Sunday, June 29, 2008

Identifying Obama's Real Position On The Second Amendment (Updated)

If you think the issue of the Second Amendment and gun rights went away with the Supreme Court decision in Heller, you are sorely mistaken. The issue has just bloomed into what will shortly become a full-scale battle to determine the contours of the Second Amendment right. Outside of the justices sitting on the Supreme Court, the individual who will most effect how that right will be interpreted will be our next President. With that in mind, how would a President Obama effect the Second Amendment?

The Supreme Court decided in Heller that the right to keep and bear arms is an individual right. While a momentous decision, it was also a very limited one. All Heller decided was that anyone living on federally administered land has an absolute right to keep a pistol, rifle or shotgun in their home and that they have an absolute right to keep the firearm loaded and ready to fire. We also know that some level of restriction on both gun ownership - i.e., who may own them - and the type of firearm that may be owned – e.g., limits on machine gun and short barrel shotguns – are permissible limitations on the right. Everything else about the Second Amendment awaits future litigation.

The phrase "everything else" includes, for example, the seminal issue of whether states can enact a complete ban on gun ownership, either directly or indirectly. As explained here, Heller did not decide that issue. If the Second Amendment does not apply to the states, then states are free to enact any restrictions they want on gun ownership. Further, gun-control advocates, localities, states and even the federal government can enact an endless variety of gun control restrictions in the wake of Heller in an attempt to severely limit the Second Amendment right to the point that it becomes a nullity. [Update: D.C. is already attempting to limit Heller by maintaining a ban on all semi-automatic pistols, the most popular type of handgun in the U.S.] The next President’s Justice Department will also have a key role to play in the Supreme Court's hearing of Second Amendment litigation, either in support or in opposition to gun rights.

In light of this, where Obama stands both on the judiciary and the Second Amendment are of critical importance, The most important is of course the type of judges Obama would appoint to the Supreme Court. We saw in Heller four activist liberal justices tie themselves in knots trying to make the argument that the right to keep and bear arms - an individual right at inception - into a collective right two hundred plus years later, based on a balancing test of today's equities while the two most junior Supreme Court Justices, Roberts and Alito, both joined the majority decision.

Obama joined a handful of the most liberal Senators to oppose the appointments of both Judges Alito and Roberts on ideological grounds. A President Obama would appoint judges who resemble the dissenters in Heller. And after the Boumediene decision, anyone who believes the activist wing of the Supreme Court see themselves as restrained by either original intent or precedent is partaking of fantasy. There can be no question that an activist majority on the Supreme Court would limit, if not outright emasculate the Second Amendment right. It is likely a President Obama would have at least one and as many as three Supreme Court appointments (and a bevy of appeals courts appointments). One of those could well tip the balance of the Court, giving the activist wing of the Court an outright majority.

Beyond judges, there is the still important question of how a President Obama would approach Second Amendment rights. Both through the legislation he would approve and the positions he would have the Justice Dept. take in litigation, he would play a direct role in shaping the contours of the Second Amendment. If you listen to Obama in the wake of Heller, the answer is that his views are the same as McCain's and, indeed, the same as what was expressed by Justice Scalia in the Supreme Court opinion, District of Columbia v. Heller. That bald assertion stands in near total opposition to Obama's record and prior pronouncements.

Obama’s animus towards an individual right to own guns and to use them in self defense is well documented. As a threshold matter, DC’s draconian gun laws, just overturned in Heller as violating an individual right to keep and bear arms under the Second Amendment, are a mirror image of the law in Chicago. Both have an indirect ban on handguns and require guns legally kept in the home to be rendered non-functional. Yet after Obama became a state Senator representing a Chicago district, he never proposed anything that would liberalize Chicago’s laws nor the gun laws in the state of Illinois. To the contrary, Obama’s proposals would have added onerous restrictions and his votes were strongly against any provision that would have allowed law abiding individuals to protect themselves with guns.

In 1994, while Obama was still in a private legal practice, he accepted appointment as a director on the board of the Joyce Foundation, a position he held from 1994 through 2002. According to No Quarter, "the NRA calls the Joyce Foundation an activist foundation whose ‘shadowy web of huge donations’ leads ‘straight to puppet strings that control the agenda of gun ban groups.’"

According to the the NRO, during Obama’s tenure on the Joyce Foundation, they funded the Violence Policy Center for a sum total of $15 million. The Violence Policy Center "touts themselves as "the most aggressive group in the gun control movement" and actively campaigned for a national ban on handguns. The Joyce Foundation also funded the pro-gun control Johns Hopkins Center for Gun Policy and Research with over a $1.2 million. That organization argued that "guns in the home were more dangerous than protective" and primarily acted in "litigation designed to change the way guns are designed, marketed, distributed, and sold."

Then in 1996, when Obama was first running for office as an Illinois State Senator for Chicago’s Tenth District, an influential local political organization asked Obama to complete a survey on his positions as an integral part of their process to determine which candidate to endorse. The completed survey ascribed to Obama a series of very far left positions on a variety of hot button issues, one of which was support for a total ban on handguns. After the survey came to light, Obama’s aides said he "never saw or approved" the questionnaire. They asserted the responses were filled out by a campaign aide who "unintentionally mischaracterize[d] his position." Indeed, Obama today claim’s that he has never supported a total ban on handguns.

But then additional facts emerged. Obama, it turned out, had met with the organization and was interviewed directly upon the basis of his answers to the survey. Further, the day after the interview, Obama filed an amended survey with hand-written comments in the margins. Once this came to light, according to the Politico, "[t]hrough an aide, Obama, . . . did not dispute that the handwriting was his. But he contended it doesn’t prove he completed, approved — or even read — the latter questionnaire." Several members of the local political organization that accepted the questionarie call Obama’s current claims "unbelievable."

Then in the April debates, Obama not only disclaimed any knowledge of the answers on which he was quizzed, but even claimed that the handwriting wasn’t his on the amended survey. This seems even more unbelievable under the circumstances. And indeed, according to, it is Obama’s handwriting on the document, though it is not precisely clear how they made that determination. Though this issue now trancends gun rights and goes directly to Obama's honesty and character - and thus his fitness to be President - the MSM seems distinctly uninterested.

Obama claims he believes in the Second Amendment as an individual right, but with room for "common sense" laws. Obama gave us an idea of what he considers "common sense" laws in 1999, when he proposed an incredibly restrictive plan for anti-gun legislation at the state and federal level that would have made the D..C. laws just overturned look as if they had been crafted by the NRA. The following article, reprinted at the Volokh Conspiracy, appeared in the Dec. 13, 1999 edition of The Chicago Defender:

Sweeping federal gun control legislation proposed by Sen. Barack Obama (D-13th) would increase the penalties on gun runners who are flooding Chicago's streets with illegal weapons. . . .

Obama outlined his anti-gun plan . . . Obama is proposing to make it a felony for a gun owner whose firearm was stolen from his residence which causes harm to another person if that weapon was not securely stored in that home.

He's proposing restricting gun purchases to one weapon a month and banning the sale of firearms at gun shows except for "antique" weapons. Obama is also proposing increasing the licensing fee to obtain a federal firearms license.

He's also seeking a ban on police agencies from reselling their used weapons even if those funds are used to buy more state-of-the-art weapons for their agencies. Obama wants only those over 21 who've passed a basic course to be able to buy or own a firearm.

He's proposing that all federally licensed gun dealers sell firearms in a storefront and not from their homes while banning their business from being within five miles of a school or a park. He's also banning the sale of 'junk" handguns like the popular Saturday Night Specials.

Obama is . . . also asking that gun manufacturers be required to develop safety measures that permit only the original owner of the firearm to operate the weapon purchased.

. . . Obama is also seeking to increase the federal taxes by 500 percent on the sale of firearms, ammunition [sic] -- weapons he says are most commonly used in firearm deaths.

Some of the provisions discussed above would make it prohibitive to own a firearm – and essentially impossible to buy one. Anyone who faced a felony with over a year in jail for a stolen firearm would logically have to keep the gun under lock and key at all times, assuming one was willing face such severe criminal penalties to own a gun in the first place. The costs Obama would add to gun ownership and the banning of lower priced "junk" handguns would effectively leave only the financially well to do able to own a weapon. The technology Obama wants on the gun raises its own problems, including for weapons available inside homes for any family member to access in an emergency and the ability to resell the weapons. But the most onerous is last. His call for a federal law limiting sales to storefront businesses and banning all firearms sells from "any gun store within five miles of a school or park . . . would eliminate gun stores from almost the entire inhabited portion of the United States." I think it safe to say that inability to legally buy a handgun in the U.S. would likely serve as a significant narrowing of the Second Amendment right Obama claims to believe in so fervently in the wake of the Heller decision.

Although 40 states currently allow concealed carry permits, Obama "told the Chicago Tribune in 2004 that he favored a national ban" on such permits. He did so on the basis that allowing states to issue concealed carry permits threaten residents of Illinois, even though the permits are only valid in the state of issue.

Interestingly enough, Obama voted to allow concealed carry permits in one instance – for retired Illinois police officers. Not to suggest that Obama would alter his position if there were political gains to be had, but his vote happened to come during the period in which "Obama was battling with his GOP opponent to win the endorsement of the Fraternal Order of Police."

And Obama does not see self-defense as a reasonable justification for carrying handguns. In 2001, as a state senator, Mr. Obama voted against allowing people who had received injunctive domestic violence protective orders dispensation to carry handguns for protection. It is not clear why he objected to law abiding people facing a threat of violence from obtaining a hand gun permit for self-protection. But his subsequent vote in the case of Hale DeMar make clear he sees state control of guns as more important than any individual right to own weapons and use them for self defense.

In 2003, someone broke into the home of Hale DeMar in Wilmette, Illinois. DeMar used a handgun – banned from the locality – to defend his family. DeMar was prosecuted by the town for this offense. A bill was introduced into the Illinois Senate in response that would have given citizens "a legal defense against prosecution for violating a local handgun ban if they actually used the firearm for lawful self-defense on their own property." Obama was one a handful of Democratic Senators to vote against that bill, which passed overwhelmingly in 2004 despite Obama’s opposition.

In 2004, while running for the U.S. Senate, Obama stated that he was in favor of renewing the assault weapons ban on over 200 different types of guns instituted during the Clinton Presidency. He said "I believe we need to renew -- not roll back -- this common sense gun law."

As a U.S. Senator, in 2005, Obama voted against Senate Bill 397 that would have protected gun manufacturers and stores that sell firearms from law suits by cities and states because of gun crime arising solely out of the misuse of their product.

Obama’s sole vote in support of the right of gun owners came in the wake of Katrina, when police and federal agents were breaking into the homes of law abiding citizens to confiscate their weapons. Obama joined with the vast majority of the Senate in voting for a bill to prohibit federal agents from confiscating firearms during a declared state of emergency.

While most of the above has stayed well out of the pages of the MSM, Obama has repeatedly been questioned on whether he supported the D.C. law restricting gun ownership and usage – which Obama clearly does and far more. Obama has changed his publicly stated position from "yes" to "never" to "I don’t know" and back again, all within the space of several months, and all without ever being challenged on his responses.

In November, when his campaign was asked about Obama's position on gun control and the D.C. ban on handguns, the campaign responded that Mr. Obama thought the D.C. gun laws constitutional. No correction was issued until seven months later when, immediately after the Heller decision was released, Obama claimed that he always had believed the opposite. As Charles Krauthammer wryly observed:

Last week, when the Supreme Court declared unconstitutional the District of Columbia's ban on handguns, Obama immediately declared that he agreed with the decision. This is after his campaign explicitly told the Chicago Tribune last November that he believes the D.C. gun ban is constitutional.

Obama spokesman Bill Burton explains the inexplicable by calling the November -- i.e., the primary season -- statement "inartful." Which suggests a first entry in the Obamaworld dictionary -- "Inartful: clear and straightforward, lacking the artistry that allows subsequent self-refutation and denial."

In a February 11, 2008 interview conducted by the Politco, Obama agreed that he supported the D.C. handgun ban as constitutional as a part of "reasonable" gun control measures:

Q: You said recently, "I have no intention of taking away folks' guns." But you support the D.C. handgun ban, and you've said that it's constitutional. How do you reconcile those two positions?

A: . . . Because I think we have two conflicting traditions in this country. I think it's important for us to recognize that we've got a tradition of handgun ownership and gun ownership generally. And a lot of law-abiding citizens use it for hunting, for sportsmanship, and for protecting their families. We also have a violence on the streets that is the result of illegal handgun usage. And so I think there is nothing wrong with a community saying we are going to take those illegal handguns off the streets. And cracking down on the various loopholes that exist in terms of background checks for children, the mentally ill. We can have reasonable, thoughtful gun control measure that I think respect the Second Amendment and people's traditions.

The problem is of course that, while Obama pays lip service to the Second Amendment, those "reasonable, thoughtful gun control measures" that Obama has supported severely restrict lawful gun ownership. They are inconsistent with a Second Amendment right to keep and bear arms for self defense.

According to a February 15, 2008 AP article, "[a]t his news conference, [Obama] voiced support for the District of Columbia's ban on handguns"

During the April 16, 2008 Democratic debate, Obama was asked about the D.C. gun law and whether he saw it as "consistent with an individual's right to bear arms?" Obama, the Constitutional law Professor, sidestepped the specific issue of the D.C. gun law – despite the fact that D.C.’s law is, in all relevant respects the same as Chicago’s. He said that he could not take a position because he had not read the briefs, and then added:

"As a general principle, I believe that the Constitution confers an individual right to bear arms. But just because you have an individual right does not mean that the state or local government can't constrain the exercise of that right, in the same way that we have a right to private property but local governments can establish zoning ordinances that determine how you can use it. "

And Obama’s latest pronouncement on the Supreme Court decision in Heller has been that the decision mirrors what has always been his own deeply felt beliefs. In an article ": "Obama clarifies position on D.C. gun ban", Obama is quoted as saying:

"What I said was that I believe Second Amendment as being an individual right and have said that consistently. I also think that individual right is constrained by the rights of the community to maintain issues with public safety. I don't think those two principles are contradictory and in fact what I've been saying consistently is what the Supreme Court essentially said today."

(H/T Powerline).

Obama's big lie there is claiming that what he believes should be the law is what the Heller Court decided. As to his lie about supporting the D.C. law, with special thanks to Hot Air, here it is in video form:

As amply demonstrated above, what Obama has supported are gun laws far more onerous and restrictive than D.C.’s. It is wholly at odds with his claim to have always supported an individual right to keep and bear arms that mirrored the Heller decision. While Obama mouths the words that the Second Amendment is an individual right that he supports, his belief in "common sense" laws restricting that right are such as would render it a nullity. All of this tells us as much about Obama's character, honesty and trustworthiness as it does about his real position on the Second Amendment.

1 comment:

Michael Ejercito said...

A bill was introduced into the Illinois Senate in response that would have given citizens "a legal defense against prosecution for violating a local handgun ban if they actually used the firearm for lawful self-defense on their own property." Obama was one a handful of Democratic Senators to vote against that bill, which passed overwhelmingly in 2004 despite Obama’s opposition.
How can anyone defend that ?

These facts need to be screamed from every hilltop!