DC gun ban case: plaintiff’s attorney on the Supreme Court oral arguments Commentary
DC gun ban case: plaintiff’s attorney on the Supreme Court oral arguments
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Alan Gura [attorney, Gura & Possessky, PLLC, lead counsel for plaintiffs in Parker v. District of Columbia, on appeal as District of Columbia v. Heller]: "As advocates, our role is to respond to the actual questions posed by the Justices, in a direct and honest manner, which would hopefully make the Court more comfortable with our respective positions. That's it.

Members of the Court questioned Petitioners' version of history, and the Solicitor General's unsatisfying standard of review approach. Predictably, in querying me, the Justices wanted to know if I endorse a practical, common-sense Second Amendment. The Court's view of what is practical probably differs from that of extremists on either side of the gun debate. Petitioners, and to some extent, the Solicitor General, sanctioned the prohibitionist extreme: that a total ban on all handguns and all functional firearms in the home is (petitioners) or may be (Solicitor General Clement) constitutional. I was not about to mirror that by advocating for the pro-gun extreme: an absolute right not subject to regulation, and which encompasses machine guns.

My decision to avoid extended discussion of social science data was conscious, and reflected the consensus of our team and everyone with whom we raised the issue. The social science overwhelmingly cuts in our favor, but it is the sort of argument best left for amici. Criminological data might make the Court more comfortable in reaching its decision, but ultimately the questions in Heller are legal, not scientific. A Justice is more likely to accept a legal position despite misgivings about its implications, than a social science position he or she finds debatable, at best. I was prepared to answer specific questions about various studies, but none came up. I was unwilling to actually raise the social science issue and turn the case into something it isn't.

Extended scientific discussion would have also invited more discussion of standards of review. But a core strategic decision made at the outset of the litigation, which may yet be vindicated, was to keep the case as narrow as possible by observing that these laws fail any conceivable standard of review. The Court does not decide cases not before it. To decide this case, it is enough to declare an operative individual right. Some Justices appeared open to that viewpoint, underscoring again our disappointment with the Solicitor General's position.

The one Second Amendment test we do have — for delineating protected from unprotected arms — is found in Miller. Nobody seems to like Miller much, but we do win our case if it is faithfully applied, as it was by the D.C. Circuit. So it would have made no sense for me to seek Miller's destruction and thereby start from an argument against precedent. Justice Kennedy could, and did, signal Miller's deficiency, and that allowed me to discuss the issue. But it wasn't my task to undo Miller, however desirable that may be. Along the same lines, several Justices appeared to have almost no use for the Second Amendment's preamble, but as an advocate, I could not over-argue the matter.

Finally, among the most heartening moments, for me, were Dellinger's pejorative uses of the word "libertarian" to describe our position. Everyone arguing for an individual right — any individual right — may be said to be taking a libertarian position. That perspective comes from trusting people. We trust the people of Washington, D.C., like those in half of all American households, would responsibly use firearms in lawful fashion. We believe that trust is reflected in the Second Amendment. We hope the Court will agree."

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