Shotgun News, May 1, 2008, pp. 24, 26

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The Heller Oral Arguments

I suspect that almost every gun rights activist saw some coverage of the oral arguments before the Supreme Court in D.C. v. Heller (2008).  It was a major event, and the news media covered it as the momentous, historic moment that it was.  I was gratified to be asked to be in Washington in the days leading up to the oral arguments, in case there were any last minute questions or research required in support of our side.  I shared a cozy little two-bedroom suite in Alexandria for several days with Professor Joe Olson of Hamline University law school and David Hardy, an Arizona attorney.  Olson and Hardy, being lawyers, were whose names appeared on the Academics for the Second Amendment amicus brief that we wrote.

As it happened, there were no last minute questions.  It did provide me an opportunity to have dinner and lunch with Alan Gura, who represented our side.  I also had several meals with Dave Kopel of the Independence Institute, Professor Bob Cottrol of George Washington University law school, as well as a number of other gun rights activists who were all in town for this excitement.

If you don’t know what oral arguments are—that’s what happens when the Court asks the attorneys for both sides to show up and make an oral presentation.  In practice, the attorneys may only say a small portion of what they intend, because the justices interrupt—frequently—to poke and prod them on particular issues.  You have to know what you are going to say, and be prepared to answer questions quickly and concisely.

In the week or so before the oral arguments, Gura was subjected to a series of what are called “moot courts,” where attorneys and law professors on our side pretend to be the justices, and pepper the attorney with the kind of demanding, rapid-fire questioning that frazzles the nerves.  I arrived just in time to catch the last of these events—and it made me appreciate how nervous Gura must have been going in for the real oral arguments.

To give you some idea how historic this case was, law students from the surrounding area were heavily represented in the crowd that lined up forty hours in advance to get into the oral arguments.  I had originally hoped that no one else would be this interested, but when I saw how early the line was, and how miserable the conditions would be, sleeping out there in near freezing weather, with the nearest public restroom almost half a mile away—I just gave up on the idea.  Some things you just have to be young and tough to do!

Here are some pictures that I took the night before of the line.  You might have thought that it was for the next video gaming console or Harry Potter book!

I did have a chance to talk to some of the crowd—a few of whom recognized me, although most of them did not.  (This helped deflate my swollen head enough to get through doorways.)  I did get into a rather intense discussion with a lawyer from Legal Community Against Violence about the merits of the case.  I did not know it, but someone recorded part of it, and put it up on YouTube.[1]  If you’ve ever wanted to see me demolish someone else’s weak arguments in person, I’m told that I come across pretty well.

While the space reserved in the courtroom for us mere citizens was very small (fifty seats), lawyers who have been admitted to the Supreme Court Bar have a separate area, and a separate line.  At least two lawyers that I spoke to were in that line, and either saw or heard the oral arguments.  Based on the comments of everyone who was actually in the courtroom, as well as reading the transcript of the oral arguments,[2] we have at least five justices firmly on our side—and Justice Kennedy, to our delight, seems to have gone out of his way to emphasize that the right protected by the Second Amendment includes a right of self-defense.  In light of some of his decisions when he sat on the 9th Circuit Court of Appeals, this is really not that surprising—but many of us were worried that too many years in D.C. might have changed him.

Justice Ginsburg’s questions were also somewhat surprising—suggesting that she may be more sympathetic than her history with the ACLU led us to believe.  I am quite sure that neither Justice Breyer nor Justice Stevens will be on our side.  Justice Souter might surprise us, but I am not counting on his vote.

I was very pleased to see one of the significant pieces of original research that Professor Olson and I worked on coming out of Justice Scalia’s mouth.[3]  You see, the other side has been claiming for some years that the term “bear arms” always, or almost always, refers to the carrying of arms in a military or militia context—that it does not refer to an individual right.  A paper that will be coming out shortly in Georgetown Journal of Law and Public Policy by Professor Olson and I demonstrates that “bear arms” was commonly used to refer to individuals carrying weapons for civilian purposes: in 16th through 18th century English laws, in speeches given by U.S. Supreme Court Associate Justice James Wilson, in books by John Adams, and in a variety of literary sources form the period.[4]  I was also pleased to see some of the research that I did on the significance of Boston’s 1786 ordinance regulating the keeping of loaded firearms in buildings used by Mr. Gura in response to Justice Breyer’s attempt to defend the D.C. ban on having loaded firearms in the home.[5]

Now, you are probably going to hear some serious whining from certain people that think that Mr. Gura threw machine gun owners under the bus, or that he wasn’t aggressive enough in response to the questions that he was asked.  With respect to aggression—oral arguments are not like cross-examining a hostile witness.  You want the justices to like you.  Aggression isn’t the right strategy.

With respect to “throwing machine gun owners under the bus,” I can only say:

1.              Yes, you or I might well have done a better job in responding to particular questions that the justices asked Gura.  But think of the pressure that Gura was under (his first time before the Supreme Court)—and then ask yourself if you would really have done better—or perhaps just might flubbed something else.

2.               Machine guns are a hard situation to bring before the Court when arguing the Second Amendment.  The other side has this long list of weapons that they use to scare the wits out of even those sympathetic to our point of view.  They claim that if the Second Amendment protects a right to keep and bear arms, then how can any law survive that regulates machine guns, hand grenades, flamethrowers, helicopter gunships—and oh yes, nuclear weapons.  Gura did not let the list of horribles dominate the discussion.  It is definitely the case that the Second Amendment protects a right of law-abiding adults to possess machine guns (although perhaps under somewhat stricter requirements than a hunting rifle).  But this is the kind of argument that can be logically and historically correct, and lose the argument before the Supreme Court.  We lost our Second Amendment rights one slice at a time; I expect that we will get them back one slice at a time.  There will be subsequent cases to this one; some of the dinner discussions I had involved figuring out what our long-term strategy will be.  And no, I’m not going to discuss that strategy in a place where the gun control crowd can read it.

3.              It appears that we have the majority we need—and a perfect performance by Mr. Gura (you know, the perfect performance that the rest of us just know that we could have put on under that kind of pressure) would not have changed the results.  It does not sound to me like those who are going to vote against us would have felt differently, even if we had used a time machine to bring James Madison into the courtroom to explain our position.

Those who are still whining about Mr. Gura’s performance need to give it a rest.

By the time you read this article in print, we may have a written decision from the Court.  They can issue one as late as June—and I would not read much into a delay.  It may be that the majority is trying to get one or two of the justices on the other side to reconsider, or at least write concurring opinions that agree with the result (the D.C. handgun ban is unconstitutional) even if they don’t agree with the standard of review that the majority uses.

Oh yes, you may have heard a bit of discussion of “standard of review.”  What is that?  Most Americans have a very simple understanding of what a constitutional right: if the right to do X is protected, then the government can’t do anything that prevents you from doing X.  Ah, but that’s why you aren’t lawyers; you lack the subtlety to make red equal green, stop equal go, and 1 equal 2.

In the next issue, I will explain what “standard of review” means with respect to the Bill of Rights—and what it will mean with respect to the Second Amendment.  Because that’s an article all by itself!

For those who are interested: I am running for a seat in the Idaho legislature.  If you want to know more (especially if you live in Idaho district 22), visit .

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores.  His web site is

[1], last accessed March 25, 2008.  It is a minute or two into the video.

[2] Transcripts, 07-290,, last accessed March 25, 2008.

[3] Transcripts, 07-290, 36.

[4] Forthcoming, Clayton E. Cramer and Joseph Edward Olson, “What Did ‘Bear Arms’ Mean in the Second Amendment?” Georgetown Journal of Law & Public Policy, 6:2[2008] Available at SSRN:, last accessed March 25, 2008.

[5] Transcripts, 07-290, 64-65.