TexasCHLforum.com

Apparently, Mr. Heller wasn't as impressed with Alan Gura's representation of him, as was Mr. Doherty. Mr. Heller didn't hire Gura to represent him in the second suit he filed against Washington D.C. (a/k/a Heller II). Guess who he came to for help?

Chas.

KBCraig wrote:

Charles L. Cotton wrote:Well Kevin, KC5AV has quoted Gura's exact wording you wanted to see, so are you ready to condemn your fellow libertarian for his stance that machine guns aren't protected by the Second Amendment? His post has been up for six days but we haven't heard from you.

Sure, that's easy: he's wrong.

What's amusing to me is that you're criticizing him for agreeing with you. Are you saying an NRA lawyer wouldn't have made the same argument? The same NRA that agreed to the MG ban?

I can absolutely guarantee I would not have made that argument. He was the one who brought up the subject! I would never have done that and I would have avoided answering an irrelevant question, had one of the justices asked.

Back to Gura. Can't you give me a little more than "he's wrong." Here is what you said about the NRA:

KBCraig wrote:For their educational, training, and legislative efforts to make things better, I salute the NRA (and that's why I am a member). For the roadblocks they throw up in the path of those who would be more bold, I condemn them. And for their acceptance of the idea that the 2nd means something less than what it says --for all guns, for all people-- I have nothing but contempt.

Why doesn't you level of disagreement with Gura's position on machine guns rise to the level of contempt?

This is what really galls me Kevin. Your contempt for the NRA not supporting "all guns for all people" knows no bounds. You have expressed those feelings for years, both here on TexasCHLforum and on tx.guns. You even blame the NRA for the 1934 NFA! But when one of your fellow libertarians, Alan Gura, walks into the U.S. Supreme Court and voluntarily throws machine guns under the buss for absolutely no reason, you offer only a very mild negative comment. That's a double standard and it's hard to swallow.

Chas.

Well Kevin, KC5AV has quoted Gura's exact wording you wanted to see, so are you ready to condemn your fellow libertarian for his stance that machine guns aren't protected by the Second Amendment? His post has been up for six days but we haven't heard from you.

Chas.

KC5AV wrote:Is this the exchange in question?

JUSTICE KENNEDY: But you were about to tell us before ae course of questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?

MR. GURA: Oh, yes. Yes, Justice Kennedy.

The right of the people to keep and bear arms was derived from Blackstone. It was derived from the common-law English right which the Founders wanted to expand. In fact, the chapter in which Blackstone discusses in this treatise, his fifth auxiliary right to arms is entitled --

JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms "under law." And since he uses the words "under law," he clearly foresees reasonable regulation of that right. And so, does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons? I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790 or whenever, with their rifles, with their muskets, but only the officers were to bring pistols. So that to me suggests they didn't see pistols as that crucial even then, let alone now.

MR. GURA: Well, certainly they saw --

JUSTICE BREYER: What's your response to the question?

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.

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.

The fact is that this Court's Miller test was the only guidance that we had below, and I think it was applied faithfully. Once a weapon is, first of all, an "arm" under the dictionary definition -- and Webster has a very useful one -- then you look to see whether an arm is meant to be protected under the Second Amendment.

And we apply the two-pronged Miller test, and usually one would imagine if an arm fails the Miller test because it's not appropriate for common civilian applications --

JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that that is standard issue in the military.

MR. GURA: But it's not an arm of the type that people might be expected to possess commonly in ordinary use. That's the other aspect of Miller.

Miller spoke about the militia as encompassing the notion that people would bring with them arms of the kind in common use supplied by themselves. And --

CHIEF JUSTICE ROBERTS: Is there any parallel --

JUSTICE GINSBURG: At this time -- I would just like to follow up on what you said. Because if you were right that it was at that time, yes; but that is not what Miller says. It says that the gun in question there was not one that at this time -- this time, the time of the Miller decision -- has a reasonable relationship to the preservation or efficiency of a well-regulated militia. So it's talking about this time.

MR. GURA: That's correct. The time frame that the Court must address is always the present. The Framers wished to preserve the right to keep and bear arms. They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence.

However, the fact is that Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of --

KBCraig wrote:

Charles L. Cotton wrote:Here is the exchange between Justice Breyer and Gura where Justice Scalia had to tell Gura to answer yes.

That was an exchange between Breyer and Scalia, not Gura.

No it was not. I was listening to the oral arguments and I've read the transcript. Justice Breyer was asking Gura a question and he was about to answer "no." That's why Justice Scalia had to step in. As I noted, the entire courtroom erupted in laughter.

Justice Breyer and Gura were discussing handguns and the military and Gura had just finished saying "numerous military officers at the highest levels of the U.S. military . . . agree with us that the handgun ban serves to weaken American's military preparedness. (Pg. 51, line 25 - Pg. 52, line 5). Justice Breyer then asked "But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necesary, is it unreasonable for a city with that high crime rate to say no handguns here?"

At that point, Justice Scalia said, "You want to say yes." (Pg. 52, line 25- Pg. 53, 6) There had been no dialog between Justices Breyer and Scalia, only a question to Gura. Here is the exact exchange:

Heller Transcript, Pgs. 51-53 wrote: MR. GURA: Because, Your Honor, for the same reason it was offered by numerous military officers at the highest levels of the U.S. military in all branches of service writing in two briefs, they agree with us that the handgun ban serves to weaken America's military preparedness. Because when people have handguns handguns are military arms, they are not just civilian arms -- they are better prepared and able to use them. And, certainly, when they join the military forces, they are issued handguns. And so if we assume that the sort of military purpose to the Second Amendment is an individual right, then the handgun ban, as noted by our military amici, would impede that.

JUSTICE BREYER: Well, I didn't read -- I read the two military briefs as focusing on the nature of the right, which was quite a pretty good argument there that the nature of the right is to maintain a citizen Army. And to maintain that potential today, the closest we come is to say that there is a right for people to understand weapons, to know how to use them, to practice with them. And they can do that, you see, with their rifles. They can go to gun ranges, I guess, in neighboring States. But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA: You want to say yes.

JUSTICE BREYER: Now, why?

JUSTICE SCALIA: That's your answer.

JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.

MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 19 1942 -- that was a handgun case where the First Circuit
examined the restriction on the carrying of the 30-caliber revolver. And the First Circuit accepted, as a matter of judicial notice, that proficiency in use and familiarity with the handgun at issue would be one that would further a militia purpose. And so -

Heller Transcript See pgs. 51-53.

Here is the exchange between Justice Breyer and Gura where Justice Scalia had to tell Gura to answer yes. In fact, Justice Scalia had to repeat himself to get Gura to answer "yes."

Chas.

Heller Oral Arguments - Transcript wrote:JUSTICE BREYER: Well, I didn't read -- I read the two military briefs as focusing on the nature of the right, which was quite a pretty good argument there that the nature of the right is to maintain a citizen Army. And to maintain that potential today, the closest we come is to say that there is a right for people to understand weapons, to know how to use them, to practice with them. And they can do that, you see, with their rifles. They can go to gun ranges, I guess, in neighboring States.

But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA: You want to say yes.

JUSTICE BREYER: Now, why?

JUSTICE SCALIA: That's your answer.

JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.

MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, . . .

I have to correct a mistake I made in my posts. Gura did not state that a psychological evaluation would be an appropriate licensing requirement. He said a "vision test" would be appropriate, among other things. I was listening to the oral argements with another attorney and he made the statement, "why doesn't he just agree to DNA testing and a psychological evaluation as well!" I forgot it was him and not Gura that said psychological evaluation.

Sorry about the mistake. The interchange about licensing requirements is below.

Chas.

Heller Oral Arguments - Transcript wrote:JUSTICE GINSBURG: If it's a fundamental right, what about licensing? One piece -- we've talked about trigger locks, we've talked about the ban on handguns, but there is also a requirement that there be a license for possession of a handgun. Assuming you're right on the first question, that you couldn't flatly ban handguns, what about a requirement that you obtain a license to carry -- to have a handgun?

MR. GURA: Justice Ginsburg, that would depend on the licensing law itself. We don't have a problem with the concept of licensing so long as it's done

JUSTICE GINSBURG: What about this very law? If you take out the ban -- there is a law on the books. It's one of the ones that you challenged. It's section 2 22-4504(a). Wouldn't that be okay -- would that be okay? It says that you have to have a license to carry.

MR. GURA: So long as the licensing law is not enforced in an arbitrary and capricious manner, so long as there are some hopefully objective standards and hopefully some process for

JUSTICE GINSBURG: It just says -- it says you have to get a license if you want to possess a gun. What kind of standard? It just says you have to have a license.

MR. GURA: Well, the government could set reasonable standards for that, Your Honor. The government could require, for example, knowledge of the State's use of force laws. They can require some sort of vision test. They could require, perhaps, demonstrated competency. And those are the types of things that we sometimes see; background checks, of course. Those are going to be reasonable licensing requirements. However, if the license requirement is we only wanted to give licenses to people who look a certain way or depends on how we feel or if the licensing office is only open Thursdays at 3:00 in the morning -- I mean, it all depends on the implementation.

CHIEF JUSTICE ROBERTS: What about -- what about age limits -- you've got to be over 18or you've got to be over 21 to get a license?

MR. GURA: Well, certainly the age-of-majority issue is -- is an appropriate one. I don't think there is a problem with requiring a majority age 18 and then 21 for . . .

KBCraig wrote:

Charles L. Cotton wrote:Now I have a question for you. For years, you have preached that the NRA compromises too much; that it sold us out on the machine gun issue. While I could not disagree with you more on these issue, tell me why you have not made so much as a peep about your libertarian brethren on the "Levy team" doing far far worse. Libertarian Gura conceded in oral argument that machine guns are not protected under the Second Amendment. Where is your condemnation of Gura?

If you will quote him exactly, I will either condemn him, praise, him, or remain neutral. I don't know what exact passage you're referring to, so I can't comment.

Now that sounds like Barack Obama claiming he didn't have an opinion on the Heller case because he hadn't seen the briefing. Surely you're not unaware that Mr. Gura agreed that the Second Amendment doesn't protect machine guns? Does it matter what words he used to say that? I listened to the oral arguments and heard him say that, but I can't recall the precise words he used. However, here is a quote from the article you seem to feel is accurate:

ReasonOnLine Article wrote:Many Internet gun-rights activists accused Gura of selling out on the machine gun issue. “We wanted to win,” Gura responds. “And you win constitutional litigation by framing issues in as narrow a manner as possible. I could not tell the justices honestly that I hadn’t thought about machine guns. ‘Gee, I don’t know, maybe…’ That’s a bunch of crap. I would have lost credibility, it would have been obviously a lie and I’m not going to lie to the Court, and I would have lost the case.”

KBCraig wrote:I do know that they took a position of only trying the one issue at hand, because it was a narrowly crafted case. Machine guns weren't at issue; overturning the DC ban was.

But Ginsburg asked him about machine guns and he conceded they weren't protected by the Second Amendment. This concession found its way into the majority opinion. An experienced appellate attorney would never have made that concession; there are ways not to answer questions that are not on point. But ego-driven inexperienced attorneys make those kinds of mistakes. He said it, you know he said it, and you're dodging the question because you will either have to condemn a fellow libertarian, or admit your bias against the NRA.

KBCraig wrote:For their educational, training, and legislative efforts to make things better, I salute the NRA (and that's why I am a member). For the roadblocks they throw up in the path of those who would be more bold, I condemn them. And for their acceptance of the idea that the 2nd means something less than what it says --for all guns, for all people-- I have nothing but contempt.

Kevin

Yet you don't condemn the "Levy team," especially Gura, for agreeing that machine guns (part of your "all guns") are not protected by the Second Amendment, that it's constitutional to require a license merely to own a gun, and that the licensing process can even include a vision test! (The vision test was something he came up with, Ginsburg didn't ask him about vision tests.) So much for being unbiased.

Chas.

Liberty wrote:I would like to make a few minor corrections. Libertarians with the capital 'L' refers to a political party. libertarian with a small 'l' refers to a philosophy. The Cato institute and Reason have little to do with the political party.

Fair enough, I stand corrected. You know far more about Libertarian Party members than do I.

Liberty wrote:Charles claims that with Sandra Day O'Connor in the picture, that the Court would have decided that the RKBA was a collective right rather than a individual right. I recall that the dissenting opinion agreed that the RKBA was an individual right. That Justice O'Connor would have shifted the decision that much, is a bit incredible.

She was a solid, absolute "collective right" vote. That isn't speculation, it isn't an educated prediction based upon prior opinions or informal discussions, it's an absolute fact. I can't say more, other than "trust me on this" and I know that's insufficient with at least one member.

Liberty wrote:O'Connor
although there is no question that Alito is more conservative than O'Connor. I believe it is presumptuous to assume that O'Connor was a definite vote against the RKBA to paint her as liberal is unfair. Most would consider as a moderate and some folks would classify her as somewhat to the right.

At the end of her tenure, she was a moderate, but that isn't controlling. Robert Bork was the most conservative jurist that was ever nominated for the Supreme Court. He was also solidly in the "collective right" camp on the Second Amendment. Perhaps his views changed over the years with all of the scholarly work, but at the time he was up for confirmation he would have been a disaster for the Second Amendment. But again, we know how O'Connor was going to vote.

Chas.

KBCraig wrote:

Charles L. Cotton wrote:

KBCraig wrote:Official NRA revisionist spin coming in 3... 2... 1...

Oh really? Why would a response be spin? How do you know, since you haven't even seen the response yet? Are you clairvoyant?

No, Charles. But I've seen every other response you've made on this issue.

My responses have been based upon my direct involvement in planning and strategy sessions and receiving periodic briefings as a member of the NRA Legal Affairs Committee and the Legislative Policy Committee, as well as being a Trustee of the NRA Civil Rights Defense Fund. I don't craft my responses based upon Internet banter, gut feelings, or preconceived bias. Rather than blindly taking the libertarian's side of the story, point me to any incorrect facts stated in my response. Your posts have made your feelings about the NRA abundantly clear; if the NRA says it it's either a lie or a spin, but if a libertarian says it, it's the gospel. How about some facts to go with your hyperbole?

KBCraig wrote:Answer me this: when will the timing ever be right for the NRA? If not forced into this fight, would the NRA have found the "right" case yet?

Right for what, a Constitutional challenge? Finding the right case is easy, very easy. All you do is find the right plaintiff, just as the NRA did in the suits it filed immediately following the Heller decision. But even more important than the right case/plaintiff is the right timing! You don't file a case knowing you're going to lose with current makeup of the Court and hope someone dies or resigns and further hope that they are replaced by someone who will support your position. That's not sound legal strategy and it's not properly representing your clients.

The filing of then-Parker was grossly irresponsible. It risked everyone's Second Amendment rights because an inexperienced "Levy team" lead by a young attorney with no appellate experience wanted to take a stand and wouldn't listen to the best legal minds in the country. Had it not been for Seegars and the NRA, Heller would have been lost.

The "Levy team" repeatedly claims that the NRA tried to stop them from filing the case. However, the "Levy team" never mentions that the attorneys who authored the scholarly work relied upon by both the D.C. Court of Appeals and the Supreme Court also tried to get them not to file at the time they did. Why is that never mentioned? Because it takes away from their NRA bashing, that's why.

Now I have a question for you. For years, you have preached that the NRA compromises too much; that it sold us out on the machine gun issue. While I could not disagree with you more on this issue, tell me why you have not made so much as a peep about your libertarian brethren on the "Levy team" doing far far worse. Libertarian Gura conceded in oral argument that machine guns are not protected under the Second Amendment. Where is your condemnation of Gura? If the NRA had said that, you'd be foaming at the mouth. Gura said it's constitutional to require a license just to own a gun. Where is your outcry against your fellow libertarian on that issue? Gura also said it would be constitutional to require a vision test of an applicant for a license to own a gun. Where is your righteous indigence over that absurd position? It is clear you have two different standards, one for the NRA and one for your follow libertarians.

Chas.

Sorry folks, but this is going to be long.

ReasonOnline Article wrote:[Victory] was pulled off by a small gang of philosophically dedicated lawyers—not “gun nuts” in any stereotypical sense,but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country. In the process, they set the stage for further legal challenges to other firearms restrictions from coast to coast.

The Levy/Gura version of the facts surrounding the Heller case are resounding hailed as true by fellow Libertarians. While many of the facts contained in this article are correct, the article in toto is grossly misleading. This is true primarily because of what is not said, though the author did take “literary license” with the subject.

ReasonOnline Article wrote:Someone was going to reach the Supreme Court with a challenge to firearms regulation. In the 2001 Fifth Circuit case U.S. v. Emerson, a federal appeals court for the first time declared unequivocally that the Second Amendment, despite containing the word “militia” in its preamble, did indeed protect an individual right to bear arms. Though groundbreaking in the judicial system, that individual rights interpretation was already dominant within the legal academy, after decades of scholarship chipped away at the once-preeminent “collective rights” view that the amendment only protected either a state’s right to maintain a militia, or an individual’s rights within the context of militia service.

It’s noteworthy that the scholarly work referenced by Mr. Doherty was the work done by or at the behest of the NRA. It was also funded by the NRA and the NRA Civil Rights Defense Fund. For thirty years, the NRA was laying the ground work for the right Second Amendment case to be brought to the right Supreme Court.

ReasonOnline Article wrote:The Emerson decision rippled beyond the courts. On November 9, 2001, then–Attorney General John Ashcroft sent a memo to all U.S. attorneys praising the case for how it “undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment ‘protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.’ ”

Remember this and the fact that AG John Ashcroft is head of the Dept. of Justice; it will be most relevant later in this post.

ReasonOnline Article wrote:Gun rights were on the rise politically as well. Democrats lost Congress in 1994, and the White House in 2000, in part because of a backlash against the 1994 assault weapon ban. In the 21st century, the party no longer makes gun control a major issue. On the state level, laws making it easier for citizens to carry weapons have also been proliferating over the past two decades; the number of states with concealed-weapon “shall issue” standards (objective criteria with little or no bureaucratic discretion) now stands at a de facto 37, up from just eight in 1986.

These statements are correct, but conspicuously missing is any mention that the NRA and it’s state associations were responsible for this unprecedented change. While one could argue that the NRA’s leadership in this area isn’t the subject or theme of the article (that’s stating it mildly), intellectual honesty would seem to demand that credit be given where it is due. Unfortunately, that would have taken away from the overall theme of glorifying the “Libertarian lawyers” and the Cato Institute.

ReasonOnline Article wrote:That was the legal, political, and social environment in which Heller was launched in 2003. “The timing was ripe,” says attorney Robert Levy, then a senior fellow at the libertarian Cato Institute (and now its chairman) and the man who financed and spearheaded the case.

Nothing could be further from the truth!!! It was a hands-down loser and everyone knew it. It wasn’t a lack of courage or commitment, it was a fact that anyone close to the issue and the U.S. Supreme Court knew we would lose on a 5-4 vote.

ReasonOnline Article wrote:Yet Heller was almost derailed on a series of occasions, sometimes by the very people who cherish gun rights and constitutional protections the most, including the National Rifle Association (NRA). Many lacked confidence that the Court was ready to catch up with the legal academy. In the hour of opportunity, many blinked. Victory over these self-doubts provide a powerful reminder that, as Barry Goldwater reminded us, sometimes an overly fearful moderation in the pursuit of justice is no virtue, and that even decades of bad policy and bad political philosophy can turn around with smart, tenacious efforts.

Sandra Day O’Connor was not on the Court when Heller was decided, so it is disingenuous at best to claim this was a “victory over these self-doubts.” If Heller had progressed faster and reached the Court when O’Connor was still sitting, the Second Amendment would have been found to be a “collective right” and Levy, Gura and Doherty would have been saying, “well at least we had to courage to try.”

ReasonOnline Article wrote:]The inevitable post-Emerson challenge to gun restrictions could well have come from a radically different point of view. Various Washington, D.C., public defenders, for example, were trying to apply Emerson to reduce the prison sentences of their clients—street criminals who typically had a whole host of charges hanging over their heads, not otherwise law-abiding citizens seeking to arm themselves in their home.

So, prodded on by suggestions from a young lawyer named Clark Neily from the libertarian public interest law firm the Institute for Justice, Robert Levy assembled a team that included his Cato colleague Gene Healy (who dropped out before the case reached the Supreme Court), Neily himself, and the private-practice attorney who eventually argued the case in front of the Court, a Virginia libertarian named Alan Gura. Levy’s team then went searching for the ideal clients.

Contrary to the implication that some criminal defendant was going to get a case in the Supreme Court, no case was remotely close to reaching the Supreme Court on a Second Amendment ground. This was nothing but an excuse to justify the horrible, suicidal timing of the filing of t he then-Parker case.

ReasonOnline Article wrote:After much searching by Levy’s team, six plaintiffs were selected. They filed the case on February 10, 2003. Back then, it wasn’t the Heller case, but the Parker case, named after original lead plaintiff Shelly Parker.

. . .

But, like four of the other original six plaintiffs, Parker was found by the Circuit Court of Appeals for the D.C.Circuit to lack legal “standing”—that is, actually suffering a direct injury under the law legitimate enough for her to legally challenge it. By March 2007, Dick Heller was the only plaintiff left. As many involved with the case would admit without wanting to stress it too much, Heller was probably the plaintiff they wanted least as a Second Amendment poster boy.

Heller isn’t a sweet lady trying to turn around a dodgy neighborhood; he’s an outspoken ideological activist seeking to push the federal government back within its constitutional bounds, and therefore (his lawyers fretted) potentially off-putting to judges, media, and citizens alike. One of his best friends, a thick, intense, walrus-mustachioed man named Dane vonBreichenruchardt, runs a small-scale political action group called the Bill of Rights Foundation, appears with Heller at most press conferences and events.

The fact that Ms. Parker was dismissed as a plaintiff due to a “lack of standing” will be interesting in another part of Mr. Doherty’s article and this response. It’s also noteworthy that the “Levy team” didn’t really want Mr. Heller to be the lead plaintiff. Remember this when we get to the Seegars case.

ReasonOnline Article wrote:The NRA v. Heller

The Heller case quickly found a powerful opponent in the National Rifle Association. This surprises nearly every layman I discuss the case with, most of whom assume the NRA was behind the lawsuit in the first place.

If any were surprised, it was because they didn’t know what the NRA and the “Levy team” knew about how the final vote was going to come in, so long as Sandra Day O’Connor was on the Court. I am quite certain no one on the "Levy team" bothered to tell those surprised "laymen" what was known.

ReasonOnline Article wrote:The Parker lawyers received backroom visits from allies of the NRA before their case was filed, discouraging them from going forward. The Supreme Court (which still had Sandra Day O’Conner back then) would not reliably deliver a victory, they argued, and an authoritative statement from the Supremes that the Second Amendment did not protect an individual right could prove devastating to the long-term cause.

This was an intellectually respectable objection, the Levy team thought, but ultimately too fearful.

Unless I am mistaken, this is the first time anyone on the “Levy team’s” side of this issue has admitted the threat existed. I’ve never heard either Levy or Gura admit this publicly, but I guess they did so in private. It’s also possible that they may have publicly admitted the O’Conner factor publicly, now that Heller was won.

ReasonOnline Article wrote:If no one would fight for the Second Amendment qua Second Amendment in a relevant case, then its supposed paladins were as complicit in its irrelevance as were the most rabid partisans for the idea that the Second Amendment only applied to militias and is thus a dead letter.

What amazing arrogance! Inexperienced neophytes not only in federal court appellate work, but especially in Second Amendment cases, risk a disastrous decision that would affect every gun owner in the Country, and Doherty calls the experts “complicit?”

ReasonOnline Article wrote:“The second problem the NRA had with our case was territorial,” Gura says. “They didn’t want something like this going on that they didn’t have their hands in.”

Not only was the timing of then-Parker a disaster in the making, so was Alan Gura. Libertarian attorney Alan Gura, hailed by Mr. Doherty had never once handled an appellate case in either federal court or even state court; not one, not a single appellate case ever!! This is the man to whom the “Levy team” entrusted the Second Amendment and the rights of gun owners? His lack of experience was obvious in horrendous concessions he made during oral arguments.

ReasonOnline Article wrote:In fact, in April 2003, less than two months from Parker’s filing in U.S. District Court for the District of Columbia, a new lawsuit challenging D.C.’s gun laws, Seegars v. Ashcroft, was filed with the backing of the NRA and its longtime Second Amendment legal eagle Stephen Halbrook in charge.

First off, Stephen Halbrook is one of the top three Second Amendment/Constitutioinal attorney/scholars in the country. He has published more on this issue than all of the books Gura has ever read put together. To denigrate Mr. Halbrook while praising Gura is glaring evidence of Mr. Hoherty’s bias towards his fellow Libertarians.

Seegars was filed in an effort to avoid disaster. Doherty speaks of the NRA “derailing” the Heller case, which isn’t true, the “Levy team” did torpedo the Seegars case and almost doomed Heller in the process. (See below.)

ReasonOnline Article wrote:As per then-standard NRA practice, Halbrook offered the court a menu of options to choose from to overthrow D.C. gun laws, hoping one of them might work even if a direct Second Amendment challenge did not. Among them were claims that Congress had only empowered D.C. to create for itself regulations that were “usual and reasonable,” and that D.C.’s gun laws, being the most severe ones in the nation, were therefore unusual and unreasonable.

Perhaps if Mr. Gura had at least some appellate experience he would have realized that a knowledgeable attorney always puts every argument he has into his cases. Why? Because if you don’t it’s waived and you don’t get a “do-over.”

ReasonOnline Article wrote:Unlike the Levy team, Halbrook and the NRA chose to sue not only Washington, D.C., but the U.S. Department of Justice. The DOJ is a significantly more formidable opponent than the District of Columbia.

And who was in charge at the DOJ? U.S. Attorney General John Ashcroft who had praised the Fifth Circuit Court of Appeals’ Emerson decision that found the Second Amendment to be an individual right. The very same John Ashcroft that Mr. Doherty correctly stated sent a letter to U.S. Attorneys praising Emerson. I wonder, could that have been a factor in the decision-making?

ReasonOnline Article wrote:To add insult to injury, because of their unease with Levy and his comparatively inexperienced crew, the NRA team used Seegars as an excuse to try to scuttle Parker altogether by taking over the case, through the legal gambit of “consolidation.”

It wasn’t a “comparatively inexperienced crew,” they were utterly inexperienced and blustered on even knowing the vote was going to go against them.

ReasonOnline Article wrote:Then in January 2004, at the D.C. District Court, all but one Seegars plaintiff—a woman with a registered shotgun contesting the trigger-lock aspect of D.C.’s laws—were denied standing. The last remaining plaintiff lost the case on a basic “doesn’t belong to a militia” argument. The Seegars team appealed, bringing their case into the appeals process before Parker had even been considered at the District Court.

Mr. Doherty neglected to mention that the “Levy team” filed a brief against the Seegars plaintiff arguing, inter alia that they didn’t have standing. Ego is the only explanation for trying to take the premier Second Amendment advocate out of the fight.

ReasonOnline Article wrote:Because the D.C. Circuit Court of Appeals decided that the issues in both cases were essentially the same, they halted the appeals progress of Parker, at D.C.’s request, pending resolution of Seegars. Then in a February 2005 decision, Seegars was wrecked on the rock of standing, for D.C. Circuit-specific peculiarities explained further below.

The “Levy team” filed then-Parker in February, 2003 and the NRA filed the Seegars case about two months later. As noted by Mr. Dorherty, Parker was abated pending a decision in the Seegars. The D.C. Court of Appeals dismissed Seegars in February, 2005, which brought the Parker/Heller case out of abatement and allowed it to proceed. The D.C. Circuit Court of Appeals finally issued a favorable opinion in Parker in April, 2007 and a rehearing en banc was denied in May, 2007. The case was then appealed to the U.S. Supreme Court.

So what was going on during the battle over Seegars of which Mr. Dorherty speaks? Something outcome-determinative, that’s what. In October, 2005, Sandra Day O’Connor left the bench and was replaced by Samuel Alito who voted with the majority in Heller. Had it not been for the NRA, this case likely would have made it to the Supreme Court while O’Connor was still sitting and gun owners and the Second Amendment would have lost. It’s a shame that most people will never realize that the NRA’s Seegars case saved the Second Amendment and made the Heller decision possible.

ReasonOnline Article wrote:The NRA also harmed Parker through its decision to bring DOJ into the case. The D.C. Circuit Court of Appeals, in coming down with its Parker decision on March 9, 2007, booted five of the original plaintiffs off the Parker] case, for the same reason of standing that the five Seegars plaintiffs were all tossed away. The standing argument had been introduced to the case by the Justice Department; D.C. hadn’t thought of it on its own.

And who filed a brief against the Seegars plaintiff’s arguing they had no standing? You guessed it, Mr. Alan “I’ve-never-handled-an-appellate-case-before” Gura. His ego-driven, spiteful action came back to hurt five of his own clients. Inexperience will do this to you.

ReasonOnline Article wrote:The D.C. Circuit has a peculiar position on standing, more stringent than in any other circuit.

Wait a minute. Didn’t Mr. Doherty say at the opening of his article that the D.C. Court of Appeals was the best place to bring a Second Amendment case?

ReasonOnline Article wrote:How is it that Heller alone survived the standing challenge? Even before the Parker case was officially filed, his friend Dane vonBreichenruchardt knew Heller was involved and intending to be a plaintiff—it was vonBreichenruchardt, who already knew Levy, who had introduced Heller to Levy.

. . .

So vonBreichenruchardt encouraged Heller to fill out a form to register one of the handguns Heller owned (apparently stored outside the district), even though he knew there was no way the city would actually accept the illegal pistol.

“It makes all the difference in the world that this one guy went down and filled out an absolutely meaningless piece of paper which you knew in advance was a futile act,” Neily says. “It was not intentional on the part of Alan, Bob, and myself, but it was intentional on the part of Dick and Dane, and it was very important that Dane had that insight and did that.” Heller slid in because he had a permit denied: a clear injury with a paper trail.

So it was purely by accident that the “Levy team’s” brief on standing filed against the Seegars Plaintiffs didn’t derail Heller. Inexperience will do that to you.

ReasonOnline Article wrote:[At the D,C, Court of Appeals] The decision was a glorious victory for the Levy team and for the Second Amendment. Judge Laurence H. Silberman, in his majority opinion, hit all the right points. He decided that the “people” referred to in the Amendment meant the people, that is, all of us as individuals. He decided that “bear arms” had more than just a military meaning in the idiom of the Founding era.

Silberman’s decision interpreted the 1939 Supreme Court case U.S. v. Miller, the dominant precedent regarding the Second Amendment, to say that cases hinged on the type of weapon the right affected, and whether the weapon had potential militia use, not on whether persons claiming the right were themselves in a militia. The judge did not accept D.C.’s claim that any constitutional infringement was mitigated because the city might not punish a long-gun owner for loading and using his weapon in self-defense in defiance of the letter of the law. “Judicial leniency,” he wrote, “cannot make up for the unreasonable restriction of a right.”

And who is responsible for that scholarly work? The NRA. Whose briefing was quoted by Judge Silverman? The NRA’s.

ReasonOnline Article wrote:Heller at the Supreme Court
After some hesitation—causing it to miss the initial filing deadline—the District of Columbia appealed to the Supreme Court. The NRA was simultaneously pushing a new federal law that would have mooted the newly renamed Heller case by overturning the city’s anti-gun laws. Levy lobbied against the measure, arguing that a Supreme Court victory would be more permanent and more important to the whole country than just overturning D.C.’s restrictions. That bill did not pass in 2007, and the Heller case was taken up by the Supreme Court in November of that year. Only at that point, after years of obstruction, did the NRA became highly cooperative, putting together a significant amicus brief endorsed by the majority of both houses of Congress and by Vice President Dick Cheney.

The NRA filed legislation to overturn D.C. gun laws, but it didn’t “push” the bill. It takes years to get a high profile, controversial bill like that passed and you file it every session, if you really want it to pass. The NRA filed the bill but chose not to push it, because Sandra Day O’Connor was now off of the Supreme Court. It was filed for two reasons, first as a back-up in case Heller lost and because the residents of D.C. still need relief even after the Heller victory. As for Levy “lobbying against [an NRA] bill,” oh please!

ReasonOnline Article wrote:At the oral arguments before the Supreme Court, . . .When it was Gura’s turn, he was asked to explain the meaning of the militia reference. He said it was to describe a purpose of the right of the people that the Amendment protected. He angered some in the hardcore gun rights movement when he concluded that the weapons protected by the Amendment should be ones that combined a militia purpose and a normal civilian purpose, since people were expected to supply them from their own everyday collection of weapons they typically used. Gura did not want to be pressed into arguing that machine guns should have unlimited Second Amendment protection.
He did ably defend the idea that personal self-defense was built into weapons rights during the Founding era. He granted that reasonable licensing doesn’t necessarily violate the Second Amendment.

Gura’s performance was dismal – absolutely atrocious. He made concessions that never would have been made by an attorney with even a modicum of appellate experience. His blunders were numerous, but here is a great example. When Justice Ginsburg inquired about what type of licensing restrictions/requirements he believed would be constitutional, he responded by saying that it would be fine to require a vision test among other things of a person applying for a permit to own a gun in their home! What on earth was he thinking? I wanted to shoot my monitor as I listened to that unbelievable statement.

At one point when it was clear he was about to make another absurd concession to Justice Ginsburg by answering a question with “no,” Justice Scalia (I think it was Scalia) leaned forward to his microphone and said, “Counsel, the answer to that question is “yes.” The entire courtroom erupted in laughter. I didn’t laugh; I hung my head in disgust. Inexperience will do that to you.

ReasonOnline Article wrote:Many Internet gun-rights activists accused Gura of selling out on the machine gun issue. “We wanted to win,” Gura responds. “And you win constitutional litigation by framing issues in as narrow a manner as possible. I could not tell the justices honestly that I hadn’t thought about machine guns. ‘Gee, I don’t know, maybe…’ That’s a bunch of crap. I would have lost credibility, it would have been obviously a lie and I’m not going to lie to the Court, and I would have lost the case.”

There were ways not to answer the machine gun question and an experienced appellate attorney would have known that. Plus, if you really want to win, then you file at the right time and you get the best attorneys on the issue to handle the case. You don’t put your ego ahead of the Second Amendment and gun owners.

ReasonOnline Article wrote:Heller Wins
. . .

The Heller case was a prime example of how calm, dedicated, and strategic thinking on the part of crusaders for smaller government can achieve real and (probably) lasting victories. Fighting against even those who should have been their staunchest allies, Levy and his team of libertarian lawyers watched the zeitgeist, crafted a smart (though risky) strategy, and won.

Our legal system and our Constitution allowed them to do something about D.C.’s gun laws, even as D.C.’s gun laws did not allow its citizens to do much about their own safety. Because this group of people acted to preserve the right to self-defense, the rest of America has seen affirmed at least the basics of that right. The contours of that right to self defense remain to be defined by others who choose to follow in Levy and his crew’s footsteps.

What pompous, self-engrandizing garbage. Heller was won by and because of the NRA. The NRA fostered over thirty years of scholarly work that was the basis of the opinion. The NRA’s Seegars case bought time to get a favorable majority on the Supreme Court thereby avoiding the disaster the “Levy team” unwittingly pursued with such vigor. The NRA’s briefing, both direct and otherwise, carried the day, as evidenced by the numerous times it was cited in Justice Scalia’s opinion for the majority.

Why was this article written?

I suspect it is merely part of the ongoing NRA bashing by Libertarians. What part did the players' party affiliation or political persuasion have to do with the facts and legal history of this case? Nothing whatsoever, but Mr. Doherty repeatedly sprinkled "libertarian" throughout the article.

Even Mr. Doherty admits that there is much more work to be done. With Obama in the White House and Democrats controlling the House and Senate (and may have a 60 vote filibuster-proof margin at that), gun owners are facing the greatest threat to the Second Amendment we’ve ever seen. This is not a time to be dividing gun owners, it’s not a time for sour grapes, and it’s certainly not a time to claim credit where it isn’t due.

You don’t see the NRA spreading this stuff. In fact, I and a few others were sworn to secrecy (literally) until the Heller case was over. Well, it’s over and I’m not going to let this garbage go unanswered, although there is much more to the story than I can tell even at this point. There are many more battles ahead and for the sake of the Second Amendment and gun owners, I respectfully suggest that the “Levy team” stop their publicity campaign. No one but their fellow Libertarians are buying it anyway.

Chas.

stroo wrote:Charles,

I didn't mean to attack you or the NRA by posting this. I just thought it was an interesting recounting of events from the perspective of the lawyers who originally brought the case. What I found particularly interesting was that even with all the planning, the standing argument was defeated by Heller on his own taking the step of applying for a handgun license.

Again, I meant no offence.

Thanks, but I took no offense at your posting. I take great offense at the suggestion that any counter argument is "NRA spin" and that wasn't you.

Chas.

KBCraig wrote:Official NRA revisionist spin coming in 3... 2... 1...

Oh really? Why would a response be spin? How do you know, since you haven't even seen the response yet? Are you clairvoyant? Could it be that you know that this article is garbage so the truth is bound to come out? Or are you not willing to listen to contrary facts? If so, then why? Could it be because you take anything a fellow Libertarian says as gospel and anything that casts doubt on the Libertarians' self-serving, face-saving version of recent history as heresy? I can't count the number of Heller meetings I was in as both as an NRA Board Member and as a Trustee of the NRA Civil Rights Defense Fund; how many did you attend? If you weren't there, how do you know what and why the NRA did certain things? Who wrote the briefing quoted by Judge Siverman in the D.C. Court of Appeals and by Justice Scalia in the Supreme Court? Who ghost-wrote dozens of other briefs filed in Heller.

I don't spin things Kevin, I relate as much of the truth as I can, without damaging our continued ability to protect the Second Amendment and gun owners. Keep your insults to yourself and don't bother saying you didn't mean me. You're statement is crystal clear; anyone who disagrees with the "gospel of Libertarian Brian Doherty" is nothing more than an "NRA revisionist" spinning a story. I'm preparing a response now.

Chas.