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University of Chicago Constitutional Law Professor Endorses Individual Rights View of Second Amendment:

"[Barack Obama] said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights." "'I think there is an individual right to bear arms, but it's subject to commonsense regulation' like background checks, he said during a news conference."

On the other hand,

Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people's guns.

At his news conference, [Prof. Obama] voiced support for the District of Columbia's ban on handguns, which is scheduled to be heard by the Supreme Court next month.

Sounds like it's a pretty thin form of "individual rights" he supports — and he doesn't intend to take away people's guns, except if they're the very sort of gun that people are most likely to want to keep for self-defense purposes. (Though, to be fair, the Bush Administration's Justice Department seems to have taken a view that may amount to the same thing.) Or maybe he as President wouldn't campaign to take away people's guns, but thinks it's OK if "local jurisdictions," including federal ones, ban people from owning handguns. Hard to tell for sure.

Hat tip: How Appealing.

Thoughtful (mail):
Wow. On reading this, I did a Wikipedia search and found from 1993 to 2004 Obama was a lecturer on Constitutional law at U of C; I hadn't heard that before. So I'm getting the impression that despite this, EV would have flunked him on his understanding of the 2nd amendment had he been Eugene's student.

I see nothing about him lecturing in U of C's economics department. I am not surprised by this.
2.15.2008 6:08pm
Asher Steinberg (mail):
Maybe he's in the Chemerinsky/Winkler rational basis review boat.
2.15.2008 6:24pm
PLR:
If I were potentially changing my residence to 1600 Pennsylvania Avenue in the District and would be receiving Secret Service protection, I would also support the District's handgun ban.

Like I've said to people, Barack's nobody's fool.
2.15.2008 6:43pm
Ugh (mail):
EV - you need to update this post as your first paragraph looks like it's quoting Obama when, at least to the first sentence, the linked AP story is paraphrasing (or at least not directly quoting).
2.15.2008 6:46pm
Carolina:
His position is simply incoherent. On other occasions, he has expressed his approval of a ban on semi-automatic weapons.

So, handguns are out, semi-autos are out (including all military-style rifles). What's left of his "individual right?" Hunting rifles, I guess.

I'll eat my copy of the second amendment if anyone can give me a coherent argument as how the second amendment protects hunting rifles and nothing else.
2.15.2008 6:59pm
frankcross (mail):
This is not incoherent. People who favor individual rights do not believe they are absolute. Lines must be drawn and that process will be a time consuming and difficult one. You can dislike where he draws the line, but it's not incoherent and it doesn't justify any flunking
2.15.2008 7:02pm
LM (mail):
Any votes he risks by waffling on this issue aren't likely the ones he's most concerned about right now.
2.15.2008 7:02pm
Eugene Volokh (www):
Ugh: I'm puzzled -- how can "[Barack Obama] said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights," which describes Obama's views in the third person, "look[] like it's quoting Obama"? Even Bob Dole didn't refer to himself as "he," I think.
2.15.2008 7:03pm
Arkady:
I dunno. Here's the reportage that I've found:


At his news conference, he voiced support for the District of Columbia's ban on handguns, which is scheduled to be heard by the Supreme Court next month.

"The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gang bangers and random shootings on the street isn't born out by our Constitution," Obama said.


I'm not sure that what he said supports the DC ban so much as affirms that local jurisdictions can initiate gun safety regs, not all of which might pass constitutional muster. Has anyone ever asked him directly about the DC ban?

I've seen this Chicago Trib quote:


But the campaign of Democratic presidential hopeful Barack Obama said that he "...believes that we can recognize and respect the rights of law-abiding gun owners and the right of local communities to enact common sense laws to combat violence and save lives. Obama believes the D.C. handgun law is constitutional."



But the quote is strange since it has him referring to himself in the 3d person.

It doesn't follow, does it, that since he thinks local jurisdictions can enact gun safety laws that he also thinks that the DC ban is constitutional?
2.15.2008 7:04pm
Carolina:

This is not incoherent. People who favor individual rights do not believe they are absolute. Lines must be drawn and that process will be a time consuming and difficult one. You can dislike where he draws the line, but it's not incoherent and it doesn't justify any flunking.


Of course lines must be drawn.

I am just throwing down the gauntlet, as it were, to challenge anyone to explain to me based on founders/history of the constitution/history of the early republic how exactly a right to hunting rifles was put into the constitution.

Hint: It can't be done. If the right to hunt was even on the radar of the founders at all, it was at the very bottom of the list of reasons for adopting the second amendment.
2.15.2008 7:06pm
Pon Raul:
As Rush said, Obama is a blank slate onto which you can project your own positions. He is very skilled at making sure that people don't know where he really stands.

The only thing that we know for sure is that he is for hope, and the future, and hope for the future, and a future full of hope. If you believe that the past isn't the future and you hope for the future to come, then you must vote for Obama.
2.15.2008 7:07pm
K Parker (mail):
PLR,

Your position is incoherent, too. Do you really think there are would-be assassins out there who will be deterred by a handgun ban?
2.15.2008 7:08pm
Oren:
If I were potentially changing my residence to 1600 Pennsylvania Avenue in the District and would be receiving Secret Service protection, I would also support the District's handgun ban.
Oh come on - the SS is set up to protect the potus from snipers with 50cal rifles (range ~ 2 miles). Handguns don't enter into it.

I'll eat my copy of the second amendment if anyone can give me a coherent argument as how the second amendment protects hunting rifles and nothing else.
Argument: the 14A did not incorporate the 2A as part of the 'right and immunities' clause and therefore states like IL may restrict weapons used for self defense.

In my recent arguments on this site, it seemed like most folks advocate a very narrow interpretation of the 2A (or the absurd notion that it somehow ties up to the 1868 state of affairs). I've always believed that the 14A specifically means that anything prohibited to Congress is likewise prohibited to the various states.
2.15.2008 7:18pm
Roach (mail) (www):
He was a gun control fanatic while I was at Chicago, forcefully arguing for a ban on handguns and supporting Mayor Daley's meddlesome "negligent oversupply" lawsuits.
2.15.2008 7:30pm
Thorley Winston (mail) (www):

Oh come on - the SS is set up to protect the potus from snipers with 50cal rifles (range ~ 2 miles). Handguns don't enter into it.


I'm not sure the Secret Service agents guarding the President on March 30, 1981 would agree.
2.15.2008 7:30pm
Asher Steinberg (mail):
Clearly he thinks that there's an individual right but supports a standard of review so low that any statute reasonably related to decreasing violence would be constitutional.
2.15.2008 7:44pm
Carolina:

Argument: the 14A did not incorporate the 2A as part of the 'right and immunities' clause and therefore states like IL may restrict weapons used for self defense.


That is an argument for a toothless 2nd amendment, not an argument for a second amendment that protects hunting rifles and nothing else, which is what Obama claims he believes.
2.15.2008 7:47pm
Oren:
Thorley, the secret service is immensely lucky that the Gipper didn't die on the OR table because their performance was sub-Quayle that day.
2.15.2008 7:48pm
Oren:
Carolina, I've spent three or four days trying to argue that the bill of rights is not toothless with respect to the states - mostly to no avail. Trying to argue the other side here would probably make my head explode.
2.15.2008 7:50pm
Smokey:
Obama is the perfect definition of the triumph of form over substance.
2.15.2008 8:04pm
Dave Hardy (mail) (www):
Thorley, the secret service is immensely lucky that the Gipper didn't die on the OR table because their performance was sub-Quayle that day.

I spoke at the time with a Secret Service atty who said the same thing. If, I forget, 1-2 of them hadn't been wounded, heads would have rolled. Transitioning from secure environment indoors to secure in the car, the one time of exposure, and everyone was enjoying the day and not scanning for an attacker pressing in, probably with a facial giveaway and one hand in a pocket. If someone is within say 20 feet of the president, pressing in, with his right hand out of sight ... hello? Maybe he wants to give the chief executive his car keys? Swap pocket knives?
2.15.2008 8:46pm
33yearprof:
I am just throwing down the gauntlet, as it were, to challenge anyone to explain to me based on founders/history of the constitution/history of the early republic how exactly a right to hunting rifles was put into the constitution. Hint: It can't be done. If the right to hunt was even on the radar of the founders at all, it was at the very bottom of the list of reasons for adopting the second amendment.


Challenge accepted.

In Pennsylvania, at the very first state convention to ratify the new federal Constitution, a substantial minority (about 30%) of delegates called for a bill of rights with a provision:

7. That the people have a right to bear arms for the defense of themselves and their own State, or of the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.

2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 665 (1971).

The Pennsylvania Minority's call for a Bill of Rights (including #7) was reprinted all over the Colonies. It was well known to Madison and the other members of the first Congress.
2.15.2008 8:55pm
PersonFromPorlock:
And note the strict 'strict scrutiny' provision:

...and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.
2.15.2008 9:19pm
Brooks Lyman (mail):
PLR -

If I were President or the Secret Service, I would (or should, although given some people's opinions about law-abiding gun owners, I wonder...) be more concerned about the (apparently many, given the DC murder rate) criminals who apparently don't pay any attention to the DC Gun ban. Given the membership of some of the large criminal gangs, one has to wonder whether they might decide to, shall we say, enter politics (in their own manner), possibly as surrogates, members or sympathisers of terrorists.

In any event, the latest mass-murders in supposedly "gun-free" zones suggest the total bankruptcy of the current gun-free zone policy, particularly when dealing with people who are trying to make a public statement, insane as it may be.
2.15.2008 9:54pm
SFBurke (mail):
Uh 33YearProf: how does your quote of PA provision that did not pass rise to the challenge? It seems to me that it states 3 reasons that people can have guns including the right to defend themselves. So at best you have shown that the founders may have cared about hunting but you certainly haven't shown that was the limit of their concern -- indeed quite the opposite. I think Carolin's point -- that the 2nd ammendment can't be read to be limited to provide protection for hunting rifles -- stands.
2.15.2008 9:56pm
merevaudevillian:
Sounds like it's a pretty thin form of "individual rights" he supports


That's exactly it. In fact, it's difficult to say that it's an "individual rights" at all.

Although I suppose the snappy rejoinder to the Republican candidate might be, "I believe in an individual right to speak freely, but not political speech too close to an election." Or something along those lines.
2.15.2008 10:11pm
Kevin P. (mail):
Wikipedia has a fairly comprehensive coverage of Barack Obama's positions on gun control:


As a state legislator in Illinois, Obama supported banning the sale or transfer of all forms of semi-automatic firearms, increasing state restrictions on the purchase and possession of firearms and requiring manufacturers to provide child-safety locks with firearms.[85] He has also supported a ban on the manufacture, sale and possession of handguns.[86] He sponsored a bill in 2000 limiting handgun purchases to one per month. He also voted against a 2004 measure allowing a self-defense exception for people charged with violating local weapons bans by using a gun in their home.[87] Although out of line with most of his anti-gun voting history, in 1999, Obama voted "present" on SB 759, a bill that required mandatory adult prosecution for firing a gun on or near school grounds. The bill passed the state Senate 52-1.[88] Illinois allows lawmakers to abstain from issues by voting present instead of yes or no.

Obama was also a board member[89] of the Joyce Foundation which funds and maintains several gun control organizations in the United States.

He supported several gun control measures, including restricting the purchase of firearms at gun shows and the reauthorization of the Federal Assault Weapons Ban.[90] While in the US Senate, Obama has voted against legislation protecting firearm manufacturers from liability.[91]. Obama did vote in favor of the 2006 Vitter Amendment to prohibit the confiscation of lawful firearms during an emergency or major disaster, which passed 84-16.[92]

He is rated F by the National Rifle Association.[93] The NRA describes the recipient of its F grade as a "true enemy of gun owners' rights."[94]


But we can all hope! There is hope! For the future!
2.15.2008 10:51pm
33yearprof:
I think Carolin's point -- that the 2nd ammendment can't be read to be limited to provide protection for hunting rifles -- stands.


What are you smoking?

That wasn't the challenge. The challenge issued (which may not be Carolina's position) was to show that anyone WAS thinking about hunting rifles. I did that.

The founders were also aware of crime (PA and Sam Adams in Mass), the "village idiot" (PA again), and insurrection (NH) but they decided to adopt a "clean" Second Amendment. Not so felons could possess arms but so that the right of good citizens would be unlimited (compare similar "clean" provisions in various state Constitutions adopted contemporaneously with the federal BOR).

It's the same principle that led them say to "Congress shall make no law ... abridging the freedom of speech" without going on to say something like: unless you want to shout "Fire," when there is none, in a crowded theater.

They were writing a Constitution, not a comprehensive statute. They wanted it short and clean.
2.15.2008 11:20pm
wuzzagrunt (mail):
We can hope for him to change.
2.15.2008 11:29pm
A Law Unto Himself:
I HOPE that he doesn't become the 44th President of the United States.
2.16.2008 12:22am
Daniel Chapman (mail):
No, his "challenge" was poorly worded, but it was clear enough. He wanted someone to show evidence that the founders meant to put "exactly" a right to hunting rifles in the constitution. That means no more, no less.
2.16.2008 12:42am
PGofHSM (mail) (www):
One can believe the 2nd Amendment supports a right to bear arms to defend against tyranny -- the usage most recently on the Founders' minds -- and not a right to bear arms for personal self-defense. As far as I know, the Founders wrote the 2nd Amendment, like most of the Bill of Rights, to prevent Congress from becoming excessively powerful. But there's very little reason to think it applies against the states, particularly given the phrasing "being necessary to the security of a free State" instead of "being necessary to a free People."

Note to those who think the 14th Amendment applied the full Bill of Rights to the states: if that were true, the states would be required to give grand juries for felony indictments.
2.16.2008 12:46am
Daniel Chapman (mail):
Didn't read all those posted about the amicus briefs, huh?
2.16.2008 1:00am
Kovarsky (mail):
i wish you could idiot-proof the internet.
2.16.2008 4:52am
Xrlq (mail) (www):
(Though, to be fair, the Bush Administration's Justice Department seems to have taken a view that may amount to the same thing.)


That's being a bit TOO fair. The Bush Administration calls for heightened/intermediate scrutiny, a standard DC's ban would almost certainly fail to meet on remand.
2.16.2008 9:17am
Michael Edward McNeil (mail) (www):
PGofHSM wrote:
As far as I know, the Founders wrote the 2nd Amendment, like most of the Bill of Rights, to prevent Congress from becoming excessively powerful. But there's very little reason to think it applies against the states, particularly given the phrasing “being necessary to the security of a free State” instead of “being necessary to a free People.”

Except Eugene has looked into this matter in detail and determined that “free State” in the usage current at the time of the founding of the nation did not mean a “free state government of the U.S.” but rather “free polity.”  As Dave Kopel quite recently pointed out here:  “Eugene Volokh’s Notre Dame L. Rev. article ‘Necessary to the Security of a Free State,’ collects every use of ‘a free state’ during the Founding Era, and shows that the phrase was a term of art which was used only to mean ‘a free polity’ and never to mean ‘a free American state government.’”
2.16.2008 9:53am
33yearprof:
This is a bit off topic but it's getting a lot of attention now that Halbrook's attempt to even things out was withdrawn.

[quote]Clements gets "special treatment" because he is part of the Supreme Court "insiders" group. The Washington elite.

It is unfair for the court to allow one "side" 45 minutes and the other side only 30. It looks like favoritism and undercuts the appearance that "Justice" is dispensed evenhandedly at the Supreme Court. It will really weaken the perceived legitimacy of any anti- or empty- individual right decision among the 3/4 of ordinary Americans who believe in an individual right and still believe the Law stands for something other than unfettered judicial choice.
2.16.2008 10:28am
david still (mail):
TheSupreme Court years ago announced that separate but equal was just dandy and legal.
2.16.2008 12:08pm
CWuestefeld (mail) (www):

I think there is an individual right to bear arms, but it's subject to commonsense regulation

That "common sense" thing just drives me nuts. I think the anti-defense people are trying to create a permanent association in our minds between the words "common sense" and "regulation". It's just like you never hear the word "question" today, except when preceded by the word "quick": it's always "can I ask a quick question?".

Making the term "common sense" ubiquitous in policy debate is insidious. Its clear purpose is to excuse the speaker from needing any real justification: "why do you advocate this?" "It's just common sense.".

The thing is, even if it really IS common sense (and the simple fact of the amount of debate indicates that it is NOT), that does not excuse one from the need to debate the policy. Our history is riddled with common sense mistakes. Of course we should sterilize felons and the mentally handicapped. Of course the sun revolves around the earth.
2.16.2008 12:12pm
Don Meaker (mail):
1. The 2nd Amendment not create a right, but rather, recognizes a pre-existing right.
2. The 14th Amendment extends federal rights to the states.
3. Crew served weapons, such as ships with cannon, are part of that right, as the constitution recognizes that Congress may take advantage of privately owned crew served weapons by granting Letters of Marque and Reprisal.
3. The "Miller" test suggests that utility to the militia is a touchstone as to what kind of weapons people would be permitted to possess. The National Guard is part of the militia, and they have Tanks, Artillery, Air Defense Missiles, as well as machineguns, grenades and mortars.
4. A Naval Militia would have armed vessels corresponding to the needs of privateers.
5. "Well Regulated" means capable of sufficient control to hit targets or target arrays, according to the Founders recollection of 18th Century warfare. That can mean hitting ships, in the case of naval militia acting as privateers, individual scouts using the horrific terrorist methods of the Indian wars, or the tough fight at Oriskany, or arrays of armed men at short range as was the norm at Saratoga, Freemans Farm, Brooklyn Heights, or any of the famous battles of the Revolutionary war.
2.16.2008 12:41pm
Don Meaker (mail):
To me "common sense" regulation would encourage ownership of rifles in common federal calibers. One suitable regulation would be Federal law exempting from sales taxes ammuntion in federal calibers, such as .45/70, .45ACP, 7.62X51, .30/06, .30/40 Krag, .38 Special, 9mm, .45 Colt, 12.7x99, and 12 gauge.

Another useful regulation would be to require voters to carry and display a fire arm in one of the above calibers as they registered or appeared to vote.
2.16.2008 12:46pm
TLB (mail) (www):
Regarding him being a constitutional scholar, he misrepresented or doesn't understand the 14th Amendment.

See also this:
tinyurl.com/2suyt9

Regarding guns, he was on the right side on one issue:
http://lonewacko.com/blog/archives/007416.html
2.16.2008 1:04pm
zippypinhead:

Kevin P. wrote:
Wikipedia has a fairly comprehensive coverage of Barack Obama's positions on gun control [and quoting long legislative history]

Well, that's an interesting voting record! If we assume (just for the sake of argument) that President-elect-maybe Obama's not being disingenuous with his latest statements versus his long-held voting pattern, how does he reconcile his position that there's an individual Second Amendment right, while still upholding the Constitutionality of the most restrictive firearms restrictions on the books anywhere in the U.S. (some of which he personally voted for)? The only ways I can think of are:

1. The standard of review of alleged Second Amendment infringements is mere "rational basis." Well, there goes a couple hundred years of Enumerated Rights standard of review stare decisis.

2. The Second Amendment is not incorporated by the 14th Amendment. Well, there's a chance this might fly, except that incorporation doesn't relate to D.C. and the Heller case.

3. The Miller test is inapplicable to civilian firearms ownership. Well, there goes stare decisis, again.

Frankly, the only one of these three that someone who was supposedly qualified to be a lecturer on Constitutional Law at the University of Chicago Law School could argue with a straight face might be #3. But I don't detect much of a reasoned analysis of the failings of the two-prong "useful to military/common use" test of Miller in Obama's statements, either.

So what do I conclude? To quote an earlier generation Presidential candidate: "Pander-bear!"
2.16.2008 1:29pm
zippypinhead:

Don Meaker wrote: To me "common sense" regulation would encourage ownership of rifles in common federal calibers. One suitable regulation would be Federal law exempting from sales taxes ammuntion in federal calibers, such as .45/70, .45ACP, 7.62X51, .30/06, .30/40 Krag, .38 Special, 9mm, .45 Colt, 12.7x99, and 12 gauge.

Whoa, don't forget 7.62x39 (given the amount of AK/SKS ammo the Army has been purchasing to outfit the Iraqi and Afghani armies lately, it's gotta count), or .30 carbine (for the M1/M2 Carbine, the long gun produced in the largest numbers for WWII, which is still being sold domestically both as mil-surps by CMP and as new repros by Auto Ordinance).

Although I don't think it's fair for Don to ask voters to haul their Barrett M82/M107s and other .50 BMGs (a/k/a chambered for 12.7x99 NATO) to the polls -- too heavy and bulky to hold waiting in line at the polls. Just bring a round -- since the ammo costs about the same per 10-round box as you can buy a cheap .38 for at a pawn shop, just having the ammo ought to prove you're qualified to vote, eh? ;-)
2.16.2008 1:42pm
Jon J. (mail):
Just as a brief correction, which is partially noted in the comments:

Obama was a senior lecturer at UC Law, but not a full professor. There are some who feel rather strongly about the distinction, and (I think) justifiably so.
2.16.2008 1:53pm
wuzzagrunt (mail):
Common sense, and the ability to read English, leads one to the understanding that the 2nd A. recognizes a broad individual right. The "Militia Clause" reminds us that we, as citizens, have an obligation to exercise said right. A "commonsense regulation" would be to require that all adult citizens (barring the morally/religiously scrupled and the handicapped) own at least one decent military rifle and carry a firearm everywhere it is remotely practical to do so.

Do you Antis honestly believe that the men and women who brought this country into existence would take a benign view of where we are today--with 14 year old kids terrorizing neighborhoods, and grown men and women whining that either: "'They' won't let us have guns", or; "'They' are failing to protect us"?

Sickening, it is.
2.16.2008 2:35pm
rosignol (mail):
As Rush said, Obama is a blank slate onto which you can project your own positions. He is very skilled at making sure that people don't know where he really stands.

As has already been mentioned, Obama was on the Board of the Joyce foundation, which bankrolls a fair number of gun-control groups.

Watch what he does, not what he says.
2.16.2008 4:53pm
Kazinski:
It will be interesting to see how Obama's anti gun record plays in critical purple states like Pennsylvania, Florida, Wisconsin, Oregon, New Mexico, Iowa, etc., in the general election. I could be critical as Al Gore discovered.
2.16.2008 7:49pm
Stash:
The correct idea that the 2nd Amendment is an individual right is the beginning of the question, not the end of it. Think, for example, of the vast jurisprudence we have on the 1st Amendment, or equal protection, or search and seizure--and the continuing disagreements about them. I think it would be a hard argument to make that it guarantees citizens the right to own a nuclear bomb--or even handgrenades and landmines.

While the case for "personal weapons" is eminently supportable, we regulate speech, we allow "compelling state interests" and legitimate exercise of the police power to justify apparent constitutional violations and place the burden of persuasion and proof on the person claiming a law unconstitutional.

In other words, I do not think acknowledging a personal right to bear arms necessarily will result in the right to bear particular types of arms, whether they be handguns or gatling guns. People argue with a straight face that flag-burning, mandatory prayer in the schools, teaching creationism and banning "hate speech" does not violate the first amendment, so what will stop people from arguing, or the courts from adopting, a highly restrictive view of the "individual right?"

My point is that the mere acknowledgement of an individual right does not lead inevitably to a fullblown gun-rights position any more than the 1st Amendment leads to the legalization of child pornography. Given our existing constitutional jurisprudence, there are many open questions, possible exceptions, glosses, "undue burdens" and degrees of scrutiny and standards of review not to mention "slippery slopes", that are unresolved as to how to interpret the extent the individual right.

So, saying "I believe in the individual rights interpretation" can be sincere, even coupled with a restrictive regulatory agenda. For example, I think that McCain and Feingold could, and would sincerely say that they believe in an "individual rights" theory of the 1st Amendment, but simply believe that their legislation is constitutional. They may be wrong, or egregiously wrong, but they are not liars for making that statement. And, certainly the Supreme Court believes in the "individual right" to hold property, but they went ahead and decided the New London case anyway.

Ultimately, then, the judgment is political, the same way our judgment of candidates on other constitutional questions and positions is political. The adoption of an "individual rights" theory is a big, but non-dispositive step.

I also think it is tune with Obama's style or positoning: i.e., acknowledge the merit, sincerity and "non-evilness" of at least part his opposition's position, yet stick to the very policy that is opposed by them on ostensibly superceding grounds. Rather than the traditional political "is not" "is so" exchanges, it is a somewhat therapeutic "I hear what you are saying, but I disagree."

While this may conveniently operate as an evasion tactic (especially if the "but I disagree" part is omitted), I think more of this approach would be useful in that it advances the debate. With Obama, you can say, OK, it's individual right: now let's argue about what that means. With other gun control advocates, you are left at square one of militia vs individual right.

Yah, I like the guy, even when I don't agree with him on the issues. Does his apparent willingness to concede some merit to opposing opinions mean he will change or even moderate his policies? I doubt it. But I think it better facilitates and advances the national debate in a salutory manner.
2.16.2008 9:55pm
Don Meaker (mail):
That is right, I forgot the .30 Carbine.

I suggested carrying an appropriate weapon to vote, in part because militia members were once required to bring their weapons to church.

And if I had a .50BMG machinegun... then a .45ACP sidearm would also be suggested...and so much more convenient. I wouldn't require voters to bring all their weapons, just one of them that met requirements.

The other odd thing about "gun control" as a concept is that fully automatic firearms have been manufactured with 30 dollars of parts and a few hours labor.

In California, it is my understanding that cap and ball revolvers don't count as firearms, so the California restrictions on possession or carry have a gaping hole.
2.16.2008 10:39pm
Brian G (mail) (www):
Hre's Obama's public position in a nutshell:

"If you are for individual gun rights, I am on your side. If you want guns banned, I'm with you."

In reality, Obama belives as much in individual guns rights as I believe that Harry Belafonte started the Civil War. (Dice Clay reference, by the way). To Obama, "commonsense regulation" means "ban as much as humanly possible."
2.17.2008 12:57am
wuzzagrunt (mail):
Barack is a political candidate who tells everybody what they want to hear. Can anybody help me understand how that qualifies as "change"?
2.17.2008 9:30am
Tony Tutins (mail):
Reading the briefs made it clear to me that the Second Amendment right came to us from England, where gun ownership was lawful even though the average man's ability to hunt was strictly limited or nonexistent, because game belonged to the King and various nobles. Therefore the Second Amendment has no basis in the ability to hunt.
2.17.2008 11:50am
Smokey:
Carolina:
If the right to hunt was even on the radar of the founders at all, it was at the very bottom of the list of reasons for adopting the second amendment. [my emphasis]
33yearprof:
Challenge accepted...

7. That the people have a right to bear arms for the defense of themselves and their own State, or of the United States, or for the purpose of killing game...
Seems that hunting is at the very bottom of 33yearprof's very own list. So, how's that challenge coming along?
2.17.2008 1:15pm
zippypinhead:

Don Meaker wrote:
The other odd thing about "gun control" as a concept is that fully automatic firearms have been manufactured with 30 dollars of parts and a few hours labor.

Yup. Which is going to be one of the big problems after the Supreme Court's presumed individual rights ruling in Heller with trying to articulate an intelligent way to continue strict regulation of machineguns while permitting common semi-automatic rifles (which, on other threads on this blog, seems to be a dividing line that intiutively makes sense to some people). Especially if one tries to apply a "lineal descendant" test like the Court of Appeals in Parker, you're not going to be able to discriminate very well between machineguns and other repeating firearms, IMHO.

Mechanically there's not much difference between a semi-automatic versus automatic -- in many instances the feed &ejection mechanisms and the receiver are identical. Minor trigger group modifications, an autosear, and perhaps bolt swap are all that's necessary. I once saw a BATF firearms tech in a court hearing convert a defendant's semi-automatic Bushmaster into a machinegun in about 15 minutes, using only a baggie of parts seized from the defendant's dresser. In WWII, supposedly some G.I.s converted semi-auto M1 Carbines to full-auto using only a screwdriver and file (but it didn't work too well, as the guns tended to keep firing until the magazine was empty). At the end of WWII U.S. arsenals converted some of the M1 Carbines into full-function M2 automatics (commonly used in Korea) by simply substituting parts.

This is one of several reasons why I am convinced that after the Supreme Court rules in Heller, hard-core gun control types (e.g., Brady campaign partisans) will feel like the follow-on litigation applying Heller to other aspects of gun control will feel like they're watching a slow-motion train wreck. After the inevitable 14th Amendment incorporation litigation and the application of whatever general principles are articulated in Heller to firearms other than the respondent's revolver, Paul Helmke and his fellow travelers may need to find a new line of work.
2.17.2008 1:25pm
Stash:
"After the inevitable 14th Amendment incorporation litigation and the application of whatever general principles are articulated in Heller to firearms other than the respondent's revolver, Paul Helmke and his fellow travelers may need to find a new line of work."

You mean just like the pro-lifers did after Roe v. Wade?
2.17.2008 4:43pm
Carolina:

No, his "challenge" was poorly worded, but it was clear enough. He wanted someone to show evidence that the founders meant to put "exactly" a right to hunting rifles in the constitution. That means no more, no less.


That is, in fact, what I meant. Apologies for the poor wording.

My intended point was that if you take Obama's comments and past record at face value, then he believes 1) that the second amendment protects an individual right to gun ownership but 2) this right is basically limited to traditional hunting rifles.

I find this position completely absurd based on the history of the second amendment. There is no evidence, and I mean none literally, that the sole concern of the founders was hunting.

You can argue for "hunting rifles only" from a policy perspective; but you can't argue it from a historical/constitutional perspective.

Thus, I extremely suspicious of Obama, given that he is smart and a trained lawyer, and claiming to espouse a position totally unsupported by history or scholarship. In short, I'm calling BS on this.
2.17.2008 5:14pm
zippypinhead:
Good point, Stash -- after the Courts clearly elucidate the scope of the Second Amendment right to keep and bear arms, Helmke and his followers can move to other forms of advocacy, perhaps firebombing gun manufacturers, picketing outdoor stores with gun counters, and harassing legal firearms owners. Oh, wait... harass firearms owners? Maybe they'd better find a different group to pick on... :)

But seriously, the point is simply that, if Heller goes like most students of Constitutional law expect, many if not most of the arguments in favor of extreme firearms restrictions in the U.S. aren't going to be worth a whole lot anymore. It will take years of follow-on cases to clearly establish the bounds of the enumerated right in the Second Amendment, but eventually there will be a general legal consensus as to what is and is not protected (obviously there will continue to be cases at the edges of the doctrine, but at least the broad core of the right will become fairly clear).

Personally, given what's now coming out about the psychological problems of the Northern Illinois shooter (which seems to fit the same pattern that most mass murder/suicides have had lately) it might be more productive if the anti-gun activists use their not inconsiderable energy to focus on improving the mental health system and the underlying societal conditions that foster crime.

Somebody who wants to kill a lot of people doesn't need a gun -- in fact they're less efficient for that task than some other available "tools." Ask Timothy McVeigh and his rental truck full of fertilizer/fuel, or the mass transit suicide bombers in London and Madrid. Or the 9/11 hijackers. Guns, by themselves, were no more responsible for the tragedy at NIU than the easy availability of automobiles were responsible for the street racing tragedy in the MD suburbs of D.C. this weekend that caused the senseless deaths of 8 pedestrians. I'm really sick of that old cliche that "guns don't kill people, people kill people," but there's actually something to it.
2.17.2008 5:25pm
Stash:
Just thinking here (based on my snide remark above--er, sorry zippypinhead), but the abortion issue seems to me to be a worthwhile analogy. On abortion, it seems to me one can, while recognizing the validity (or at least the fait accompli) of the individual right recognized in Roe v. Wade, still argue that there remain "reasonable regulations" that may be applied to its exercise. Controversial areas such as parental consent and partial-birth abortions come to mind.

Is it really too much of a straddle for a person to say that they believe that there is a right to abortion, but, that at the same time that some restrictions/regulation should apply? Are these people merely hypocrites? If so, you are probably talking about plurality opinion in this country.

Similarly, I do not think it is hypocritical to recognize that the Constitution says what it clearly says, and at the same time argue that the right is subject to restrictions/regulation. Again, I think that is probably plurality opinion in this country. And, given the language and evidence, I think it is probably more hypocritical NOT to recognize the individual right, than to recognize it and argue that some gun control is permissible.

Most of the posts here do not separate the political question of whether there should be gun control from the constitutional question of the individual right. The not yet fully crafted standard of review has hardly scratched the surface, and the field remains wide open--I'm just thinking, and no constitutional scholar, but what about:

1. Background checks--compelling State interest/exercise of police power to keep guns out of the hands dangerous persons;
2. Waiting period--not undue burden on right--compelling State interest to provide cool-down period to prevent purchase by persons in a violent passion or despondent;
3. Purchase limitations and bans on weapon categories--right to bear arms only extends to firearms "sufficient" to maintain well-regulated militia; deference to legislature's rational determination on the regulation of its own militia, so long as some "sufficient" right to bear arms remains.
4. Negligent sales liability: common law rules of negligence not undue burden on right, no NYT v. Sullivan heightened rule necessary, as is distinguishable.
5. State-mandated "standards of care" for storage, e.g. unloaded storage and trigger locks for negligent gun owners.

In addition, there is nothing to stop the Supreme Court from crafting some new "intermediate" standard of review regarding gun rights.

Personally, I remain agnostic on the relative merits of the public policy questions, in terms of what would be best to implement. I think it is clear, as Obama bravely (for his constituency) acknowledges that there is an "individual right." And, I respectfully disagree that because of the recognition of an individual right, ipso facto, no existing or future gun control will constitutionally survive. That was not the position of the DOJ, and frankly, it is not a constitutionally unreasonable one. A more expansive view is also reasonable, and arguably superior, but that does not mean it will prevail.

So, Obama gets the fundamental legal question right, but reasonably believes there is room for regulation. He may be wrong about how much room there is--there absolutely is some--but, unlike advocates of the collective rights doctrine, his "concession" advances the debate rather than deadlocking it.

(This doesn't change the political issue of whether gun control itself is good or bad; he obviously believes it is good.)

Ultimately, of course, hard-core gun advocates, like hard-core pro-choice advocates, will oppose every restriction, perhaps with equal success. I actually think that in the long run, an "individual rights" decision will be a boon for Democrats, because, like Roe did for pro-life Republicans, it will take the issue out of consideration for voters secure in the protection of the right by the courts. People will understand that these guys have to toe the line for the base, and vote on other issues.
2.17.2008 6:49pm
Don Meaker (mail):
The Constitution, Article 1 contains the following:
"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"

So, the militia is certainly subject to federal regulation, as a militia. The right of an individual to keep and bear is not subject to regulation by any power directly granted by the Constitution. Current US law on firearms regulations are justified under the <s>interstate</s> Commerce Clause.

The word "interstate" was effectively read out of the constitution during FDR's second term, as just as any man could suddenly become a rapist, and any woman could suddenly become a prostitute, any possession of any property could suddenly find itself in an interstate transaction.

When the firearms regulations are brought under renewed SCOTUS scrutiny, case by case, a case that shows the foolishness of such broad regulation would be needed. For example a criminal charge against a soldier from NY National Guard with an interstate commerce crime for accepting a federal firearm for purposes of training in Ft. Benning Georgia. Such a case could force some kind of limitation on the Commerce Clause, such as proximity to a state border, or some kind of commercial transaction.
2.17.2008 8:27pm
33yearprof:
I actually think that in the long run, an "individual rights" decision will be a boon for Democrats, because, like Roe did for pro-life Republicans, it will take the issue out of consideration for voters secure in the protection of the right by the courts.


I might even vote for a non-anti gun Democrat.
At the moment they don't exist around here.
2.17.2008 8:29pm
Stash:
33yearprof:

Interested in your definition of "non-anti gun Democrat." I assume there is some difference between that and a "pro-gun Democrat." Does a real (or at least repeated) promise not to do anything "to take away your guns" qualify? I mean if that means you have basically a "gun-neutral" candidate who will fight neither for nor against gun controls, would the candidate qualify for your vote?

Or how about adoption of the famous abortion straddle: "I personally oppose gun ownership, but recognize the right of individuals to have them"?

Good enough?
2.17.2008 9:46pm
Andy Freeman (mail):
It would be helpful if someone had an example of a gun restriction that Obama would find unconsitutional.

Heck - it would be nice if the "reasonable regulation" folks would do the same. If "reasonable regulation" is the right standard, then what doesn't satisfy it?

Surely there must be several examples, right? After all, if "reasonable regulation" is the standard, there must be unreasonable regulations that don't satisfy it, right?
2.17.2008 11:29pm
33yearprof:
Stash,
Around here there are No pro-gun Democrats. That is, those who would move legislation forward that favored gun owners. I guess I'd settle for someone who would do nothing more than oppose all anti-gun legislation (with a broad definition of "anti-gun") and join the pro-gun legislators in repealing some of the worst stuff in place. A mere follower would be fine.
Later, they might develop into a leader. But these are weak-ego people (that's why they so desperately need outside reassurance). You can't expect too much out of them.
2.18.2008 12:10am
Stash:
"It would be helpful if someone had an example of a gun restriction that Obama would find unconsitutional."

Well, I guess one would start with that you could not pass a law stating that no person could own any firearm of any kind. Given the individual right, that's the minimum.

The opposite questions is, what restrictions on the "right to bear arms," if any, would a pro-gun person find "reasonable"? Does it include, as some detractors have suggested, grenade launchers, artillary, Katyusha rockets, tanks, surface-to-air missiles, nuclear weapons? Does it include so-called "cop-killer" bullets and silencers? Is it limited to some sort of "personal firearm", and if so, what is the definition? Is it just "I know it when I see it" or is there some sort of rational line to be drawn?

Other than hearing about restrictions pro-gun folks don't like, I have never heard of any restriction they think passes constitutional muster.
2.18.2008 3:25am
Stash:
"It would be helpful if someone had an example of a gun restriction that Obama would find unconsitutional."

Well, I guess one would start with that you could not pass a law stating that no person could own any firearm of any kind. Given the individual right, that's the minimum.

The opposite questions is, what restrictions on the "right to bear arms," if any, would a pro-gun person find "reasonable"? Does it include, as some detractors have suggested, grenade launchers, artillary, Katyusha rockets, tanks, surface-to-air missiles, nuclear weapons? Does it include so-called "cop-killer" bullets and silencers? Is it limited to some sort of "personal firearm", and if so, what is the definition? Is it just "I know it when I see it" or is there some sort of rational line to be drawn?

Other than hearing about restrictions pro-gun folks don't like, I have never heard of any restriction they think passes constitutional muster.
2.18.2008 3:25am
Stash:
Here's a few more questions:

Can ex-felons be constitutionally barred from possessing guns?

Can illegal aliens (who may be from, say, Saudi Arabia) be barred from purchasing guns (such as large caliber automatic weapons), and if so, how do you enforce it without background checks?

Can you buy one on a student visa? Permanent residency?

Can minors be prohibited from purchasing guns? What about those under the drinking age?
2.18.2008 3:48am
David W. Hess (mail):
zippypinhead: . . . after the Courts clearly elucidate the scope of the Second Amendment right to keep and bear arms, Helmke and his followers can move to other forms of advocacy, perhaps firebombing gun manufacturers, picketing outdoor stores with gun counters, and harassing legal firearms owners. . . .


That is too much to hope for. Have PETA members ever thrown paint on men wearing leather as they exited a biker bar?

If the NFA $200 transfer tax on certain weapons was constitutional, then would a similar transfer tax created now also be constitutional? If it was $200 in 1934 then $4000 now should be close. What if it applied to semiautomatic weapons and handguns?
2.18.2008 1:26pm
Andy Freeman (mail):
The answers to Stash's questions are well known to folks who have actually paid attention to the debate.

I will repeat one of them for his benefit. Prohibition of felon and illegal alien ownership is no problem; gun owners groups actually push such measures. (However, I note that many of the pro-control folks seem to think that it's wrong to discriminate against illegal aliens, so they're the folks to argue with. Those of a more practical bent might point out that there isn't a citizen registry to check. Given that, it's unclear what the background check would do.)

I note that Stash's example of "unreasonable" is actually more strict than that of major gun banning groups. If he's going to appear reasonable, he's got a way to go.
2.18.2008 5:08pm
zippypinhead:

33year prof wrote: "Around here there are No pro-gun Democrats. That is, those who would move legislation forward that favored gun owners."

I can think of one -- who's even shown up on some possible Vice President lists recently: James Webb, junior Senator from Virginia. He's a former combat Marine, CCW permit holder, and NRA member. Webb's views on firearms got extra publicity when he got some poor staffer into a world of trouble a while ago by handing him his pistol before getting a flight, and the staffer got caught bringing it back into the Senate office bldg. in violation of D.C.'s gun ban.

But since Webb is a former Republican, I've got a hard time seeing him actually getting the nod, especially from Obama.
2.18.2008 6:02pm
Andy Freeman (mail):
> Does it include so-called "cop-killer" bullets and silencers?

What's a "cop-killer" bullet and why should it be treated differently? Hint: this is a technical issue and the details matter. (If you're relying on the NYT for your information....)

In other countries, silencers are considered good manners - why disturb other people? Why is that the wrong stance? Technical details matter here too. (If you're getting information from TV/movies....)

The effects of various gun restrictions often turn on technical facts. Shouldn't we assume that a reasonable person will know them and make reasonable judgements based on them and not mythology promoted by advocates on one side or the other?
2.18.2008 8:56pm
Andy Freeman (mail):
It's interesting that "stash" quickly changed the topic from unreasonable restrictions. The positions of other people don't affect reasonable positions.

The "what about other weapons" question was especially interesting. Is he suggesting that handguns and air to air missles should be treated the same?

Let me suggest a standard. Any weapon typically carried/used by police should be fairly unrestricted. (No felons, under age, etc.) After all, police are only allowed to use their weapons in self-defense.

And yes, if police won't go into a given neighborhood unless fairly well armed, the residents are entitled to at least the same level of weaponry. After all, they don't have backup, can't retreat, and are the targets. Police aren't.
2.18.2008 9:02pm
Stash:
Thanks Andy, that was the type of definition I was looking for. It excludes stuff like grenade launchers, but does it include everything a SWAT team carries or has access to, or is it limited to "cop on the beat" type weaponry?

And if one supports preventing felon and illegal immigrant restrictions, how can those reasonable restrictions be enforced other than by a background check? (The one example of a "reasonable restriction" Obama mentioned.) If we do no more to prevent illegal immigrants from purchasing guns than we do keep them from being employed, such a ban is meaningless. What would give the ban on felons, illegal immigrants etc., real teeth?

Secondly, much like the fight against strip joints, I think once outright banning is (correctly) found to be unconstitutional, you can expect anti-gun forces to turn to zoning rules to restrict the places gun sellers can operate. Whether those restrictions are "reasonable" will tried on a case-by-case basis.

Thirdly, like the fight against abortion, all sorts of stuff like waiting periods, educational requirements, zoning, retail licensing, etc., gambits will be tried. Some might stick, some not. We won't know until the courts rule as to what is "reasonable."

But mostly, I've been asking constitutional questions, and have been getting political answers. The constitution allows a lot of room for different policies between states and localities. Does the "bear" part of the clause require overturning concealed carry bans? I don't know.

I guess my point is that the celebration of the recognition of the "individual right" might be tempered with the recognition that there are a lot of possible slips between the cup and the lip. 35 years after Roe v. Wade, the pro-lifers continue to test the right on every front, from waiting periods, to licensing laws, parental consent, and funding considerations.

As I said, and I am agnostic on the policy implications of either side. I liked the Weapon Shops of Ishar as much as anybody, and I like shooting at the pistol range.

But I haven't been convinced either that gun laws result in any reduction of violence, or that they keep anyone who wants a gun from getting one. I agree that the number of guns in this country acts as some bulwark against tyranny, but I don't think DC's gun ban has reduced that deterent effect one iota--anymore than it has kept guns out of the place. On the other hand, I think that the complete gun ban has to fail constitutionally.

But, I don't care if one has to wait a couple days to get a gun; it takes that long to get a book from Amazon. I don't care if someone is prevented from assembling an arsenal in short order, and has to purchase it over time. And I really don't care if the opposite is true. There are people we mostly agree should have guns, so it seems necessarily reasonable that some method of ensuring that be put in place. Still, I can't really muster passion for either side. I simply don't get either gun-hate or gun-worship. (If this discussion had gone predominantly pro-gun control, I would have been needling the other side.)

I am interested in the constitutional issue. But I am not at all sure that the end result is necessarily the one being suggested here: that there are virtually no constitutionally "reasonable" limitations. You can be against those limitations as a political or policy matter, but that does not make them unconstitutional or that the courts will agree with that assessment.
2.19.2008 5:17am
Andy Freeman (mail):
> you can expect anti-gun forces to turn to zoning rules to restrict the places gun sellers can operate.

Once again, Stash suggests a "future" that has already happened.

I am, of course, still waiting for some "unreasonable" restrictions. (The only example given so far is beyond what the gun banning organizations have on their wish list.)

> But, I don't care if one has to wait a couple days to get a gun; it takes that long to get a book from Amazon.

Umm, most folks don't buy books from amazon. The records that can be checked can be checked instantly. (Not that checking does any good, but if we're set on it, let's do it correctly. Unless, of course, the goal is obstruction, not checking.)

Interestingly enough, PA used to do post-delivery checks. Yup, the buyer would pick up the gun and then the state would do whatever it felt like doing. If there was a problem, police would go and get the gun.

This worked as well as any of the waiting period schemes.

However - I'm willing to compromise. During the statutory waiting period, how about making state liable for all damages that the potential buyer incurs? Since the waiting period is for the people's benefit, shouldn't the people pay?

I note that Stash is quite happy with restrictions that haven't provided any benefits in the past. What's going to change in the future?

One of the big problems in the gun control debate is the lack of good faith. I'd love to try some things that haven't been tried, but absent good faith, that's simply impossible.

The argument "let's try it" requires that we give up things that didn't work. Stash agrees that we have a lot of gun control measures that don't do any good, but he still opposes repealing them.

One of the interesting things about the gun community is that it is full of ideas for trying to reduce gun crime. However, none of them will see the light of day as long as dumb restrictions are kept around.

In a very real sense, folks like Stash contribute to ineffective gun control.

I'm willing to believe that he means well, but is that really enough?
2.19.2008 9:32am
Westie:
Andy Freeman,
I think you're missing stash's point.
2.19.2008 10:51am
Tony Tutins (mail):
And if one supports preventing felon and illegal immigrant restrictions, how can those reasonable restrictions be enforced other than by a background check?

A good start would be not to give government ID to illegal aliens. Background checks are appropriate to the usual arms-length commercial transaction; private individuals should be free to sell to people whom they know.

Zoning and other laws prohibit "kitchen table" gun dealers, requiring them to operate only from storefronts. (Currently they also operate at gun shows, much like some sellers of canine paraphernalia only operate at dog shows.)

all sorts of stuff like waiting periods, educational requirements, zoning, retail licensing, etc., gambits will be tried. Some might stick, some not.

All these measures are in place, in various jurisdictions. They discourage gun sales to the point that many gun dealers have given up doing business, out of frustration.

Until Oswald shot JFK with a mail-order rifle, guns could be ordered by mail from companies just like amazon. Yes, it took a couple of days, but people did it to take advantage of lower prices or more variety than was available locally.

Before one-gun-a-month was enacted here, a local sporting goods store had an annual weekend gun sale, bringing in a huge amount of inventory, factory experts, seminars, etc. People waited all year for these bargains on safes, guns, optics, and reloading equipment. You might want to buy yourself a new pistol, a revolver for the wife, and a couple of 22s for the kids. Not any more. Why should a gun sale be prohibited any more than a sale of shoes or handbags at Nordstrom (one handbag a month?)?
2.19.2008 3:04pm