Copied in its entirety from subguns.com 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
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.