To: alan@gurapossessky.com Subject: Contact from Website Name: Chris Watson Email: xxx223@comcast.net Phone: xxx-xxx-xxxx Comments: Counselor, Overall I am happy with what looks like a positive outcome for individual rights. I think this is a 'win' for your client However, I also think you just shafted the Class 3 crowd with a rusty jackhammer in our anal cavity. Today, machine guns **ARE** legal to own in the United States by private civilians; the issue at hand is the current ban on importation and civilian use (Police and military can buy whatever they like). It was obvious that you were unaware of the status of machine gun ownership and the way that ban was accomplished in 1986. You had an opportunity to take a pro-gun, pro-right, pro-militia and pro-individual stance all at one and you fumbled. Machine gun ownership satisfies three separate and interconnected issues: 1) The ability of the populace to own weapons in common use by the Army ('militia'); 2) The right of the individual to keep and bear such an arm; and 3) the ability to of the populace to overthrow a tyrannical government requires the populace to have some minimal degree of parity with standing forces. Your argument in favor of 'reasonable restrictions' was the worst gaffe I think Iv'e ever seen; you may have very well opened the path to restriction by legislation! I can’t believe that you screwed up - and screwed gun owners - so badly.

    Alan's Reply:


    If I said any of that, I'd have lost 12-0. they'd quickly confirm 3 additional justices just to vote against us. You don't know what you are talking about. Get this -- everyone except for hard core gunnies HATES machine guns and will not accept a Second Amendment that protects them. And there is no such thing as an absolute right in our constitution. First Amendment? Look at McCain-Feingold. Abortion? Undue burden. And those rights are a little more established right now in this court. But no, Mr. Extremist take no prisoners fantasy-land armchair constitutionalist, YOU think with the right to arms, of all places, right now, they'll suddenly declare there's an absolute right AND it includes MACHINE GUNS. Insane. Even though there is BARELY agreement that it's even an individual right in the first place! My job is to make arguments within the realm of REALITY. You know, the USA that exists on Earth in 2008, not some science fiction alternate reality that exists in your fantasy world. Maybe it's an imperfect legal landscape. I'm not responsible for the last 219 years of constitutional law, of which you are utterly ignorant. You don't deserve having me defend your constitutional rights, be very happy it was me up there and not some wacky nut with absolutely no sense of how the law works. Ingrate lunatic.
    I did apologize to him and offered him an opportunity to come to the VCDL meeting. The last part concerns me because I wonder why he took a 'pro-bono' case if he wasn't a 'true beleiver' and thinks that those of us who want machine guns are 'nuts' and 'wackos' and 'ingrates'.

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    Alan's completelyright (except for you being an ingrate lunatic ).

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    Founder's Club Member - Moderator longwatch's Avatar
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    One might consider that hes probably been inundated with emails even less polite than Docs. Also his arguments were tactical not strategic, by limiting the scope of his argument he can achieve the goal of winning for his client and by not bringing Miller into it leaves that door open in the future. Its the don't throw me into the briar patch kind of strategy.

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    longwatch wrote:
    One might consider that hes probably been inundated with emails even less polite than Docs.
    Yeah, I'm surprised he even bothered to answer you, doc. All that business about telling him he stuck a jackhammer in your ass, well, that was a bit over the top, I think.

    And you might consider the possibility that he's not a "true believer", but he just thinks his client should be allowed to own a handgun. And the fact that he didn't just delete your rude email after the jackhammer comment but instead bothered to read the rest shows that at least he listens once in a while.

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    He may very well be a true believer, but still wants to win his case. Any arguments he makes in front of the Court don't foreclose those arguments later to be made by another attorney (who will be backed up, hopefully, by a good decision in Heller).

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    I liked the line "You don't deserve having me defend your constitutional rights, be very happy it was me up there and not some wacky nut with absolutely no sense of how the law works."

    Would someone like to tell him that we can do quite well with defending our rights, and only need the knowledge of how to convert a good number of AR's and AK's? We're just doing the country the courtesy of playing by the "rules" while we still can.

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    Founder's Club Member - Moderator longwatch's Avatar
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    imperialism2024 wrote:
    I liked the line "You don't deserve having me defend your constitutional rights, be very happy it was me up there and not some wacky nut with absolutely no sense of how the law works."

    Would someone like to tell him that we can do quite well with defending our rights, and only need the knowledge of how to convert a good number of AR's and AK's? We're just doing the country the courtesy of playing by the "rules" while we still can.
    If thats what you believe then you ought to thank him for saving your life too.

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    Alan and I continued our discussion - which will remain private - and he's actually pretty cool.

    I owe him a beer for that jackhammer comment though...:shock:

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    I sympathize with Alan Gura, having been in a small way in his spot.

    We owe him some debt of gratitude for battling in an arena few understand.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******

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    I sympathize with Gura also but I think he missed a golden opportunity by being too willing to concede to the other side. Both Roberts and Scalia tried their best to lead him on and because he's not a true believer in the 2A he stayed the course that he truly believed in.

    Machine gun? What's a machine gun? Who's definition are we talking about here? DC's definition of "machine gun" is any firearm that holds 12 or more rounds without having to be reloaded. Itmakes no differencewhether it's automatic, semi-auto, revolver or 22 cal. rifle.

    Gura had a chance to say: "yes, those are the kinds of weapons, military weapons, thatthe Founding Fathers 'intended' us to have". He could have then just left it at that.

    Gura did us no favors contrary to his arrogance. Fortunately for us we have enough justices on the SCOTUS who understand the Constitution better than he does.

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    We can all armchair quarterback this with our superior knowledge of internet lore. However in the context of thehearing Mr. Gura contradicts himself by his machine gun comments. It was a plank of his argument that the district cannot simply ban an entire class of'arms' as it does, and yet when the question is put to him about the ban on an entire class of arms as it applies to machine guns, he undercut his own case. If it's ok to ban that class of arms to the citizens then surely it is permissible to ban handguns.

    Remember, Dellinger's argument was that handguns are MORE dangerous than machine guns.

    The justices enjoy taking lawyers to task in their case work and this was no exception. They did a very good job of itwith Gore's lawyer in Bush v. Gore. I think that it was their intent to browbeat Heller into conceding that a ban on an entire class of arms is acceptable.



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    Toymaker wrote:
    Gura had a chance to say: "yes, those are the kinds of weapons, military weapons, thatthe Founding Fathers 'intended' us to have". He could have then just left it at that.


    No he couldn't have just left it at that. From that point on, all of his time that he could spend arguing things that are actually relevant to his case would've been spent picking apart that statement and would've added more fuel to the soliticitor general's argument that they should rule against heller simply because it might legalize machine guns. Gura was saying, no, that's not at issue here, let's forget about it.

    I've said it already, I'll say it again. BUSH brought machine guns into this court battle. It never was and never would've been about machine guns if Bush wouldn't have interfered and said, "Hey don't rule for him or else you'll have to strike down my machine gun laws!"

    You probably are not aware that the biggest chance we have at losing is not DC winning. It's the Justice Department winning. There is, in fact, still a chance that wecould lose on the DOJ's argument alone, and you saw a few of the justicesadopting it as their own (mainly Breyer). Bush's argument was the most damaging to this case (I would say it was damn near fatal)and Gura and co were firing on all cylanders to beat back that argument. You may not understand this, but the Heller team was almost sure of victory until the Solicitor General filed his "mid-level scrutiny"brief. After that, the entire focus of the case changed from what it should've been about - self defense - to machine guns. Gura didn't talk about machine guns for the same reason that Hillary doesn't start every presidential speech with, "Awhile ago, a vast right wing conspiracy...." She may believe that's true, but she'll never win if that's her position.

    You might as well stand up in front of the court and say, "Your honors, in order for me to win my first amendment case, you all are going to have to agree that slander is covered under the first amendment." It may well be coverd under the first Amendment, butyou're much less likely to get thejustices to agree with your side if you say that. It'sgoing to hurt, never help, my argument to say that. Concede the irrelevant point and move on. This isn't about grandstanding.

    And how do you know he's not a true believer? He made an argument that could win, based on Supreme Court Precedent. That's what this is about, winning. Not grandstanding.




    Sorry for all the long posts. I'm just damn sick of us eating our own for no reason. We do it to the NRA and now we're doing it to Gura who's given a large portion of the last 5 years of his life to this case. And people want him to just throw that away - and with it our chances of some favorable court rulings - inorder to "make a point." He doesn't deserve anything but our sincere thanks.


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    Yes, it IS an issue here because when he walked into that trap, the justices were able to make him admit that it was permissible to Heller for the amendment to be infringed by banning a class of firearms. A different class mind you, but an entire class nonetheless.

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    Mr. Y wrote:
    Yes, it IS an issue here because when he walked into that trap, the justices were able to make him admit that it was permissible to Heller for the amendment to be infringed by banning a class of firearms. A different class mind you, but an entire class nonetheless.
    We'll see.

    I know one thing: Justice Kennedy would never rule in favor of someone if he thought it meant striking down machine gun laws, which is why theBush Administrationlatched onto that unrelated issue in their brief. It was something of a catch-22 after that.

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    One thing for sure, they have plenty of reading material. Wasn't it Kennedy who started off with indicating that it was worded pretty well and was pretty clearly an individual right?

    I think that what may happen is that they will say the DC ban is unconstitutional as applied. You can bet DC already has changed iterations of of the law which will implement stringent requirements and burdensome hoops.

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    Mr. Y wrote:
    One thing for sure, they have plenty of reading material. Wasn't it Kennedy who started off with indicating that it was worded pretty well and was pretty clearly an individual right?

    I think that what may happen is that they will say the DC ban is unconstitutional as applied. You can bet DC already has changed iterations of of the law which will implement stringent requirements and burdensome hoops.

    Yes, Kennedy was a pleasant surprise. From what I read though, he's a justice who usually reads rights very broadly and then comes up with 1,000 "exceptions" to those rights. You can guarantee that machine guns are an "exception" to the broad right he seemed to embrace during oral arguments. He'll say there's a "compelling government interest" in regulating them. I hope I'm wrong. That's another case that won't be heard for at least 5 years, probably more.

    And yes, you can bet DC's law will be very, very, very hard to walk through.

    If we have a favorable outcome, I'll be looking forward to the "keep and bear" arms part of the 2nd Amendment to see what they say about that. Could Illinois and Wisconsin law banning carrying be struck down?

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    Mr. Y wrote:
    Yes, it IS an issue here because when he walked into that trap, the justices were able to make him admit that it was permissible to Heller for the amendment to be infringed by banning a class of firearms. A different class mind you, but an entire class nonetheless.



    Exactly!



    ama-gi,

    Gura could have squashed this argument by just stating what the Founding Father's intent was and leaving it at that, but he didn't because he doesn't believe it himself. It wouldn't have been grandstanding, it would have been the truth. Roberts and Scalia were simply looking for more ammo to use in support of their position. According to DC's law any weapon can be configured as a "machine gun" and handguns are also a class of weapon.

    If one class of weapon can be banned then what's to keep another, then another, and anotherfrom going the same route? Because one is more 'inherently' dangerous than the other?

    DC's argument is that handguns are more inherently dangerous than other guns because of their easy concealability. The Fedsarguethat machine guns are inherently more dangerous thereby justfying their strict regulation too, don't they?

    Our saving grace will be that DC's law is a total ban that even Kennedysees serious fault with.


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    I think everyone is missing something here. You all only heard the oral arguments, and not the reason for arguing the case. At the Gun Rights Policy Conference last year Mr. Gura was a main speaker about the case at hand. Mr. Gura explicitly told us he had modeled the case and the question to be resolved by the USSC to be VERY narrow.

    1: Does the 2A guarantee an individualRKBA?

    2: If the right is for individuals, does the DC handgun ban violate that right?

    He did not want to get into ANY other issues, he wanted the justices to focus on two key aspects and provide a ruling which would lay the framework for future litigation.

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    No, we're not missing that aspect; we agree with it.

    My point is that he walked into an argumentative trap by conceding the point that a class of firearms could be banned without infringing (unreasonably, another concession he made ) the 2A. If you remember, they discussed machine guns as a separate class, disagreeing on semantics. Gura was making an argument thatDC's total ban on handguns fails the scrutiny test at any level not just strict scrutiny because an entire class of weapons (arms) was banned and the rest rendered unusable as a matter of statutory law. Once he conceded that he felt machine guns could be banned, he conceded the defendant's case for them which is that the ban on handguns is reasonable as a matter of public safety.

    Technically, he abdicated his argument entirely with that answer. If one class can be banned, then any class can be.

    We understand he was trying to stay focused on his issue, the problem is he didn't, he strayed rather than deferring the question to another day. In doing so, he admitted that a class of firearms was able to be banned constitutionally and basically undercut his entire argument.

    Essentially, he was not worthy to be arguing the very rights we exercise and should have kept his piehole shut.





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    Toymaker wrote:
    Gura could have squashed this argument by just stating what the Founding Father's intent was and leaving it at that
    And then taken the rest of his 30 minutes to argue with the justices about different quotes and state constitutions or intentions barely related to his case if at all, creating enemies on the court unnecessarily?

    but he didn't because he doesn't believe it himself.
    You don't know that. Whether or not he does is completely irrelevant. Any competent attorney would've conceded that point in this case. Next year, with a different client, maybe he'll argue differently.

    Essentially, he was not worthy to be arguing the very rights we exercise and should have kept his piehole shut.
    I had a long reply here, but I deleted it. I explain why in the quotebelow. My argument, boiled down, was just that there was no upside for him to argue that point but there was a huge downside. There was no upside because - the point not being at issue - he can still argue the opposite way in a different case and it doesn't hurt our cause. It also doesn't hurt any future machine gun cases (actually helps it)

    You are all honorable men (and women) and far be it from me to say I don't understand someone who wishes to stand on principle. For that reason, I don't think I'll argue about this anymore. No good can really come of it.

    You all know my position:demanding wheat bread andthrowing away rye bread when both would give you the same nourishmentis a good way to starve to death. And bread is awful sweet when you haven't had any for 219 years.

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    Ama, the way you write reminds me of someone...

    You dont' practice law by any chance?

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    docwatson wrote:
    Ama, the way you write reminds me of someone...

    You dont' practice law by any chance?
    Lol, no I don't. Who do I remind you of?

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    You are all honorable men (and women) and far be it from me to say I don't understand someone who wishes to stand on principle. For that reason, I don't think I'll argue about this anymore. No good can really come of it.

    You all know my position:demanding wheat bread andthrowing away rye bread when both would give you the same nourishmentis a good way to starve to death. And bread is awful sweet when you haven't had any for 219 years.

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    ama-gi wrote:
    Toymaker wrote:
    Gura could have squashed this argument by just stating what the Founding Father's intent was and leaving it at that
    And then taken the rest of his 30 minutes to argue with the justices about different quotes and state constitutions or intentions barely related to his case if at all, creating enemies on the court unnecessarily?
    but he didn't because he doesn't believe it himself.
    You don't know that. Whether or not he does is completely irrelevant. Any competent attorney would've conceded that point in this case. Next year, with a different client, maybe he'll argue differently.
    Believe it or not I honestly think that he'll do much better the next time around. It's the curse of being the pointman in anything.........constructive criticism.

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    Guys - the main effort of this case was to affirm the lower court's opinion as consistent with existing S. Ct. precedent, including Miller, which appeared to say that uncommon and unusual weapons like machine guns and short barrelled shotguns are NOT protected by the Second Amendment.

    The law tends to move in small increments. If Heller results in a clear S. Ct. affirmation for the Second Amendment securing an individual right to keep functional garden variety guns at home, that is not just a victory, but arguably the maximum victory possible under the facts of the case and legal docrines relating to facial challenges to a criminal statute.

    Now, I suspect that buried in Heller will be some dicta suggestingnew tests that might someday be applied by lower courts percolating gun rights questions over a period of years, and decades. But such tests are not required it seems to me in Heller - the Court appears ready to sweep aside broad gun bans without even resulting in application of a scrutiny test crafted forthe Second Amendment.

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