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McCain and Obama: Stark Contrast on Guns Rights

That's the title for my guest op-ed in this morning's Denver Post. John McCain disagrees with the NRA (and me) on the gun show issue, and he said so when he spoke at the NRA's annual member meeting this year. Barack Obama has spent the year dissimulating about his position on Second Amendment rights. Over the past several days, phone calls have even made purporting to be from the National Rifle Association, and telling voters that the NRA endorses Obama. In September, the Obama campaign used an e-mail list which had apparently been stolen from the National Shooting Sports Foundation. In previous career record, Obama is by far the most extreme anti-gun major party presidential nominee in American history. Regarding the Second Amendment, Obama's radical opposition to traditional American rights, combined with his vacuous rhetoric designed to mask his radicalism, is consistent with the Stanley Kurtz's analysis of Obama as a man of the far left.

Anderson (mail):
In previous career record, Obama is by far the most extreme anti-gun major party presidential nominee in American history. Regarding the Second Amendment, Obama's radical opposition to traditional American rights, combined with his vacuous rhetoric designed to mask his radicalism, is consistent with the Stanley Kurtz's analyis of Obama as a far left extremist.

Well, I'm persuaded that we've found an "extremist"; I'm just not so sure that it's Obama ....

Doubtless I'll be laughing out the other side of my mouth when I'm rounded up with all the other white people and shipped off in cattle cars to pick cotton in Alabama plantation-camps.

"If only I'd had some automatic weapons and ordnance pursuant to my Second Amendment rights!" I'll sigh.
11.3.2008 12:45pm
therut (mail):
Agree and his running mate is just as BAD. If Obama gets elected he will be a fool to try and pass gun control. But I feel he is probably a fool.
11.3.2008 12:49pm
Houston Lawyer:
As the Rodney King riots showed us, if you wait until the shit has hit the fan to think about arming yourself, it will be too late. If a man thinks nothing of your Second Amendment rights, what makes you think he cares about your First Amendment rights.
11.3.2008 12:50pm
therut (mail):
Anderson do you have a racial problem? Sure seems like it as everything you write is tinged with racial rhetoric. And to deny the truth is just tacky.
11.3.2008 12:51pm
Midnight Rambler:
Since the Democrats are poised to sweep two branches of government, the question now is, "To what extent has the DNC really given up on more federal firearm legislation?" Also, will there be enough moderate/conservative Democrats and Republicans in the House and Senate to defeat any new potential legislation.
On the second question, I think the answer might still be "yes."
11.3.2008 12:53pm
VincentPaul (mail):
Biden is just as extreme as Obama.
11.3.2008 12:57pm
PC:
Agree and his running mate is just as BAD. If Obama gets elected he will be a fool to try and pass gun control. But I feel he is probably a fool.

I really dislike Obama's stance on gun rights. My hope is that the blue dogs and western dems will revolt if the more liberal faction tries anything stupid (like the "assault weapon" ban). With people like Webb and Tester in the senate, I can't see any gun legislation making it past if the Dems get the magical 60 seats.
11.3.2008 12:58pm
Asher (mail):
Regarding the Second Amendment, Obama's radical opposition to traditional American rights

What? What's traditional about these rights? The Court didn't recognize their existence until a few months ago. So radical! 13 years ago he disagreed with a reading of the Second Amendment that wasn't law yet. I guess Walter Dellinger, D.C.'s counsel in Heller and a former Solicitor General, is a radical too.
11.3.2008 1:01pm
LN (mail):

combined with his vacuous rhetoric designed to mask his radicalism, is consistent with the Stanley Kurtz's analysis of Obama as a man of the far left.


I have to agree, the vacuous rhetoric to mask his radicalism is the greatest proof of his radicalism. Radicalism radical radicalism.
11.3.2008 1:02pm
Midnight Rambler:
Remember Biden's asinine response to a question on gun control during one of the Democratic debate? The guy asks if Biden will work to outlaw his "baby," a rifle he legally purchased under the 1994 "Assault Weapons" ban, a law Biden helped write, and Biden insults the guy and tells him to go screw himself.
http://www.youtube.com/watch?v=nkavwuWE5eQ
11.3.2008 1:03pm
Cornellian (mail):
Barack Obama has spent the year dissimulating about his position on Second Amendment rights.
. . . combined with his vacuous rhetoric designed to mask his radicalism


How do we know that Dave Kopel hasn't been doing the same? Maybe all Kopel's statements about the Second Amendment are really just clever rhetoric designed to disguise his true views. And what are those views? We don't really know, do we, given his sneaky rhetoric?

Kopel - wrong on guns, wrong for America.
11.3.2008 1:05pm
JB:
PC,
Very good point. The only way the Democrats will give up their gun control plank is if there are enough rural Democrats to counterbalance the urban ones. Ultimately moderate Democrat Representatives from the inland west and other nonurban, nonmachine areas will be better protectors of gun rights than Republicans, because they will be able to wage war for the soul of the Democratic Party.

Gun control is like abortion--the appropriate answer is some regulation but no prohibition, but because of the extreme positions on both sides there is no chance of getting any regulation, even the most basic and common sense, without starting down a very slippery slope toward prohibition. As a result all the good policies are politically impossible, and you wind up with one or another party sounding like hypocrites.

Obama is not a gun control ideologue. He is for gun control because his party is, and he needs to get the support of his party. If the Blue Dogs became essential to his political fortunes, he would change his tune. Essentially, he is an opportunist pandering to his base on this, and the only way to get him to change his positions is to change his base.
11.3.2008 1:08pm
Randy R. (mail):
What a pity. This used to be a good website. Now it's all anti-Obama, all the time.

So I guess that means that come Wednesday, this website will be officially dedicated to parsing every word of President-Elect Obama to prove that he plans to utterly destroy every aspect of American life that we hold dear.

Of course, his first legislative act will be to ban the production and eating of any pies that contain apples in them. Especially if they are baked by moms.
11.3.2008 1:08pm
Scote (mail):
2nd Amendment rights are irrelevant if you have no other rights. You can't use your guns in you are rotting in an undisclosed location without access to court or council. The current Administration maintains that it has unilateral power to arrest and detain anyone in secret, without charges forever. If McCain represents the status quo, then that will not change.

It strikes me as odd how many conservatives are afraid of "jackbooted thugs" taking their guns away, but cheerlead as the current administration takes all of their other rights away first. Seems a bit like boiling the frog slowly.

So, one needs to prioritize. First vote for the candidate most likely to respect the constitution and bill of rights in general, and based on the current administration that is not likely to be the Republican candidate.
11.3.2008 1:13pm
cboldt (mail):
-- The Court didn't recognize their existence until a few months ago. --
.
United States v. Miller, 307 U.S. 174 (1939)
.
The NFA would be unconstitutional in light of the 2nd amendment, upon a showing that a short barrel shotgun has a military use.
11.3.2008 1:13pm
Twenty non-partisan reasons to oppose BHO (mail) (www):
Midnight Rambler: thanks for reminding us of that; that would be a good thing to spread around.

And, from 2000:
All three said they were in support of gun control legislation, with Obama citing a need for higher taxes on ammunition and registration requirements on firearms, and Trotter citing his 1989 support of background checks and seven-day waiting periods in the State House.
11.3.2008 1:16pm
elim:
what rights have the conservatives hordes taken from us? I can't think of one. I will live with my inability to speak freely with terrorists overseas-it's not a right I exercised anyway and can't claim to be hurt by its loss. if Obama is just the equivalent of Richard Daley, he would likely be the most anti-gun president ever. do you think he is to Daley's right?
11.3.2008 1:18pm
Ben P:

Since the Democrats are poised to sweep two branches of government, the question now is, "To what extent has the DNC really given up on more federal firearm legislation?" Also, will there be enough moderate/conservative Democrats and Republicans in the House and Senate to defeat any new potential legislation.
On the second question, I think the answer might still be "yes."


Part of my always wondered why Republicans got upset when Democrats won "running as republicans."
this paints blue dogs as fiscally conservative democrats, but in my experience (in a state that's heavily "blue dog") that's not nearly the whole story. In particular with regard to gun policy, Blue dog democrats are pretty likely to block anything seriously radical.

Even if democrats get the "magical 60" votes, the won't be more than one or two on top of it, and I fully support the procedure of the senate. I didn't blame the democrats for obstructing when the republicans wanted to force though something they found objectionable, and I wouldn't blame the republicans for doing so either. If the more liberal faction of the democratic party tries to pass some sort of radical gun law, I'd fully expect the republicans to fillibuster.


Also, ask yourself, given heller, how likely is it that the Supreme court will drastically change even before the next midterm elections? 1 or 2 seats isn't much to change.
11.3.2008 1:20pm
Stolidus:
So, it is not enough to disagree with Obama. He dissimulates. He is associated with apparently stolen property. His rhetoric is not only vacuous, but cleverly designed to hide his extreme radicalism. And, to boot, your view is consistent with someone else who agrees with you.

You must be right; after all, how could one ever have an honest political debate with someone like that, or the idiots who support someone like that?
11.3.2008 1:21pm
JB:
Elim,
Your inability to speak freely with people the government thinks are terrorists.

Don't you remember the overreaches of federal power that happened under Clinton? Waco? How, a day before the Democrats probably take control of the government, can you defend federal power to arbitrarily arrest anyone it doesn't like just by calling them terrorists?
11.3.2008 1:21pm
Sarcastro (www):
Randy R. has reprinted a rumor about Obama's radical anti-Mom baked apple pie positions. It is of course silly to think Obama will ban mom-baked apple pies.

Randy R. might be asking for any evidence of Obama not banning eating mom-baked apple pies. That is not a useful question when asking if Obama hates eating mom-baked apple pies. A better question might be if any of Obama's many friends hated eating mom-baked apple pies.

But I again repeat, there is no evidence Obama will ban eating mom-baked apple pies. Randy R. is just being silly when he claims Obama will ban eating mom-baked apple pies.

Not that Randy R. doesn't usually ask good questions, it's just that this one about Obama banning eating mom-based apple pies is something that should be looked into and debunked.

Because Obama probably won't ban eating mom-baked apple pies. Though of course no one knows what he'll do when he gets into office, so it is possible Obama would ban eating mom-bake apple pies.

But it is very silly to think there is any evidence Obama will ban eating mom-baked apple pies.
11.3.2008 1:22pm
Ben P:

Obama is not a gun control ideologue. He is for gun control because his party is, and he needs to get the support of his party. If the Blue Dogs became essential to his political fortunes, he would change his tune. Essentially, he is an opportunist pandering to his base on this, and the only way to get him to change his positions is to change his base.


This seems to me the most likely situation.

I'd also say it's worth pointing out that as a state senator out of Chicago (when his "extreme opinions" were expressed) his "base" was more anti-gun than almost any in the country. Frankly I'd be much more suprised if he expressed a contrary position, but they he never would have been elected.
11.3.2008 1:23pm
Scote (mail):

what rights have the conservatives hordes taken from us? I can't think of one. I will live with my inability to speak freely with terrorists overseas-it's not a right I exercised anyway and can't claim to be hurt by its loss.


Ah, how short your memory...

Your domestic call records are currently being monitored by the NSA, the entire domestic internet is spied on wholesale, with fiber taps running from ATT backbones straight to the NSA. Financial, library and medical records can be warantlessly searched in secret without a judges order, and the search kept gagged forever. 2/3's of the US population lives in a "constitution freezone" within 100 miles of the border or coast, where the DHS can detain and search you without cause. You can be arrested and held forever without cause, trial or council, and tortured. And that's just a start.

You may not have noticed all of your rights disappearing because you were distracted by the shiny specter of mythical "gun grabbers" while your fundamental rights were being stolen from under you.
11.3.2008 1:27pm
JB:
To follow up:
If you truly believe Obama is a radical leftist, you had better admit that the expansions of unreviewable executive power that occurred under Bush are wrong, and work very hard to eliminate them, because if you are right about Obama then the full weight of the erosions of the Bill of Rights Bush undertook will come down on conservatives over the next 4 years.
11.3.2008 1:29pm
The Unbeliever:
2nd Amendment rights are irrelevant if you have no other rights. You can't use your guns in you are rotting in an undisclosed location without access to court or council.
Congratulations on getting it completely backwards.

Your rights to public and speedy trial, voting, security in your person and your effects, etc are irrelevant if a government can dictate its policies against the populace at whim. Your rights are worth exactly nothing if your government takes away the means the citizens have of enforcing their rights against an oppressive/totalitarian/rogue/etc government.

Put it this way: when the Founding Fathers decided that their core rights to "life, liberty, and the pursuit of happiness" were in jeopardy, which feature lent more help to their cause: access to English courts, or access to English arms and artillery?

Yes, yes, I know, us crazy conservatives and our doomsday scenarios. But you don't get to try scoring political policy points by misstating very critical civic concepts, especially dealing with ones as basic as the nature of force and its role in society.
11.3.2008 1:38pm
Randy R. (mail):
Unbeliever: So what you are basically saying is that if the gov't violates the constitution and takes away your right to a trial, you are going to start shooting people?
11.3.2008 1:45pm
Sarcastro (www):
[The Unbeliever, I think you mixed up "can" and "will."

Because the government can right now dictate it's policies based on it's whims, but it doesn't. And I don't see a lot of evidence that it is fear of the armed populace stopping it from doing so.]
11.3.2008 1:47pm
cboldt (mail):
-- the shiny specter of mythical "gun grabbers" --
.
Heh. Mythical, eh? I suppose so, to those of you who have no guns to be grabbed.
11.3.2008 1:47pm
Scote (mail):
"Congratulations on getting it completely backwards.

Your rights to public and speedy trial, voting, security in your person and your effects, etc are irrelevant if a government can dictate its policies against the populace at whim."

Yeah, that worked out great at Ruby Ridge and Waco.

Unless you are planning on shooting every cop who comes your way or shooting a judge for not granting a sufficiently speedy trial (which I strongly advise you not to) then your theory is full of holes. You are following a myth, and it is a fine myth that has helped the Bush administration to appease right wingers with a distraction while they cheerfully surrender their most important rights, and praise the government for doing so. You have been duped so thoroughly you don't realize it. It is a sort of Conservative Stockholm Syndrome.
11.3.2008 1:47pm
The Unbeliever:
Randy R: I'm saying that if enough citizens feel that is actually happening--as opposed to being overblown rhetoric surrounding the detainment of fighters against our forces--it won't matter unless those people are sufficiently armed to prevent the government from becoming totalitarian.

I.e., you don't get to blithely paint your own doomsday scenario while mocking mine.
11.3.2008 1:49pm
Scote (mail):

cboldt (mail):

Heh. Mythical, eh? I suppose so, to those of you who have no guns to be grabbed.


Come on over and find out for yourself. You know the old saying about "assumptions," right?

I believe we need all of our rights. None of your other rights matter if you are being held without charges forever, without out access to court or council, as the Bush Administration asserts it has the universal and unilateral right to do.

And the idea that people will use their guns to protect themselves from the excesses of government is laughable. Short of nationwide armed rebellion (aka, treason) guns do nothing to protect individuals from government.
11.3.2008 1:52pm
elim:
yep, scote, that's a big concern of mine. of course, I am not over in Pakistan or Afghanistan shooting at american soldiers with an AK-47, so I am able to put it aside. the other parade of horribles-again, while I live in fear of that occurring, I think I will chance it and let my government kill and capture people trying to attack us.
11.3.2008 1:54pm
The Unbeliever:
Side note: it seems to be a common problem on the left, making a distinction between a micro case and a macro case. A single person's rights being violated do NOT justify extreme measures. The person being wrongfully detained should not put up armed resistance, but neither should our courts strike down centuries of distinction between citizens rights and foreigner's rights just to right the single wrong; cf Boudemaine.

See also (to throw a firebomb into the conversation) "my marriage isn't worth less because gay unions are no longer taboo", while ignoring the effect it has on society's stance as a whole. Or "killing all that prudish censorship on TV won't necessarily have a bad effect on the kids"--oops on that one as well.
11.3.2008 2:00pm
Doc W (mail):
Politicians lie.
Obama is a politician.
(So is McCain)

Obama's previous positions against the right to bear arms conflict with his current effort to look moderate or respectful of the Second Amendment. Once in office, with a large Democratic majority in Congress, he's in a position to do some real damage.

But, a big move against guns might be just what's needed to get the ball rolling against the Dems for the midterm elections. A repeat of '94? And Obama is a shrewd enough pol to understand that. He'll probably try to bide his time, pick a couple of Supreme Court justices, peck around the edges with "common sense" measures to keep his base. Easy does it.

Meanwhile, the natural resilience of the market economy makes him look good. He builds up a ton of political capital. Then we get a ban on carry permits or something like that, a big move against guns.

That's one scenario. Another is that the Congressional Dems go nuts from the start with anti-gun measures that Obama can't really afford to veto.

Anyway, on a separate subject, I hear PVC pipe is pretty good for hiding suff underground.
11.3.2008 2:03pm
cboldt (mail):
-- And the idea that people will use their guns to protect themselves from the excesses of government is laughable. --
.
Ergo, gun grabbing by the government is harmless. Repeal the 2nd, pass some laws, and "no difference" in the balance of power as between the people and the government.
11.3.2008 2:06pm
Scote (mail):

elim:
...I think I will chance it and let my government kill and capture people trying to attack us.


Chance it? You are citing a false dichotomy. There is no evidence that we need to give up our rights to defend the nation from outside attack.

But, as to surrendering your rights for the false promise of safety, what does the US stand for if not the values and rights in the Constitution? With out those values what makes us better than anybody else? You can't save the Constitution by destroying it, nor can you save the Republic by turning it into a Police State and a Constitutional Dictatorship.

The kind of country you propose we live in is the kind the Founders were trying to get away from, to improve upon, not to return to and cower under. This country was built in a time of war. They new the needs of security, the value of rights and the ruin of tyranny and despotism. The Constitution serves to keep us safe from the enemies outside in, including the base appeal to the false safety of despotism, which is the appeal you are using.
11.3.2008 2:07pm
Brian Mac:
Wow, nobody told me that America had turned into Saudi Arabia!
11.3.2008 2:12pm
Dilan Esper (mail) (www):
In previous career record, Obama is by far the most extreme anti-gun major party presidential nominee in American history.

Didn't Gore favor gun licensing?
11.3.2008 2:12pm
elim:
hmm, false dichotomy, eh? if detaining killers overseas is somehow the worse thing done under bush (actually, apparently the only thing as no one seems to come up with anything else), I will sleep nice and sound tonight knowing my liberties are secure.
11.3.2008 2:13pm
The Unbeliever:
(Ouch, I ignore the Preview button at my own peril. I was trying to refer to Boumediene in my last post, instead of the non-existant "Boudemaine".)
11.3.2008 2:14pm
PC:
I believe we need all of our rights.

I'm particularly concerned about what will happen with the 3rd amendment under an Obama Thugocracy.
11.3.2008 2:14pm
Scote (mail):

Brian Mac:
Wow, nobody told me that America had turned into Saudi Arabia!


We aren't likely to get that bad, but many Christians do want the US to be a theocracy where there religious convictions are law, and we have lost many of our Constitutional rights under the Bush Administration, as I have listed elsewhere in this thread.
11.3.2008 2:17pm
cboldt (mail):
-- a fine myth that has helped the Bush administration to appease right wingers with a distraction while they cheerfully surrender their most important rights --
.
The Bush administration is not friendly to the 2nd amendment. It would have signed an extension of the AWB, and its brief in Heller asked for SCOTUS to return the case to the District Court for the possibility of finding that the laws in question were reasonable. The SCOTUS decision was a defeat to the Bush administration.
11.3.2008 2:19pm
Rooj (mail):
I am confused by this notion that Obama is a radical gun control advocate.

Perhaps it was just rhetoric, but he did express agreement with the Heller decision. The only way you can come to the conclusion that he is not sincere, is to come out and just call him a liar and deliberately misleading. While i know our opinions of politicians can be low, i don't think pointing out past positions on a variety of state legislative bills does much to convince people that he is "hiding" a radical agenda, or that he doesn't mean what he says.

Yes, the rhetoric doesn't have a whole of meat. But, as President, his ability to control guns is limited. SCOTUS now recognizes a 2nd amendment right, but went out of its way to not touch the current federal gun controls. The action on this issue so to speak will be in the States, and his influence there will be limited.

If you love your gun, an Obama presidency won't affect you much. If you hate guns and want them off your streets, sadly, i don't think obama's presidency is going to do much there either.
11.3.2008 2:27pm
cboldt (mail):
-- we have lost many of our Constitutional rights under the Bush Administration, as I have listed elsewhere in this thread. --
.
You cited erosion of the 4th amendment (freedom from unreasonable search), and also stated "You can be arrested and held forever without cause, trial or council, and tortured. And that's just a start."
.
Assuming the arrest, held and tortured part is accurate, I'd say it represents more than just a start. And, as you noted above, resistance using force is futile because the force enabled by the 2nd is no help against government abuse.
.
Will you trust the government if Obama takes the helm? Will the NSA be unplugged from the grid? Will warrantless searches cease? Will the lost rights be restored?
11.3.2008 2:29pm
The Unbeliever:
I believe we need all of our rights.

I'm particularly concerned about what will happen with the 3rd amendment under an Obama Thugocracy.
Laugh if you want, but the 3rd provides a critical assumption in a time where the National Guard and various military units are deployed to provide emergency relief in flood and hurricane disaster areas. The fact that no one even considers quartering in private residences is a feature, not a coincidence.

To put it in a way familiar to those here: the 3rd has provided an important protection for 200+ years without the need for a Heller-type decision to define what we consider to be a very basic right. The lack of an explicit Supreme Court sanction did not mean said right has been non-existant.

In short: yes, we do need all of our rights.

(And I bet you didn't expect to wake up and read a passionate defense of the 3rd Amendment today!)
11.3.2008 2:30pm
Brian Mac:

2/3's of the US population lives in a "constitution freezone" within 100 miles of the border or coast, where the DHS can detain and search you without cause. You can be arrested and held forever without cause, trial or council, and tortured.

I don't follow constitutional issues at all closely, but I've always put those sorts of claims down to hyperbole. Haven't enemy combatants, including US citizens, always been treated as they are now? As for the 'constitution free zone,' never heard of that before - any links?
11.3.2008 2:31pm
Al Maviva:
I'm with Scote, we don't have enough freedom any more. So I'm going to vote for the guy who promises to take more of my money than the govt already takes, to regulate my business more than it's regulated, and who refuses to oppose congressional efforts to legislate a new fairness doctrine, under which the government will dictate the news that is reported to us by the media.

The point being Republicans aren't perfect libertarians, so you need to vote for Obama. He may be hostile to any and everything libertarian, but at least he's charming and well thought of. Makes perfect sense to me, and I think Doug Kmiec is making pretty much the same argument.
11.3.2008 2:33pm
Sarcastro (www):
The Unbeliever

Do the 9th now! Do the 9th!
11.3.2008 2:34pm
James Gibson (mail):
As usual, I can always see how ignorant people are by reading some of these responses. Comments ranging from that the NFA is unconstitutional because a short barrelled shotgun is a standard military arm, to this site is right wing since everything in it is anti-Obama.

The only comments worth noting is that the Ultra-liberal Dems seem to have forgotten how they took back the Congress and Senate. Even if they get a fillibuster proof majority in the senate they will find the Blue dogs and even other Liberals unwilling to jump to their whip on firearms. John Murtha, who is no Blue dog, is also no friend of the gun control movement. And there are others.

But lets talk about the other ideas floated. Passage of an Assault weapon ban with confiscation. Right now McCartney's bill- without confiscation- can only muster 67 sponsors out of 233 democratic members. Add confiscation and you can bet the number will drop further. Have Congress realize that the gun control movement snuck on the M1A and the M1 garand and that the M1 carbine adds close to 6 million guns to the ban and the numbers for that bill will start to fade. Add a prohibition on firearms that can penetrate a Police vest or a ban on all guns with bores greater then 0.450 inches (black powders and shotguns) and the possibility of getting it passed vanishes. Not that the gun control movement won't try and talk Obama into backing it. But Congress will simply throw it back and blame Obama for it.

As for the other ideas, like reducing FFL licenses by increasing the cost (as was done in the Clinton Administration). The majority of those put out of the business was the ammunition makers. As a result Police departments have been having to order Ammo months in advance.

Then there is the putting out of business of Public and Police ranges to make it more difficult for civilians to practice with there guns. The result, more Police are squeezed into fewer Police ranges and have to travel further to get their practice. Costs of training is going up and the quality of training is going down. National Guard units, who use the public ranges since they are barred from using the Police only ranges have also been effected by these closures.

Putting manufacturers out of business with lawsuits. Ted Kennedy may have said on the Senate floor that that was never the case, but gun controlists after the shield law was passed admitted that six gun makers in california were put out of business and they had others in their sights. These manufacturers supplied guns not only for the public but for off duty and under cover officers (small handguns). To cover-up this fact, the gun control movement is pushing for a federal ban on off duty, retired, and under cover officers carrying arms. With the Heller dissent of Justice Breyer the gun-controlists have already got the court primed to uphold such a ban against the Police. And with Section C of Silveria Vs Lockyer, if the Congress gives retired Police unlimited access to Assault weapons (as planned in HR1022) the movement will shut it down in the court. So much for the friendly relations between the Police and the gun-control movement.

Don't get me wrong, I expect the gun control movement to push Obama into some gun control measure or another. I just also expect that they will not tell him the whole story on the impact. Obama will get the blame if it fails in Congress, or, if it passes, to be blamed by Congress for its side-effects. So, as some have suggested, if he turns out to be just a smart politicians who's views change with the base that elects him, he'll mellow on guns. But if he doesn't, he will be only a one term president.

Oh, and in regard to the Obama bashing, if you think this is bad wait until he is inaugurated. All the MSM networks are gearing up to bash Obama for the next four years. As they say, sex and scandal sells, and no one will be watching a network that seems to be just a cheer-leader for the party in power.
11.3.2008 2:35pm
Sarcastro (www):

Refuses to oppose congressional efforts to legislate a new fairness doctrine.


The best part about this was how much proof you supplied!

how soon you forget.
11.3.2008 2:39pm
cboldt (mail):
-- Comments ranging from that the NFA is unconstitutional because a short barrelled shotgun is a standard military arm ... --
.
James, James, James ... that's not at all what I said. I paraphrased the Miller case, accurately. It wasn't ME who said the NFA would be unconstitutional in light of the 2nd, that was the conclusion of a federal court, set aside by SCOTUS for want of evidence. If the evidence described by SCOTUS had been in the record, the district court decision would have stood.
.
That you transformed "NFA is unconstitutional IF ..." into "NFA is unconstitutional because ..." tells me that either your reasoning skills suck, or you are inclined toward intellectual dishonesty.
11.3.2008 2:42pm
Thorley Winston (mail) (www):
Perhaps it was just rhetoric, but he did express agreement with the Heller decision. The only way you can come to the conclusion that he is not sincere, is to come out and just call him a liar and deliberately misleading. While i know our opinions of politicians can be low, i don't think pointing out past positions on a variety of state legislative bills does much to convince people that he is "hiding" a radical agenda, or that he doesn't mean what he says.


You're absolutely right, a candidate who voted for pretty much every gun control bill that he could when he was a member of his State legislature, served on the board of an organization that pushed for more stringent gun control legislation, and said that he agreed with the Washington DC gun ban before the SCOTUS decision should be taken at his word when he later says that he actually agreed with the SCOTUS decision overturning the ban.

I don't dispute that Barack Obama may be a liar and deliberately misleads people but in fairness there seem to be an awful lot of people supporting him who want to be deceived to the point where they are willing to ignore pretty much anything and everything he has said or done that may conflict with what he's saying now that he's running for President.
11.3.2008 2:47pm
Bill2:

If the more liberal faction of the democratic party tries to pass some sort of radical gun law, I'd fully expect the republicans to fillibuster.


The original (1994) AWB recieved 43 no votes in the Senate - more than enough to sustain a filibuster. Yet no filibuster occurred. Just three (or more) Senators who didn't really object to it but came from reddish states voted against as a CYA measure. I'd expect the same thing this time around.


Meanwhile, the natural resilience of the market economy makes him look good. He builds up a ton of political capital. Then we get a ban on carry permits or something like that, a big move against guns.


This, on the other hand, I would not expect. 36 states today have "shall issue" concealed carry laws (plus Vermont where no license is required), and 48 have some sort of provision for legal concealed carry. I really doubt the votes would be there to nationally preempt something a majority of states now allow.

What I would expect is further tightening of the screws on manufacturers, importers and dealers through various means - bureaucratic reinterprtation of existing law, lawsuits, rationing, killing gun shows, ammunition taxes, etc...
11.3.2008 2:47pm
The Unbeliever:
Sarcastro: sorry, I like to save my energy for the really obscure Constitutional areas. The 9th is just too plain-written and applies too broadly for anyone to be ignorant of its continuing relevance. (Kind of like the 2nd, now that you mention it.)

But if you'd like to hear my pitch for repealing the 17th Amendment...
11.3.2008 2:51pm
cboldt (mail):
-- plus Vermont where no license is required --
.
Vermont and Alaska, IIRC.
.
I agree that a federal ban on licensed concealed carry is unlikely, but I foresee an action similar to FFL and drivers licenses, in the long run, where the feds impose a certain set of standard minimum requirements are gradually thin out the ranks.
.
I can also imagine a crisis being used to whip up a public frenzy to repeal the 2nd, after which the government would implement an Aussie or UK style confiscation. As a population, the US citizenry lacks the sort of fierce independence that the Swiss have.
11.3.2008 2:55pm
rarango (mail):
I for one wish this interminable campaign was over and Joe Biden is one heartbeat away from the presidency of the United States.
11.3.2008 2:56pm
Sarcastro (www):
[The Unbeliever I actually am oddly fascinated about the effects of repealing the 17th, to tell you the truth.]
11.3.2008 2:56pm
josh:
"In previous career record, Obama is by far the most extreme anti-gun major party presidential nominee in American history. Regarding the Second Amendment, Obama's radical opposition to traditional American rights, combined with his vacuous rhetoric designed to mask his radicalism, is consistent with the Stanley Kurtz's analysis of Obama as a man of the far left."

Wow.

Just, wow.

Haven't had a chance to give my thanks to Kopel yet, since I've been focusing on Bernstein's Ayersaphelia of late.

So, as an ardent Obama supporter, thank you for this exaggerated, over-the-top, and entirely nuance-free commentary about Obama. Keep it up 'til the polls close.

Thank you.
11.3.2008 2:57pm
Passerby:
So, I read the underlying article...

As a bird hunter, I'm surprised about the double barrel shotgun reference. I gave a quick glance to the statutes cited, and did not see double barrels barred. Perhaps someone can point me in the right direction?
11.3.2008 2:58pm
cboldt (mail):
-- The 9th is just too plain-written and applies too broadly for anyone to be ignorant of its continuing relevance. --
.
The 9th is amenable to a variety of interpretation that is similar to the "it's just a truism" analysis of the 10th. IOW, the 9th can be construed in such a way that it lacks all power.
11.3.2008 2:59pm
Scote (mail):

cboldt (mail):
...
Will you trust the government if Obama takes the helm? Will the NSA be unplugged from the grid? Will warrantless searches cease? Will the lost rights be restored?


We must always remain vigilant to protect freedom. I don't think things will magically improve under an Obama presidency, but I do think a change in Administration will help staunch the exanguination of our constitutional rights, whereas I think a McCain administration would be more of the same and that Palin has made it clear she is an enemy of transparency and open government and a Cheney style expansionist in terms of extraconstitutional VP power.
11.3.2008 3:12pm
Doc W (mail):

I really doubt the votes would be there to nationally preempt something a majority of states now allow.

I hope you're right. Then again, I seem to recall that a lot of states (and an increasing number) allowed 18-20 years olds to consume alcohol before the feds imposed the 21 law nationwide.

The anti-gun movement has met with a strong, determined, well-organized opposition. THAT'S what makes major new restrictions seem unlikely. If gun ownership becomes sufficiently discouraged, if the political support for the Second Amendment fades, Heller can be all but erased.
11.3.2008 3:15pm
elim:
josh-is that what passes for insightful commentary? is there some pro-gun moderate position that BHO took in the past that was left out by Kopel's commentary that you can enlighten us on? if you are such an ardent proponent, perhaps you can address the substance of the post. you'll look less ignorant if you can do that.
11.3.2008 3:15pm
cboldt (mail):
-- I gave a quick glance to the statutes cited, and did not see double barrels barred. Perhaps someone can point me in the right direction? --
.
Illinois legislature, SB 1195, 2003. I don't see it either. I think it takes a certain strained construction to reach that result.
11.3.2008 3:16pm
Bill2:

I can also imagine a crisis being used to whip up a public frenzy to repeal the 2nd, after which the government would implement an Aussie or UK style confiscation.


I think this would be politically impossible even in a crisis. It's hard to imagine a crisis which would break that way. Meanwhile, you'd need a 2/3 majority in both houses of Congress to start with, then ratification by the legislatures of 3/4 of the states. This is virtually impossible for anythng that is even romotely controversial.

Rather, I'd look for the 2nd to simply be gutted judicially. About the only thing Heller really guarantees is some sort of handgun for home defense, and then only at the Federal level. A slight shift in the balance of the court and there's a lot of room for upholding just about anything you can imagine as long as no Federal entity is totally banning handguns. As an extreme, I can imagine handguns limited to low-powered long-barreled revolvers under a regulatory system similar to that applying to machineguns today, with taxes on both weapon and ammunition that are effectively prohibitive to middle class or below citizen, and everything else banned outright - but we will not have overturned Heller ;-)
11.3.2008 3:18pm
SeaDrive:

Gun control is like abortion--the appropriate answer is some regulation but no prohibition, but because of the extreme positions on both sides there is no chance of getting any regulation, even the most basic and common sense, without starting down a very slippery slope toward prohibition. As a result all the good policies are politically impossible, and you wind up with one or another party sounding like hypocrites.


Given that gun laws are not very successful at reducing gun violence, I should think that at least a little time and energy might be put into finding programs that make both sides happy, rather than choosing between two positions neither of which works very well.
11.3.2008 3:19pm
Fury:
Randy R.

Of course, his first legislative act will be to ban the production and eating of any pies that contain apples in them. Especially if they are baked by moms.

As long as he exempts elderberry pies, I'm ok with this.

"Apple pies don't kill people, moms baking apple pies kill people."
11.3.2008 3:19pm
Passerby:
I'm pretty sure that double barrels ARE NOT covered by that statute. Perhaps Mr. Kopel would care to weigh in? Maybe he is mistaken in thinking a double barrel gun is a revolving barrel (it isn't) or a semi-automatic (nope).

Perhaps Mr. Kopel would like to revise his editorial if this is found to be untrue?
11.3.2008 3:20pm
Passerby:
I only stress the need to revise b/c unlike some of the weapons mentioned in the bills, double barreled shotguns are routinely used for legitimate hunting (hell, I just used a double barrel 16 gauge a couple weekends ago).

Suggesting that Obama wants to ban hunting guns seems pretty far off (especially since the shotgun aspects discuss guns that hold more than 5 rounds, which in most states would have to be plugged to be used for hunting anyways).


[DK: Read the text of the bill as applied to guns with a barrel diameter of 1/2 inch or greater. This includes almost all shotguns. The bill bans all such guns, and then has certain exemptions. These exemptions do not cover the shotguns I listed in my article.]
11.3.2008 3:23pm
The Unbeliever:
IOW, the 9th can be construed in such a way that it lacks all power.
Just like the 2nd.

I suppose my unstated assumption was that it takes a certain willful blockheadedness to do so with either Amendment, and I leave it to the professionals to deal with such silliness.
11.3.2008 3:24pm
Dan M.:
I'll just come right out and say it: Obama is a liar.
11.3.2008 3:25pm
Sarcastro (www):
I'll just come right out and say it: Dan M. is a liar.
11.3.2008 3:29pm
Bill2:

IOW, the 9th can be construed in such a way that it lacks all power.

Just like the 2nd.

I suppose my unstated assumption was that it takes a certain willful blockheadedness to do so with either Amendment, and I leave it to the professionals to deal with such silliness.


I trust you realize that the 2nd nearly was, but for the whim of one habitual swing Justice... I don't think the opposite result would have left the professionals much to work with, and even the outcome in Heller leaves a lot of room for an essentially powerless 2nd.
11.3.2008 3:29pm
Randy R. (mail):
Unbeliever: "I.e., you don't get to blithely paint your own doomsday scenario while mocking mine."

Oh please. First, I don't see any attempt to remove all our bill of rights. But more important, even if the gov't strangely did that for no apparent reason other than a power grab, a bunch of men with guns is no match for the US military. You may recall that in the American Revolution, men with guns were the first ones to defend us against the Brits, and they were the first ones to leave once the fighting got tough. George Washington himself said that these men who had guns were pretty much worthless in the fight for liberty. So I'm not holding out any hopes of you and a group of gun owners fighting it out in the streets with an organized military force.

As for your quote of Mickey Kaus' article stating that marriage is 'dead' where ever gay marriage has been implemented, even he was forced to admit that is isn't true. In fact, in the places were gay marriage has been instituted, which includes Spain, Belgium, The Netherlands, Canada, S. Africa and Massachusetts, marriage have held steady, and in fact as higher than in other European countries. When confronted with that fact, Kaus was unable to explain it and eventually just gave up his argument.
11.3.2008 3:37pm
commontheme (mail):
Do you really expect anyone to take any of your posts seriously when you post things like this:


Full Picture of Obama Emerging. Aug. 27. What the media hasn't told you about the socialist, racialist, Barack Obama Sr. Plus bogus claim from Time that older Jewish voters who don't back Obama must be racist.

on your website?

I mean, someone who is writing about Obama's long-dead father is pretty obviously a nutter.

You have zero credibility. Zero.
11.3.2008 3:39pm
Randy R. (mail):
This election sure brings out the wackos! Obama isn't even elected, and yet the nutcases are totally convinced that Obama has a secret plan for suspending the Constitution, forcing us all into slavery to the Iraqis, detroying all the wealth of the country and taking away all your guns. Oh, and on the plus side, he will force everyone to get divorced and marry their farm animals.

I'm not sure where all this hatred and bizarre behavior originated, but I hope for the sake of the country these people fade away pretty darn quickly. Few people ever agree with any presidential candidate on all the issues, but make people out to be a monster is going a bit far. I don't know McCAin, and I like Bush even less. (Cheney is in the basement as far as I'm concerned). But I never got unhinged like Unbeliever and cohorts have done. Please, get a grip!
11.3.2008 3:42pm
cboldt (mail):
I'll hazarda guess on how double barrel shotguns with a bore over 0.50 inch come in the scope of the ban proposed by the Illinois state legislature:

(b) Definitions. In this Section:
(1) "Semi-automatic assault weapon" means: ...
(x) any firearm having a caliber of 50 or greater;

.
followed by absence of specific mention in ...
"Semiautomatic assault weapon" does not include:
(A) any firearm that:
(i) is manually operated by bolt, pump, lever or slide action;
(ii) is an "unserviceable firearm" or has been made permanently inoperable; or
(iii) is an antique firearm; or ...
(C) any semiautomatic shotgun that cannot hold more than 5 rounds of ammunition in a fixed or detachable magazine.

.
A literal parsing includes single shot and break action shotguns > 0.50 inch bore.
11.3.2008 3:48pm
Bill2:

As a bird hunter, I'm surprised about the double barrel shotgun reference. I gave a quick glance to the statutes cited, and did not see double barrels barred. Perhaps someone can point me in the right direction?


From the bill that cboldt conveniently linked to, in the definitions section...

(1) "Semi-automatic assault weapon" means:
(A) any of the firearms or types, replicas, or duplicates in any caliber of the firearms, known as:
...snip...
(x) any firearm having a caliber of 50 or greater

The bill goes on to ban possession of the firearms so defined, with no grandfathering for examples already possessed.

Note that it reads "firearm", not "rifle".

Note that is doesn't specify the type of action, just "any firearm having a caliber of 50 or greater".

A 12 guage shotgun is caliber .729
A 16 guage shotgun is caliber .663
A 20 guage shotgun is caliber .615

The only popular or common shotgun guage unaffected is the .410, and it isn't that popular.

Therefore, as written, this bill does indeed ban most modern double-barrelled shotguns, as well as single-shots or any other action type - except .410's.

Of course, it is entirely possible that most of the politicians supporting the bill didn't understand it, since most anti-gunners are pretty ignorat of the technical details. That wouldn't stop an anti-gun bureaucrat from enforcing it as written, though.

Whether the "loophole" is there due to some legislative staffer's incompetence or a trojan horse by some anti-gun organization that helped draft the legislation is also another question.
11.3.2008 3:56pm
cboldt (mail):
-- this bill does indeed ban most modern double-barrelled shotguns, as well as single-shots or any other action type - except .410's. --
.
Bolt, pump, lever and slide action (I'll have to look up the difference between "pump" and "slide") firearms are excluded from the definition of "Semi-automatic assault weapon," and IIRC, there are a number of bolt action single shot shotguns. I don't know where falling block fits into this scheme. At any rate, some single shot shotguns over 0.50 bore would remain legal.
.
I think the loophole is due to incompetence, but agree completely, it would enforced to the letter of the law.
11.3.2008 4:02pm
einhverfr (mail) (www):
Asher:

Actually, if you carefully read earlier 2nd amendment jurisprudence (including Miller) you will see that an individual right to own a gun free from federal bans is implicit in these rulings. The ideas that state and local governments (excluding DC, which is directly ruled by Congress) an pass additional bans also appears to be a part of settled law, AFAICS (IANAL, etc).

My only concern about Obama regarding civil liberties is about this issue. We will see where he goes with it.

However, I think McCain has shown himself to be far more opposed to traditional American freedoms on the whole than Obama.....
11.3.2008 4:05pm
cboldt (mail):
-- My only concern about Obama regarding civil liberties is about this issue. --
.
Even though his support of the recent FISA revision is indistinguishable from McCain's?
11.3.2008 4:09pm
einhverfr (mail) (www):
Interestingly, my reading of Miller seems to leave open the question of whether possession of stinger missiles would indeed be protected by the 2nd Amendment. The ruling in Miller, by my reading, addresses what kinds of weapons could be regulated and why (namely the Second Amendment seems to be limited to weapons which would typically be useful to a militia-- so things like nuclear demolition munitions need not be unregulated).
11.3.2008 4:09pm
Bill2:

Bolt, pump, lever and slide action (I'll have to look up the difference between "pump" and "slide") firearms are excluded from the definition of "Semi-automatic assault weapon," and IIRC, there are a number of bolt action single shot shotguns.


My bad - missed the exclusion. Unfortunately, as you say, it doesn't exclude break-opens.
11.3.2008 4:09pm
Rooj (mail):
Let me defend what i said before.

First of all, i DO think Obama is for gun control. But, I'll let you in on a little secret. Being pro-gun control does not mean you don't believe in some form of an individual right to bear arms. Obama's statement following Heller was NOT that Heller was correctly decided, but rather that he does think the text of the 2nd amendment supports a reading that there is an individual right to bear arms. Obviously this puts him at odds with a good number of constitutional law scholars.

If you think that gun control is the number 1 issue most important issue to you, than obviously Obama is probably not the right man. But. i don't think he is selling himself to the electorate as a spokesperson to the NRA.

But, casting Obama as the Demon of Banning Firearms, is just inaccurate. He does believe in a constitutional right for individuals to own guns. But he also believes in strong gun control. Very few rights, even constitutional rights are immune from limitations and controls. The First, the 4th, the 5th, even the 6th, from his "empty" rhetoric he tends to even hint at less interference from the feds on the issue. He argues that gun policy has to be sensitive to regionally specific needs.

The main thrust of the article seems to be two specific charges.

1) Obama is a radical pro-gun control politician. While i believe he is most definitely pro gun control, he has expressed at least an acknowledgment that the 2nd amendment has teeth with individual rights.

But i find this charge sort of irrelevant. One reason gun control as an issue hasn't gained too much ground, is cause SCOTUS already had the first shot. The other aspects of the battle (as pointed out by Obama's own voting record) will be in State Legislatures anyhow. Yes, i know everyone wants to have a President that shares all their views on everything. But, when it comes to pragmatics, a McCain President vs Obama presidency is going to mean little when it comes to guns.

2) The second and more frustrating charge is that Obama is somehow being misleading and dishonest. I find no evidence of this deception when it comes to guns. The article cites to Obama's attempt to convince people with empty rhetoric, but doesn't do a good job in detailing what the rhetoric is. If this is a reference to what he said after Heller, then while i am sure he was careful with what he said, it is not to me, a misrepresentation of his views.

And of course, most head scratching, how does pointing to his past legislative history paint him as being dishonest? He has been consistent with his policies, and after Heller, he has tried to explain them in context with what i believe is an honest declaration of what he believes. Nothing in the article gives evidence of misrepresentation or lying.

In fact, it was his defense of Heller that sparked outrage on the Left, (remember this was primary season after all) and he had to try and put forth why an individual right for guns does not mean the death of gun control.

Sorry, if this article was attempting whatsoever to persuade, i find it lacking. I, among other readers, detect more than a little attempt to try and rouse the commentary and add to the noise and din, without even a minor attempt of persuasion.
11.3.2008 4:09pm
josh:
Elim

"josh-is that what passes for insightful commentary? is there some pro-gun moderate position that BHO took in the past that was left out by Kopel's commentary that you can enlighten us on? if you are such an ardent proponent, perhaps you can address the substance of the post. you'll look less ignorant if you can do that."

I wasn't commenting, really. I was thanking. But to the extent I was, here's Obama's response to the ruling in DC v. Heller:

""I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today's ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe."

Now, of course, some might not believe Obama when he makes these statements, just as they don't believe he was born in Hawaii, or is a Christian, or does not, in fact have horns. But, the above statement does sound somewhat moderate to me (supporting 2nd A right to gun ownership with reasonable regulations), and not like the radical, Marxist, baby-stealing crazy man that Kopel is trying to paint Obama as.

But, again, you missed my point. I was THANKING Kopel for his lunacy, as polls have repeatedly showed it does nothing but help Obama.
11.3.2008 4:10pm
Ed Scott (mail):
We gun owners bitterly clinging to our firearms have little to worry about from the One. We will all be members of O'Bama's Civilian Army.

In a little if not ever publicized Part of a Barack Obama speech in Colorado on July 2, 2008 Obama called for the formation of a civilian army to rival the U.S. Military. The Obama Campaign doesn't have this speech on it's website nor a transcript of it. I wonder why?

http://www.youtube.com/watch?v=igDoHZ0hVUY
11.3.2008 4:10pm
einhverfr (mail) (www):
cboldt:

No, his support of FISA was not indistinguishable from McCain. The difference is that, although Obama voted for the fake compromise (in the House version), he continually voted against any other attempt at telecom immunity. McCain voted for telecom immunity in every form.
11.3.2008 4:11pm
Richard Aubrey (mail):
Jeez. I love/hate to see my predictions coming true.
This post has morphed from he-won't-ban'em to what's-wrong-with-banning-anyway.
No "oops" in the middle, either.
11.3.2008 4:13pm
elim:
Blago expounded on the dangers of, I believe, Barrett sniper rifles, a common firearm used in street crime with a caliber of .50. You could shoot from downtown chicago and hit someone at Wrigley field according to honest Rod. the fact that such a rifle has probably never been used in a crime never crossed the mind of a person as malignantly stupid as Blago. The wording of the statute stinks-however, no guns over .50 means no guns over .50. you might win on appeal or with an honest judge on the issue of statutory interpretation-of course, you might also end up in the joint where you can argue statutory interpretation with your cellie.
11.3.2008 4:15pm
Passerby:
I guess if you want to go that far...but shotguns are almost always measured by gauge, not caliber (the calibers are equivalents).

Thanks for the info. I guess this could have been made more clear in the post (that the bill might have been worded so poorly as to allow such an interpretation).

Although, if we are getting this technical, probably no guns I know about qualify as "over 50 caliber." Perhaps "over .50 caliber"? Again, an all around poorly drafted law.
11.3.2008 4:16pm
The Unbeliever:
Oh please. First, I don't see any attempt to remove all our bill of rights.
Good. Kindly inform the rest of your fellow travelers that the Bush Administration is not, in fact, storming the National Archives with a shredder and a Zippo.

Or at least stop the inane arguments that we shouldn't care so much about 2A infringements just because you care more about 5A infringements.
But more important, even if the gov't strangely did that for no apparent reason other than a power grab, a bunch of men with guns is no match for the US military.
So you think it would be better in that scenario for everyone to be unarmed, to just roll over and accept the new totalitarian state? You can't see a point in resistance, or you don't like the odds, so there must necessarily be no point?

You greatly overestimate the ability of the federal government to wage a war against its own populace. In the doomsday scenario we all hope will never happen, an armed populace prevents the government from having a total monopoly on the legitimate use of force; and a government that lacks that monopoly is in trouble, often on the road to "failed state" status.

Doomsday scenarios aren't fun to contemplate. That doesn't make doomsday safeguards any less important. (And that's true whether we're talking a power-mad federal government or a nuclear war or a natural disaster which wipes out Washington DC, and the preventive steps in place for each one.)
11.3.2008 4:17pm
einhverfr (mail) (www):
Just another note about FISA....

The way it is supposed to work is that the government can spy on foreign nationals and then pass that information off to intelligence agencies. These wiretaps are then supposed to be discarded in all areas relating to prosecution of US pesons. You aren't even supposed to be able to get a search warrant based on what one learns from such a conversation.

The fact is, as soon as you are off US soil anyway, the NSA could be picking up your cell phone calls, etc. This is what they do. So on the whole, the idea isn't that different from what already is done by the US government overseas.

The problem with the current uses of the FISA is that after 9/11, some of the walls that are supposed to protect our civil liberties have become more porous, and search warrants *have* been issued based on intelligence gathered by the government in these issues.

IMO, the simple solution is to shore up those walls and make darn sure the NSA, CIA, etc. cannot pass any information of any type over to the FBI, etc until after there is a specific warrant issued for specific records based on probable cause by a civil court.
11.3.2008 4:17pm
Bill2:

the fact that such a rifle has probably never been used in a crime never crossed the mind of a person as malignantly stupid as Blago.


The "asault weapon" thing has never been about crime. Rifles of any sort hardly make a blip in the crime statistics. It is about incrementalism.
11.3.2008 4:18pm
cboldt (mail):
-- The second and more frustrating charge is that Obama is somehow being misleading and dishonest. I find no evidence of this deception when it comes to guns. --
.
Before Heller, he said the DC law represented a reasonable restriction. That's "deceptive" on its face, by making a mockery of the notion of "reasonable restriction." It's not a ban, it's a reasonable restriction. Now, I can see where an Obama defender would recoil at this sort of statement being called "deceptive." Fine by me. I'm making up my own mind anyway, and as far as I'm concerned, the DC law prohibiting a person from possessing a handgun in their home was never a reasonable restriction.
.
He's also deceptive by trying to make people believe he's always found the DC ban unreasonable - as SCOTUS recently held.
11.3.2008 4:20pm
elim:
wow, just wow, bill2. as an ardent obama supporter, I just say wow. I have nothing else to offer of substance but my wow. you are so over the top. have I said just wow?
11.3.2008 4:21pm
einhverfr (mail) (www):
Passerby.... Maybe it just bans those big guns on battleships?
11.3.2008 4:21pm
josh:
Elim:

?????
11.3.2008 4:27pm
cboldt (mail):
-- No, his support of FISA was not indistinguishable from McCain. The difference is that, although Obama voted for the fake compromise (in the House version), he continually voted against any other attempt at telecom immunity. McCain voted for telecom immunity in every form. --
.
They were both absent for most of the voting, and they both voted "AYE" on a bill that provided statutory immunity against civil claims. When the rubber met the road, passing the bill (with a "get out of court" card for the telecoms), they were in the same bed.
.
Notice I'm not defending passage of the law - my point is that favoring Obama can't hinge in part on contrasting him with McCain on FISA and the privacy interests represented therein.
11.3.2008 4:30pm
elim:
I just wanted to sound like a vapid, but ardent, obama supporter, so I subtracted substance and just put forth wows. sound familiar.
11.3.2008 4:30pm
Sarcastro (www):
[elim I lol'ed.]
11.3.2008 4:37pm
josh:
elim

Nice snark I guess, but I thought I put forth substance to your critique. No matter how radical Kopel (or you?) try to cast Obama or his supporters, his statement about Heller (supporting 2nd A right to handgun in the house for protection with attendant reasonable regulations) is hardly radical.

But, hey. Like I said, keep the snark coming. One more day to boost the spread.
11.3.2008 4:40pm
Melancton Smith:

Perhaps it was just rhetoric, but he did express agreement with the Heller decision. The only way you can come to the conclusion that he is not sincere, is to come out and just call him a liar and deliberately misleading. While i know our opinions of politicians can be low, i don't think pointing out past positions on a variety of state legislative bills does much to convince people that he is "hiding" a radical agenda, or that he doesn't mean what he says.


I guessed you missed his commentary prior to the Heller ruling where he stated that DC's laws were Constitutional.

We have all missed the new Obama's statements to Daley that Chicago's laws are unconstitutional..probably for the reason that he has not said them.

He continues to allow some of his own constituents live under the same law that was overturned in DC and has yet to come to their aid.

I think it is more like you want to believe that he doesn't want to take your guns.
11.3.2008 4:48pm
pmorem (mail):
What scares me most about Obama isn't Obama himself.
His patterns I find disturbing, yes. His positions are troubling, yes.

What really scares me is his supporters, and their apparent stance on dissent.

They are doing as he asked, and "getting in people's faces".

This could go very badly. I'm not saying it will. Only that it could.

Many of his supporters seem untroubled by that prospect. That troubles me even more.

In my line of work, people not fretting about what can go wrong is usually an indication that things are about to go horribly astray. "Horribly astray" tends to involve dead people.
11.3.2008 4:53pm
Melancton Smith:
Oh please. First, I don't see any attempt to remove all our bill of rights. But more important, even if the gov't strangely did that for no apparent reason other than a

power grab, a bunch of men with guns is no match for the US military. You may recall that in the American Revolution, men with guns were the first ones to defend us against the Brits, and they were the first ones to leave once the fighting got tough. George Washington himself said that these men who had guns were pretty much worthless in the fight for liberty. So I'm not holding out any hopes of you and a group of gun owners fighting it out in the streets with an organized military force.


Probably you don't understand how an insurgency works.
11.3.2008 5:02pm
Randy R. (mail):
I would think that any military take over of the country would include the ability to use nuclear arms. If any group exhibits such lunacy as to take over the federal gov't, they would also exhibit a lunacy to win at all costs, which would mean a nuclear bomb.

Perhaps I'm naive, but I believe a nuclear weapon would pretty much melt any guns you might be holding.

Look, I'm not against the populace owning guns. What I think is bizarre is this rather romantic notion that your average citizen who owns guns will come to the aid of his fellow citizen and fight a well organized military. Perhaps they will, (I am often wrong), but I'm not willing to bet the country's future upon it, nor my life.

If there were even a slim possiblity that we will have a military takeoever anytime soon, we can discuss this nightmare scenario and prepare for it. But there is no evidence whatsoever of a military coup in the offing. "Extraordinary claims require extraordinary evidence." Simply assuming Obama will do so in the absence of any support or evidence is simply navel-gazing at it's finest.
11.3.2008 5:25pm
commontheme (mail):


In my line of work, people not fretting about what can go wrong is usually an indication that things are about to go horribly astray. "Horribly astray" tends to involve dead people.

Where you been the past 8 years with all of this insight?

Hmmmm?
11.3.2008 5:34pm
einhverfr (mail) (www):
Randy R.

No, that would never work (citizens militias fighting against the most powerful army in the world). Not that it worked in Iraq or anything.....

Interestingly, the difficulties faced by our forces in Iraq (particularly prior to the political reforms which happened at the same time as the surge) show exactly why the 2nd Amendment does provide some guarantee against tyranny.
11.3.2008 5:34pm
whit:

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe."




thanks for helping support the idea that obama does not support the 2nd amendment (not your intent i know).

"I know that what works in Chicago may not work in Cheyenne"

Imagine if he made the same statement about the 1st, 4th, or 5th amendment. This "constitutional scholar" would not DARE espouse the idea that these other constitutional rights should be modified and protected to a different extent based on where you LIVE.

"what works". The 4th and 5th frequently "work" to get guilty people off scot free. But we ACCEPT that we don't throw away these constitutional rights to ensure that more guilty people get convicted. But in the case of the 2nd, people like obama feel free to use any shooting to espouse the idea that eroding the 2nd is perfectly ok as long as we are in "chicago not cheyenne".

Note also the soft bigotry (so common among 2nd amendment opponents). it's long been a mantra of the left that when people refer to "urban" problems (e.g. chicago) that this is really a code for minorities, among racists that are too smart to refer to race. But in referring to the 2nd amendment, this soft bigotry means that in obama's eyes it's ok to recognize LESS constitutional rights (in regards to the 2nd) when it comes to "urban" people. whites (who dominate cheyenne last i checked) should have MORE 2nd amendment rights than chicago'ans (which has a much higher minority population). that's "ok" with this constitutional scholar. can you imagine arguing that a chicago resident should have a lesser expectation of privcay vs. a cheyenne resident?, less of a right to counsel?, etc? of course not.

whatever you think of obama, one thing is clear (over and over again) - he does not support 2nd amendment rights.
11.3.2008 5:35pm
pmorem (mail):
Randy R, you very thoroughly demolished a strawman. Try a real argument some time.

I don't think military coup is a risk. It's not any part of my basis for supporting the second amendment. I don't think very many (if any) of the second amendment supporters in this thread are really concerned about it.
11.3.2008 5:39pm
cboldt (mail):
-- What I think is bizarre is this rather romantic notion that your average citizen who owns guns will come to the aid of his fellow citizen and fight a well organized military. --
.
See Warsaw Uprising.
.
If the US gov't nukes some US city, the un-nuked citizens would become un-hinged, afraid, and un-trusting of "their" government.
.
Even heavy bombardment well short of nuke will set off alarm bells that "the government is dangerous," even among some liberals who think governments are not dangerous (if liberals are in power).
.
All that's a pretty far stretch - my sense on this issue is informed by a simple test. If a person who asks to have power over the public via government office, doesn't trust the public with guns (and I take a call for registration as unreasonable), then I will reject that person just because of their expressed distrust of the public. If they don't trust the public, then I don't trust them. Simple, reliable.
11.3.2008 5:45pm
Light Hearted (mail):
Randy R: "First, I don't see any attempt to remove all our bill of rights"

HL Mencken, 1922, "The Nature of Liberty"

Let us suppose that you are a peaceful citizen on your way home from your place of employment. A police sergeant, detecting you in a crowd, approaches you, lays his hand on your collar, and informs you that you are under arrest for killing a trolley conductor in Altoona, Pa. Amazed by the accusation, you decide hastily that the officer has lost his wits, and take to your heels. He pursues you. You continue to run. He draws his weapon and fires at you. He misses you. He fires again and fetches you in the leg. You fall and he is upon you. You prepare to resist his apparently maniacal assault. He beats you into insensibility with his espantoon, and drags you to the patrol box.

Arrived at the watch house you are locked in a room with five detectives, and for six hours they question you with subtle art. You grow angry--perhaps robbed of your customary politeness by the throbbing in your head and leg--and answer tartly. They knock you down. Having failed to wring a confession from you, they lock you in a cell, and leave you there all night. The next day you are taken to police headquarters, your photograph is made for the Rogues' Gallery, and a print is duly deposited in the section labeled "Murderers." You are then carted to jail and locked up again. There you remain until the trolley conductor's wife comes down from Altoona to identify you. She astonishes the police by saying that you are not the man. The actual murderer, it appears, was an Italian. After holding you a day or two longer, to audit your income tax returns and investigate the pre-marital chastity of your wife, they let you go.

You are naturally somewhat irritated by your experience and perhaps your wife urges you to seek redress. Well, what are your remedies? If you are a firebrand, you reach out absurdly for those of a preposterous nature: the instant jailing of the sergeant, the dismissal of the police Commissioner. But if you are a 100% American and respect the laws and institutions of your country, you send for your solicitor--and at once he shows you just how far your rights go, and where they end. You cannot cause the arrest of the sergeant, for you resisted him when he attempted to arrest you, and when you resisted him he acquired an instant right to take you by force. You cannot proceed against him for accusing you falsely, for he has a right to make summary arrests for felony, and the courts have many times decided that a public officer, so long as he cannot be charged with corruption or malice, is not liable for errors of judgment made in the execution of his sworn duty. You cannot get the detectives on the mat, for when they questioned you you were a prisoner accused of murder, and it was their duty and their right to do so. You cannot sue the turnkey at the watch house or the warden at the jail for locking you up, for they received your body, as the law says, in a lawful and regular manner, and would have been liable to penalty if they had turned you loose.

But have you no redress whatever, no rights at all? Certainly you have a right, and the courts have jealously guarded it. You have a clear right, guaranteed to you under the Constitution, to go into a court of equity and apply for a mandamus requiring the police to cease forthwith to expose your portrait in the Rogues' Gallery among the murderers. This is your inalienable right, and no man or men on earth can take it away from you. You cannot prevent them from cherishing your portrait in their secret files, but you can get an order commanding them to refrain forever from exposing it to the gaze of idle visitors, and if you introduce yourself unseen into their studio and prove that they disregarded that order, you can have them hauled into court for contempt and fined by the learned judge.

Thus the law, statute, common and case, protects the free American against injustice.
-------
Naturally, things are even better now than in 1922...
11.3.2008 5:47pm
whit:
i don't know what your point is, lighthearted.

here's a hint. if an officer approaches you (sgt or not) and says you are under arrest, you submit to the arrest.

hth

not only does running make you LOOK guilty, but resisting arrest when he finally catches up to you is a crime as well.

you have lots of rights. the rights to run from an arrest, and resist arrest/fight with the arresting officer are not among those rights.
11.3.2008 5:53pm
pmorem (mail):
commontheme wrote:

Where you been the past 8 years with all of this insight?

Hmmmm?


My comments have been scattered through the last half dozen years of Volokh Conspiracy archives, including the old archives that are no longer visible.

Sorry if you've missed it.
11.3.2008 5:54pm
einhverfr (mail) (www):
Elim.....

Not sure "conservative" is the right word, but if we accept the similarities between Bush and Clinton:

1) Pure speech in support of actions of Hamas could be considered expert advice under the 1998 Anti-Terrorism and Effective Death Penalty Act. The Bush Administration tried to use this to prosecute hyperlinking to Hamas web sites. Of course, one does have the right (under Brandenburg v. Ohio) to speak in favor (in the abstract) of domestic terrorism against blacks and Jews. "Kill the niggers... we intend to do our part... Send the Jews back to Israel...." were all portions of the speech ruled to be protected by Bradenburg, but in a different context might be illegal today (if in support of Hamas instead of the KKK).

2) The Fourth Circuit (in Padilla v. Hanft) ruling effectively denies habeas corpus to domestic citizens apprehended in the US and designated "enemy combatants" at least until another case gets brought before the Supreme Court.

3) Protection against unreasonable searches and seizures: The FISC suspended the NSA wiretapping program several times after it became clear that these wiretaps were in some cases used to get domestic search warrants. See also the total intelligence awareness projects...

4) Extraordinary rendition and the right to be free from cruel/unusual punishment (in this case torture).

Not all the news is bad though. Chief Justice Roberts wrote the unanimous decision regarding the right for religious groups to use otherwise illegal drugs (UVD v. Gonzales).

BTW, my feelings on the 2nd Amendment are simply that I am not particularly opposed to gun control as a public policy as long as the restrictions are reasonable. However, if we are shredding the Constitution because some provisions are unpopular, then none of our rights are safe, and the rule of law is damaged. I think there could easily be reasonable and Constitutional regulations and restrictions, but they need to be both. If that is unpopular, pass a Constitutional Amendment, but at least that way we can have a real national debate about the issue.
11.3.2008 5:55pm
Joel Rosenberg (mail) (www):
I'm with Hubert Humphrey on this one; the Second Amendment is one of those things that makes revolution in this country both possible and unnecessary.
11.3.2008 5:55pm
Bill2:

I think there could easily be reasonable and Constitutional regulations and restrictions, but they need to be both.


The problem is that "reasonable" is highly subjective. As someone broadly sympathetic to individual ownership of firearms for any number of legitimate (i.e. non-aggressive) purposes, and inclined to give those with a clean record the benifit of the doubt as to the purpose they have in mind, my definition of "reasonable" would be rather narrow. It would need to place no significant burden on the citizen possessing a clean record and desiring to possess whatever type of firearm he/she has a mind to. Someone who is basically frightened of firearms and suspicious of those who would choose to have one would likely define "reasonable" much more broadly. To such a person, the burden imposed on would-be firearms owners by "reasonable" regulations would be a feature rather than a bug.
11.3.2008 6:32pm
Randy R. (mail):
einhvr: "No, that would never work (citizens militias fighting against the most powerful army in the world). Not that it worked in Iraq or anything..... "

Well, if you really want to hold up Iraq as a place where people living peaceably and have all their rights because they have guns, I don't think it really works. Last time I heard, we are still occupying the country, and it is very unsafe in certain areas. The safe parts only got that way after, what, six years of insurgency? Meanwhile, how many Iraqis are dead?

Furthermore, if they actually did NOT have guns, then there would have been insurgency, and we would have pulled out years ago. So ironically, owning guns only made the situation much worse for themselves, at least in terms of number of dead and the level of violence.
11.3.2008 6:35pm
Randy R. (mail):
oops. Meant to say there would NOT have been an insurgency.....

Cbolt:"If a person who asks to have power over the public via government office, doesn't trust the public with guns (and I take a call for registration as unreasonable), then I will reject that person just because of their expressed distrust of the public. "

Perhaps you are trusting in the public's ability to own guns. I think you can trust some people, and can't trust others. Just today, a young man shot and killed a teenager on a public bus in Silver Spring, an affluetn suburb of Washington, DC. You really trust that guy with a gun? There are shootings all the time in cities and suburbs - don't forget that domestic violence often ends with someone shooting another person.

Until we figure out who can trust and who we can't (a mighty tall order, probablyi impossible), it's perfectly reasonable to know who actually owns a gun. Just in case they commit a crime.
11.3.2008 6:40pm
Randy R. (mail):
"See Warsaw Uprising. "

The jews were moved to a ghetto in Warsaw during the war by the Nazis. If they jews had been allowed to own guns, I think the Nazis probably would have taken care to make sure they didn't take any weapons with them into the ghetto. Searches were done constantly on the populace, in part for that reason. So it's a moot point, however you consider the situation because under any scenario, they would not have had guns. File this under False Romantic Notions.
11.3.2008 6:45pm
pmorem (mail):
Randy R wrote:

If they jews had been allowed to own guns, I think the Nazis probably would have taken care to make sure they didn't take any weapons with them into the ghetto. Searches were done constantly on the populace, in part for that reason. So it's a moot point, however you consider the situation because under any scenario, they would not have had guns.


Yes, that's exactly why the Second Amendment is important.
11.3.2008 7:20pm
Brett Bellmore:

Suggesting that Obama wants to ban hunting guns seems pretty far off


He wanted to use a definition of "armor piercing" for purposes of banning ammo, which would ban essentially any round capable of taking down anything larger than a squirrel. This was Kennedy's infamous bill which specifically targeted the 30.06, the classic deer round, for banning.

He wanted to ban all run stores within 5 miles of a school; Given the relative locations of schools, this would make it impossible to site a gun store in many states, and leave a few places in some of our western deserts where you could put one.

He's declared his desire to ban all "semi-automatic" firearms, that's most of the civilian arms in existence.

You have to be willfully blind to think Obama isn't a radical anti-gunner. Ok, some people are willfully blind. Please don't insist that the rest of us join you in your deliberate ignorance.
11.3.2008 7:39pm
einhverfr (mail) (www):

To put it in a way familiar to those here: the 3rd has provided an important protection for 200+ years without the need for a Heller-type decision to define what we consider to be a very basic right. The lack of an explicit Supreme Court sanction did not mean said right has been non-existant.


See Englblom v. Casey....
11.3.2008 7:49pm
einhverfr (mail) (www):
That should be Engblom v. Casey

It is the only Supreme Court decision to my knowledge resting exclusively on the 3rd Amendment. Interestingly, it is not from the ancient past, but from 1982.....
11.3.2008 7:52pm
glenalxndr:
When, oh when, will there be an end to this speculation of what Obama "actually thinks," "feels in his heart," "seems to believe," "sensibly prefers" or "probably will do"?

I am so sick of this shit.

Can I have some hope that President Obama will finally tell me — with metaphysical certainty — where he stands on at least one issue of inconsequential global import?

Nah...
11.3.2008 7:52pm
Kevin P. (mail):
Here's Barack Obama's actual track record on gun control, as opposed to what he claims today.

We would have to be idiots to take him at his word.
11.3.2008 7:58pm
Richard Aubrey (mail):
Randy.
You make no sense. You want to know who owns a gun in case he commits a crime. First, you have to catch the criminal to know if he committed a crime. So, once you know he committed a crime, you know if he has a gun. Presuming he's not an illegal owner.
So?
11.3.2008 8:20pm
Floridan:
pmorem: "In my line of work, people not fretting about what can go wrong is usually an indication that things are about to go horribly astray."

There's a big difference between "fretting about what can go wrong" and paranoia.
11.3.2008 9:38pm
einhverfr (mail) (www):
Brett Bellmore, Personally, I think that if this became Obama's platform, the midterm and re-election campaigns would swing the other way.

I was for the expiration of the AWB simply because I looked at the record, what legal sites were saying about it and the Second Amendment (as to how the gov't was avoiding a direct 2nd Amendment challenge) and concluded that, in the interest of the rule of law, the law had to go.

In the end, I think that a lot of what Obama has called for in the past would simply be outside the powers of the Federal Gov't, and I would hope that the courts would strike such provisions down.

My proposals for gun control:

1) Require a state license for owning a firearm. Licensing requirements involve mostly passing safety exams, not having certain felony convictions, etc. the license should be no harder to obtain for most people than a driver's license.

2) Pass a state law which would hold gun owners responsible for the misuse of their weapons if they fail to report them missing when they have been stolen, or if they fail to keep them properly secured. There is no reason that firearm deaths by accident need to be as high as they are. This would amount to civil liability.
11.3.2008 10:18pm
whit:

Pass a state law which would hold gun owners responsible for the misuse of their weapons if they fail to report them missing when they have been stolen, or if they fail to keep them properly secured. There is no reason that firearm deaths by accident need to be as high as they are. This would amount to civil liability



sorry, but give me a break. do you have any idea how high 'firearm deaths by accident' are? here's a hint. near historic lows, and extremely rare.

Motor vehicle accidents - 44.3%
Falls 17.8%
Poison 13%
drowning 3.9%
Fires/burn.smoke 3.4%
medical/surgical complications 3.1%
other land transport 1.5%
Firearms .8%

if we eliminated ALL accidental firearms deaths, that would lower accidental deaths in the US by LESS than 1%

contrarily if we reduced MVA's by even 10%, we would reduce about 5 times as many accidental deaths. and guess what? by more aggressive DUI and traffic enforcement, that IS a distinct possibility.

accidental firearms deaths are extremely rare. we could also eliminate more deaths by passing a law requiring kids not be allowed to bathe alone or anybody be allowed to swim w/o a lifeguard present. and guess what? swimming isn't a civil right, like gun ownership is.
11.3.2008 11:30pm
The Unbeliever:
Engblom v. Casey

It is the only Supreme Court decision to my knowledge resting exclusively on the 3rd Amendment. Interestingly, it is not from the ancient past, but from 1982.....
Interesting, I was unaware of the case. Thanks for bringing it to my attention, learning more Constitutional trivia is always a plus!

(But to be pedantic, the case looks to be a specific application of the absolute right protected by the 3rd, instead of a clarification of what that right actually is. So I think my characterization of it as "a right which informs our assumptions without Supreme Court definition" is still tenable. However, I have to re-examine my timeline regarding how it applies to National Guard deployments in disaster areas, since 1982 puts it around the time when such deployments began to be more frequent.)
11.5.2008 1:58pm