Obama and Guns

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?

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