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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg

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Obama and Guns

February 15, 2008 5:20 PM

A day after the tragic shootings at NIU, Barack Obama has revealed that he thinks the 2nd Amendment protects an individual’s right to own a gun.

That sounds surprising—and certainly not what you’d expect from someone with the Senate’s most liberal voting record.

Here he is, weighing in on one of the biggest and most contentious cases the Supreme Court will hear this term, a case that finally will answer one of the great unresolved question constitutional questions: Does the 2nd Amendment protects a person’s right to own a gun, or does it merely protects a state’s right to assemble a militia?

By embracing the individual rights approach, Obama is bucking gun control groups and states like New York, which have taken the more orthodox position that the 2nd Amendment only protects a state’s right—and that cities like Washington, D.C. can therefore ban all guns if they choose.

But if you dig a little deeper, Obama’s position is not as surprising as it first appears—especially when you think about those big primaries looming in gun-friendly states like Wisconsin (where he made the remarks today), Texas and Ohio. That’s because, as significant as this is, his embrace of individual rights is loosened by a qualifier.

Obama is actually straddling the issue somewhat like the Bush Administration did when it filed a brief in the case last month. He does support individual rights, but says—and this is the qualifier--the government can impose reasonable restrictions on gun ownership. And he then suggests that pretty much any existing laws are reasonable.

“There's been a long standing argument among constitutional scholars about whether the 2nd Amendment referred simply to militias or whether it spoke to an individual right to possess arms,” Obama said. “I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation just like most of our rights are subject to common-sense regulation.”  Watch Obama's comments HERE.

He declined, just as the Bush Administration did, to take a position on whether the DC gun ban violates the 2nd Amendment. He said instead that states and cities should have broad latitude to regulate guns—even if the Constitution guarantees an individual right to own them.

“The city of Chicago has gun laws, so does Washington, DC,” Obama said.  “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 borne out by our Constitution.”

Now that sure sounds like someone who thinks the handgun bans would be a reasonable restriction under the 2nd Amendment.

And that shows why conservatives are up in arms over the Bush Administration’s brief in the case.

Instead of embracing the categorical approach of D.C. Circuit Judge Laurence Silberman, who said a ban on handguns was a clear violation of the 2nd Amendment, the Bush Administration’s brief argued for a balancing test. It refused to take a position on the DC gun ban, and instead urged the Court to send the case back to the lower courts to apply the different, less strict standard.

Conservatives were outraged. They strongly believed the Bush Administration—even though weighing in on the side of individual rights—advanced a legal position that would make the 2nd Amendment meaningless. Even though the administration said the ban “may well be unconstitutional,” it gave enough wiggle room for a court to hold otherwise.

And if it’s constitutional to ban all guns in a city, as DC basically does, what’s the point of the 2nd Amendment? If that’s not unconstitutional, conservatives ask, what is?

Nothing, they say.

Obama’s position on the 2nd Amendment may make that point for them. As he said today: “I think there's a lot of room before you (start) bumping against a constitutional barrier for us to institute some of the common-sense gun laws that I just spoke about.”

Incidentally, Obama was not one of the 55 senators (including Wisconsin Democratic Sen. Russell Feingold and eight other Democrats) who signed a brief last week arguing the 2nd Amendment protects an individual right and that the DC gun ban was unconstitutional. That brief, also signed by 250 members of the House and Vice President Cheney, urges the Court to strike down the gun ban—and adopt Silberman’s test.

Obama wouldn’t go that far. Neither would the Bush Administration.

And that raises the question: If the Supreme Court won’t either, will the big gun case have any impact on existing gun laws whatsoever?

February 15, 2008 | Permalink | User Comments (107)

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Miss, I believe you live in America. I also know that whether you ban guns or make it legal to own one, people who need them will get them. Obama's idea supports people who need a gun to protect themselves. I'm not a politician,but I'm a realist. Obama and his supporters make sense and it's called common sense. Get a life will you.

Posted by: Ralph Simpson | Feb 15, 2008 5:50:14 PM

I'm not sure what the argument is, he has not changed his stance on gun ownership, so the upcoming primaries don't have anything to do with it.

Posted by: Louis | Feb 15, 2008 6:07:54 PM

What do you mean by "the more orthodox position that the 2nd Amendment only protects a state’s right"? More orthodox? I feel you are projecting your own personal feelings on gun control in this article. Shoddy journalism at best.

Posted by: Jay | Feb 15, 2008 6:14:17 PM

Because of that common sense, too many innocent people have died without a reason. If we have a tough gun law, people can not get gun as easy as they can now. Therefore, many innocent life will be safe.

Posted by: Jane | Feb 15, 2008 6:14:32 PM

He has also supported a ban on the manufacture, sale and possession of handguns while in the State Senate
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 Obama's voting record as a State Senator...

Posted by: slee | Feb 15, 2008 6:20:45 PM

Well, give Ms. Greenburg a little green baseball cap with a red star for her assault on the Constitutional right to bear arms. Her "more orthodox position," is a radical position inconsistent with the Constitution.

Posted by: Tell the Truth | Feb 15, 2008 6:50:30 PM

It is not about need Ralph. We have a right to own a gun. We may not need a gun today, but then again if they take guns away today then we may need them to get back our liberty tommorow. Take a look at Brian Ross' page (the Blotter) and look at the alleged trade in human bodies from executed prisoners. In the past the PRC has been charged with harvesting organs for profit as well. When the government comes to grab me so that they can execute me for a petty crime so they can score a few bucks in body parts then it will probably be too late for me, but hopefully with the protections of the 2nd Amendment someone will fight back against the injustice. The 2nd Amendment is part of the Checks and Balances on the state. It ensures that an oppressive state does not go unchecked by the citizens. It makes it more difficult to impose tyranny. I also think that it makes a revolution less likely because the state will not act unilaterally to oppress the citizenry without considering the consequences of their actions. Although, I don't support Obama or his view of the 2nd Amendment. At least Obama has read this part of the constitution. I think that he was less than courageous in taking his stand and it was more of a calculation than anything else. He saw it as an opportunity to agree with the administration on guns. It was probably a wise political move. There is hope for the man, he just needs to see a little more light. People inside the beltway are living in fantasy land if they think they can ban guns in their political disneyland. Some might say that they need some bans to protect an area that has a high concentration of politicians, ambassadors, and dignitaries (lobbyists, etc...). My response is that they could protect the government by not putting so many eggs in one basket. Maybe move the pentagon to a bunker and likewise for some of our other nationals security offices. Geographically diversify and we wouldn't worry about the magnet for crazies. There are other solutions than just banning weapons. I noticed Jan didn't mention Vice-President Cheney's dissent from the official brief filed by the administration. In the nanny state of Hillary Knows Best, I would expect that government lawyers would file briefs without consulting the public on the issues, but I am suprised by some things and the Bush Administration brief is one of them. It is difficult to have your voice heard in this society and I think more could be done to allow citizens to comment before the administration passes judgement. I was heartened that the City of Berkeley allowed dissentors into their offices to comment on their egregious actions with regards to Marine Recruiting in Berkeley. The outcome of that dissent wasn't what I had hoped for, but the process was nice. It probably isn't possible for the Department of Justice to open up their offices for town hall meetings as far as I know and it isn't possible for every American to make it to DC for hearings but there are things that can be done. I would point to the new media we are using now (the blog). I noticed there is a new TSA blog, but the White House Website is still pretty sterile with little space for the public to leave comments on proposals and policy. I think that the administration of the future would be wise to recognize that Government Websites are the people's websites and we should have a space to exercise our free speech rights as dissentors and supporters. Otherwise, we have a whole lot of pretty documents that say we are a government of the people, by the people and all that, but otherwise it is just lip service and we just have a vision that faded a long time ago. I support the 2nd Amendment and I notice a number of flaws in the recently enacted gun control laws. I do not support the argument that felons and all of the mentally ill people should be denied a right to handle a firearm. In some states they have the proper view that once your sentence is over you are allowed to vote again. Your rights should be restored completely once your sentence is faithfully completed. I noticed there was a push after Virginia Tech to rush through some bans on the crazies purchasing firearms, but I think this legislation was haphazard at best. My understanding is there was a push to build a huge government database of people who were commited to mental health facilities by the courts and are thereby banned from firearms purchases. I understand the need to keep guns out of the hands of dangerous people, but dangerous people should not walk the streets unsupervised either. However, that wasn't my legal point either, in mental health commitments the issue of revoking 2nd Amendment protections is almost never addressed. These commitments are usually short term and due process is denied when you deny people a hearing on the issue of their 2nd Amendment protections. I would challenge the legality of such a data base. They make a pretty big jump from a commitment to permanent revocation of someones civil right to own a firearm in my view. If they are not healthy enought to own a handgun, a steak-knife, or a vehicle then they should be locked up. That head shrinker up in New York was hacked to death with a blade or something right? We live in a free society and there are great many risks from freedom, but hacking away at the bill of rights is not the answer to mitigating our physical security risks. When you revoke a citizens' right to bear arms it doesn't just take away their right to target shoot and hunt it is like pulling the plug on someone's life support. I think if anything the Democrats would recognize the need for the poor to own weapons and might consider subsidies and tax holidays on gun purchases. We need the 2nd Amendment now more than ever before in our history. The recent rash of gun crimes should be notice to all of us to arm our citizens. We went the other way with laws banning guns in colleges and government offices. It didn't work. The predators notice where the unarmed masses are. It is time for the pendulum to swing the other way in favor of our civil right to bear arms. Better to join in the freedom than try to abridge our freedom. God Bless America. Regards, Jon.

Posted by: BlackwaterJon | Feb 15, 2008 6:55:42 PM

I never believe a word Obama says. He's full of hype and hot air.

Posted by: J Cline | Feb 15, 2008 6:56:14 PM

Is this a flip flop or did he simply change his tune to appeal to constituents who won't be separated from their guns? What do the MSNBC, and CNN pundits call it? It's about time this man was scrutinized.

Posted by: Vivi | Feb 15, 2008 6:58:00 PM

I am a die hard democrat.
Regardless of the end decision on who will have the dem. ticket.
I am offened my the remark I heard 15 mins ago on ABC nightly with Charles.
Obama said "she (Hillary)when UPSET!!!
will say....."
I know this thought.
I have heard this before in the work force.
It is the underside of dicrimination, capable women being insulted "as women who get upset"
My vote will always be for Hillary. She has been fighting this all her life

Posted by: jhbrwnlw | Feb 15, 2008 7:03:22 PM

I believe the "right to bear arms" was put into play originally so people could protect themselves from British soldiers. So, we have soldiers attacking American's in their homes. Definitely outdated amendment, that can not back either sides claim to right, or nknoe right.

Posted by: Dave | Feb 15, 2008 7:09:32 PM

Obama is sexist. But if you call him on that he'll say you are racist.

Posted by: SoOverObama | Feb 15, 2008 7:26:26 PM

He said : "I will not take a way your gun" that was in Idaho .
He promised to get a driver lisence for illegal immigrant.
Different places are difference promises.

Posted by: fakebama | Feb 15, 2008 8:07:39 PM

Obama is a major flip flopper and it looks like no one is calling him on why he is now changing his stance on guns, as for the Larry issue, it is a court matter the papers were filed so I don't know how none of the networks don't seem to be interested in this yet its all over the internet. Guess as always its a free pass for Obama, and no one is interested in finding out what the real story with this guys is.

Posted by: SJ | Feb 15, 2008 8:08:33 PM

OBama today pleads to stop gun violence.
He got loads of votes from Idaho after
declaring:"I AM NOT GOING TO TAKE GUNS AWAY FROM YOU FOLKS" I am still waiting to hear him to reconicile these two positions of his.

Posted by: unbelievable | Feb 15, 2008 8:08:57 PM

He will promise something in each state.
Just to get more voters and after he becomes president,,,he will forget it.
It is just so sad ,,,,all over the country believe him and support him.
They just don't realize he treat them like a kid who needs candy so much.

Posted by: fakebama | Feb 15, 2008 8:19:56 PM

TELL THE TRUTH? OBAMA, THE CONSUMATE POLITICIAN, DOES NOT UNDERSTAND THE MEANING OF TRUTH. TRUTH IS WHAT HE THINKS WILL GET HIM VOTES BY SHIFTING GROUNDS, PRESENTING QUARTER AND HALF TRUTHS TO BE THE WHOLE TRUTH, AND SOMETIMES OUTRIGHT LYINGS. GOOD CHOICE FOR A SAINT.

Posted by: WHAT TRUTH? | Feb 15, 2008 8:22:32 PM

"From my Cold Dead Hands" is more than a poetic slogan and the title of a book it is a good personal policy for any American that cherishes their freedom. My advice for those that want to change the US Constitution without officially amending it is to shop for a constitution that suits you better. There are plenty of English teaching jobs in the PRC, North Korea, etc... You can't legislate away the right to bear arms without going through the amendment process. I realized that a long time ago. I had hoped for an amendment or law that would stand to ban US Flag burning, but it ain't the will of enough people. I am disheartened that Microsoft's Windows has more legal protections (copyright and licensing) for its' creators than Betsy Ross' flag design. I guess she didn't have a very good attorney. I would recommend that we live by the same call Heston made. It ain't just a slogan. God Bless America. Jon

Posted by: BlackwaterJon | Feb 15, 2008 8:22:49 PM

"OBama today pleads to stop gun violence. He got loads of votes from Idaho after declaring:"I AM NOT GOING TO TAKE GUNS AWAY FROM YOU FOLKS" I am still waiting to hear him to reconicile these two positions of his."--unbelievable

I think he plans to take away some guns. Basically, the guns that he can get a hold of. It is in standing with the DNC's long principle of cowardice (cutting and running, and slowly eroding our freedoms whenever possible). I don't expect the guns to be handed over to the Obama regime willingly in red states. He knows that. The government knows best, ya know. It is the same program as all the rest of the Gun Grabbers use. We get those US Constitution free zones like DC, NYC, and any impacted area like the inner city. Whatever happened to equal protection anyways?

Posted by: BlackwaterJon | Feb 15, 2008 8:33:58 PM

Our family is pro-gun and we believe in our constitution of the United States of America!

Posted by: horacio loza | Feb 15, 2008 8:56:46 PM

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