The Black Bear Blog is disappointed with Gura's argument..
... 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:
Force the Supreme Court to admit that the 2nd Amendment protects an individual right from a complete ban on firearms under Federal law.
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).
Force state or federal courts to overthrow irrational bans (assault weapon bans).
Force state or federal courts to overthrow "may-issue" licensing systems for gun possession.
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.
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.
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.
This entry was published Thu Mar 20 00:54:26 CDT 2008 by TriggerFinger
and last updated 2008-03-20 00:54:26.0.