Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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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 (108)
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Good thing ole Jan spent all that money getting a law degree at U of C and didn't learn a thing. The more "orthodox" position on the 2nd Amendment is that it protects an individual right, not a state right. Good lord Jan, get your money back...or my guess is she is making a preferred personal opinion. Even the Libs legal hero, Laurence Tribe, has stated with much research that it is almost impossible to come to any other conclusion on the 2nd Amendment than it being an individual right. No wonder people can't stand the media...they can't keep their personal "facts" out of their so-called reporting, and furthermore, their projected "facts" aren't even close to being correct. Great work, Jan.
Posted by: The C Man | Feb 15, 2008 9:06:18 PM
I like how the media has it, in one of these blogs the question is "Did McCain flip flop on torture?" and as sure if I search I can find some article where the media will as if Hillary has flip flopped on some issue. But when it come to Obama and they know he is not changing his stance the headline is "Obama and Guns", they have omitted the word "flip flop" to tone down the article, as usual another kid gloves attitude towards Obama.
Posted by: SJ | Feb 15, 2008 9:32:26 PM
Here Sen. Barack Obama is offering thoughts and prayers for the victims and their families, but some in the media want an instant answer on gun control right now?
We are all looking forward to the next debates. Right now the top three issues that concern Democrats are the economy, Iraq, and health care.
The Gun control issue will come up in the debates and hopefully the moderator will give the voters a chance to hear Clinton and Obama on the top three issues, then deal with the gun control issue without it dominating the next debate?
Posted by: cooday | Feb 15, 2008 9:54:22 PM
I would say that "more orthodox" is a matter of opinion and locale.
Posted by: BTL musings | Feb 15, 2008 9:57:06 PM
Barack Obama shouldn't just 'think' people can own guns, he should 'know it' for sure. For anyone having a difficult time with the 2nd Amendment, they should read it again -- without anybody whispering in their ear "it says THIS but it really means THAT". Watch carefully, the 2nd Amendment reads something like this... "the right of the PEOPLE to keep and bear arms shall not be infringed... a well regulated militia being necessary to the security of a free STATE". That's the 2nd Amendment stated in a reverse form. It's clear that PEOPLE create MILITIAS, and MILITIAS create the STATE. This Amendment simply says it is necessary for WE THE PEOPLE to own guns so that within a minutes notice (remember the Minutemen?) we can get our guns and come running to defend our Country, State, government, or whatever. Our country was born out of our people's militias. People owned guns long before our current government ever existed. If they didn't own guns, our current government wouldn't exist. It is pitiful that the debate for gun ownership is headed in such an absurd direction.
Posted by: the old man | Feb 15, 2008 10:07:21 PM
jhbrwnlw: Just try to calm down.
Posted by: Sinecure | Feb 15, 2008 10:13:09 PM
We've had a spate of handgun deaths in Boston involving guns and gangs and the drug business. Innocent bystanders are dying. If you're poor and you live where these gangs are, you stand a chance of losing your life in the crossfire.
Somehow, thw absolute right to own a handgun seems less important than figuring out a way to allow innocent people to keep their lives.
Posted by: Neil | Feb 15, 2008 10:31:19 PM
If you listen to the liberal gibberish then you can just wage war on babies with abortion and that should hook you right up Neil. Of course, I prefer to give the innocent a chance and to knock off the criminals with the electric chair but hey that is me. I guess you should of been more focused on building prisons for bad people instead of buying into the liberal trap that you can reform rapists, murders, and child molestors. Innocent people need a handgun to protect themselves from the actions of the liberal judiciary. If they weren't bent on reforming everybody and locked some people up for a change we wouldn't have so much gun violence. Abridging the 2nd Amendment is not the answer. There are 10 amendments in the Bill of Rights not 9. All of our INALIENABLE civil rights are very important. Jon
Posted by: BlackwaterJon | Feb 15, 2008 11:04:55 PM
Another example of a professional politician using a "safe" comment just to get votes in places like Wisconsin. I wonder if he has the backbone to go back to his own state of Illinois and after the recent shooting tragedy there say the same thing as in Wisconsin. I can bet that he will not, but then again, there is no longer a primary in Illinois. Doesn't he have any shame? He is starting to sound like an unscrupulous salesman, promise anything to get the sale, then forget about his/her customers.
Posted by: Telling like it is in 2008 | Feb 16, 2008 12:14:30 AM
Anyone who actively campaigns to undermine the constitution is no friend of lady liberty. Hey, I was to shy to say that someone is a jack-booted thug. "Alcohol, Tobacco, and Firearms should be a convenience store."
Posted by: BlackwaterJon | Feb 16, 2008 12:32:37 AM
i think the media is trying hard to put out something negative on obama, because of the late accusations that they've been lenient on him.
but common sense says that everyone by the law of constitution have the right to arm themselves. it also states that the federal government and the state should be seperate.
obama is basically stating that it would be unconstitutional for the federal government to put a ban on guns, that's a strict violation of the 2nd amendment, however each state or/and city can do whut they please in regards of gun control. it's not the federal government's postion to interfere with state laws.
Posted by: gluvnast | Feb 16, 2008 4:18:06 AM
The burden of proof is on Larry.
He is the accuser. Filing a lawsuit does not constitute proof of anything, anyone can file a lawsuit. Also, if you look at the lawsuit in detail on smokingun you can see that Larry doesn't even have an attorney, he is acting as his own.....you know the old saying "A man who represents himself has a fool for an attorney". If I was a betting man I would say his case will be dismissed and Larry Sinclair's story will be relegated to the trash bin.
HE IS A CRAZY KOOK WHO WANTS ATTENTION!!
Posted by: Marlena Detano | Feb 16, 2008 5:20:16 AM
Obama is being furtive. So far he has sought to fit into the leadership role prescribed by those that are disenchanted with all the other candidates. So far he has gotten away with it. But as he fills in his slate we are beginning to see that he failing to be all things to all people. This is story is one example. “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.” So just who is the keeper of “Good common-sense”? Many will be disappointed when it comes down to him making a definitive decision and he does not fulfill the expectation that he would be on their side of the decision. He cannot be all things to all people. Until he can be definitive on important issues it would be a crapshoot to think he would be representative of any one segment of our society.
Posted by: Zinger | Feb 16, 2008 5:32:51 AM
My Fellow Americans, Hillary's 35 years of Experience, is what we dont need! Only takes common since, to know she hasnt done anything for us.If she has had 35 years then why is this country in the Shape its in now? She has been a Senator and could have gotton more stuff done!She represents Old Politics, and its time we move on.Obama Represents New Poltics, and dont have all that baggage to carry around like most Politicians do!To make a long story short, Time For change Is Now, and Obama is the only 1 who can bring it
Posted by: Demo Rules | Feb 16, 2008 5:36:06 AM
I'm a registered Democrat, and as soon as I seen, and heard Obama talk I knew he was the 1 this Country needs for the next President.This Country has been heading down hill ever since the 2000's rolled around,and Obama brings a Hope For Change to this Great Country! He is young and inspiring, and dont carry around all the baggage that Hillary does! I would like to urge all people in this Country who are tired of seeing the direction we have been heading, to get out there and vote, have Hope, and Vote for Change
Posted by: Demo Rules | Feb 16, 2008 6:50:47 AM
Gluvnast, your position is amusing...by your philosophy, prepare yourself for the return of Jim Crow! Seriously, if the states have the right to nullify the constitution, what's the point of having one? Bush and Obama, while to the right of Hillary (and, evidently, Greenburg) on this case, are still far to the left of common sense and the Constitution itself. If we do not have the right to defend ourselves, then we have no rights at all. BTW: I would wager that, at best, McCain falls in with the Bush position. Look for a third party boom this election year as these views become more widely known.
Posted by: jbhyman | Feb 16, 2008 7:06:08 AM
We all love surprises; don’t we? So our choices are narrowed down to known baggage versus new to-be-determined baggage to be heaped upon us. Please define the change we are headed for with Obama. His positions so far depend upon the demographic he is addressing. We don't need change just for the sake of change. Most of us really don’t like it when our trust gets misplaced and our hopes or dashed.
Posted by: Zinger | Feb 16, 2008 7:37:36 AM
I am a registered Dem, and voting for Obama. I do not believe he is flip flopping, however gun control is a sensitive subject. I support our individual right to bear arms. It was put into the constitution not as a means of personal protection perse but as a means of stopping a tyrannical government. Which is why it gets confused with state militia laws. The only way to stop the senseless killings is to get a hold of the people doing it before they become so lost to us and themselves, and I believe Obamas educational support is the first step on the road to healing some of these souls. I have hope
Posted by: Elizabeth Colgan | Feb 16, 2008 7:39:14 AM
THERE IS NO CHANGES WITH OBAMA EXCEPT THE MEDIAS HELP AT HIDING HIS RECORD OF SUPPORTING THE WAR AND BUSH. Obamas record shows he supports the war, voted twice in 2006 against bringing America's troops back home. He votes for war appropriations giving our money to Halliburton and Blackwater. His latest bit of posturing S 433 allows the Bush Administration to suspend any troop withdrawal!!!!Which if not suspended, still keeps the troops in Iraq for a long time to come? Obama when faced with tough choices always gave in to pressure from the Bush administration or corporate lobbyists. Such as Obama voted for Bush's energy bill, sending more than $13 billion in subsidies and tax breaks to oil, coal, and nuclear companies. Obama voted with Republicans to allow credit card companies to raise interest rates over 30 percent, INCREASING STUDENT LOANS RATES AND FEES increasing hardship for families. Obama voted for one of Bush's top priorities - expanding Nafta to South America - even as President Bush obstructed all the top Democratic priorities. Obama voted with Bush to make it harder for ordinary people to hold big corporations accountable when they do things like sell toxic toys, poisonous pet food, or just plain rip you off. Obama was the Senate's biggest Democratic advocate of subsidies for liquid coal, even though liquid coal produces twice the global warming pollution of the crude oil it's meant to replace (Obama "backed off" this position after being pummeled by environmentalists for several months, but still voted for increased subsidies, albeit with conditions)Obama, a Hamiltonian believer in free trade and supporters of globalization has lent his support to the "Hamilton Project formed by corporate-neoliberal Citigroup chair Robert Rubin and other 'Wall Street Democrats' to counter populist rebellion against corporate tendencies within the Democratic Party. Obama provided assistance to pro-war candidates (such as Joe Lieberman). Obama voted for "business-friendly 'tort reform' bill that rolls back working peoples' ability to obtain reasonable redress and compensation...from corporations!!! Obama considers single payer universal health care too socialist and has stated that he prefers voluntary solutions. **He voted against requiring medical care for aborted fetuses who survive. Abortion opponents see Obama's vote on medical care for aborted fetuses as a refusal to protect the helpless. Some have even accused him of supporting infanticide. He supported allowing retired police officers to carry concealed weapons, but opposed allowing people to use banned handguns to defend against intruders in their homes. And the list of sensitive topics goes on. With only a slim, two-year record in the U.S. Senate, Obama doesn't have many controversial congressional votes which political opponents can frame into attack ads. But his eight years as an Illinois state senator are sprinkled with potentially explosive land mines, such as his abortion and gun control votes. recent land purchase from a political supporter who is facing charges in an unrelated kickback scheme involving investment firms seeking state business. Obama has no substance. He has provided no solutions.
Posted by: OBAMA THE CHANGE AGENT | Feb 16, 2008 8:36:06 AM
Obama senate vote shows opposes allowing people to use handguns to defend against intruders in their homes.
Posted by: Jack | Feb 16, 2008 8:39:02 AM
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