I was just reading your very excellent SurvivalBlog [post on the Heller decision] this morning. A great site you have.
Regarding Mr. Gura, don’t be too hard on him because he appeared to throw machine guns under the bus at oral argument. I believe that Gura made a tactical decision not to discuss machine guns because he knew that, for now, the machine gun issue was a loser of an argument, and would distract from a more important first step: getting the Second Amendment declared as an individual right. Now that the court has declared (as those of us who can read plain English have known all along) that the right to keep and bear arms is an individual right, we can work toward machine guns and carrying weapons for self-defense outside the home.
Besides, if you look at what Gura actually argued (quoted in your post), Gura does not say that constitutional protections don’t apply to machine guns, he merely repeats what US v. Miller has already stated, that if weapons are show to be not normally in use by the Militia, then we might not have a right to these. But machine guns are in use by militia members. Just go to Knob Creek every Fall and check out the action at the Machine Gun Shoot. Moreover, as you noted, government can’t illegally ban a class of weapons, wait 70 years, and then make the absurd claim that such weapons are not permitted under the Second Amendment because they aren’t in common use at the time the case is finally litigated 70 years later.
Remember that the reason why we got a ruling like the one we got in Miller is because the defendant did not show up and present evidence that sawed-off shotguns were in common use at the time. This leaves ample room for future litigants to demonstrate common use of machine guns, SBRs, SBSs, and suppressed weapons. I don’t think we’ve lost anything here.
I believe that restoring the Second Amendment to its rightful place alongside our other Constitutional rights will be the “new” civil rights movement for the next generation. Gradually we will chip away at laws intended to burden the lawful use of firearms, just as activists in the 1950s and 1960s chipped away at laws intended to oppress minorities and women. The Second Amendment recognizes an important right for citizens who intend on self-governance. I look forward to seeing it restored to esteem equal to that with which our society regards the First and Fourth Amendments. Best to you, – A.L., Esq.