Alan Gura on Machine Guns

Copied in its entirety from is a post by Alan Gura on why he said the things he said about machine guns during oral arguments.  If you don’t recall, people had been complaining that he threw NFA stuff under the bus, etc.  As a side note, I would like to have seen any of the people complaining do better, but that’s neither here nor there.

Below, you’ll find Alan’s entire post, no edits or changes have been made.

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


He is absolutely, unequivocally correct in this matter.  If you want to lose a gun rights case, tell the judges that your next goal is unban machine guns.  Even conservative justices would not be on board with that.

What it comes down to is that Alan Gura is dealing with the political reality of the situation, of how law is actually practiced in this country.  If we win, and we get an individual right decision from the Supreme Court, then we’ve established a solid foothold in winning this fight, but like so many other people have said this is just the first step.  We’re not going to get Machine Guns for the People, and we’re not going to get some absolute right declaration from the Supreme Court; if Alan had gone in and asked for that he would have been laughed out of DC.


  1. First off, this particular case was not about NFA weapons,but the RIght to have a hand gun in DC and if the People have a right to have guns according to the Constitutions.

    Sure, he could have handled it better, but that is after the fact and arm chair quarterbacking. He did the best he could and I believe he will achieve the for mentioned task.

    NFA laws and other federal regulations will take years to take on, so we just need to be as patient and diligent as the opposing side is.

  2. Gura couldn’t have avoided talking about MG’s, the Justices would’ve drawn it out of him in any case. Regrettable also that he had to invoke mythological, non-existent entities like “plastic guns that can evade metal detection” but I guess for the sake of the legal thought experiment all he was saying is that IF such tools COULD be manufactured (nevermind if they can be right now–which they can’t) then they could be argued to be reasonably subject to certain restrictions. The Law is a funny thing…you’d think reason, scientific validity and truth, especially historical truth, would have more bearing than they actually do in legal settings, but they simply don’t.

    Gura made some very excellent points and Ithink it was a win for our side.
    The DC litigator was utterly incoherent & ridiculous, by contrast.

  3. I was kind of concerned about those armor-piercing bullet statements made by the justices as well. But there just wasn’t the time to fight every battle and correct every inaccuracy.

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