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Obama and Heller:

While Barack Obama appeared to endorse the Supreme Court's Heller decision in the statement he released on Thursday, at other times he defended the constitutionality of D.C.'s gun ban. This leaves the Washington Post's Howard Kurtz a bit befuddled.

Barack Obama is under hostile fire for changing his position on the D.C. gun ban.

Oh, I'm sorry. He didn't change his position, apparently. He reworded a clumsy statement.

That, at least, is what his campaign is saying. . . .

Regardless of what you think of the merits of yesterday's Supreme Court ruling overturning the capital's handgun law, it seems to me we're entitled to a clear position by the presumed Democratic nominee. And I'm a bit confused about how the confusion came about.

Here's how the Illinois senator handled the issue with the Chicago Tribune just last November:

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

Kind of a flat statement.

And here's what ABC reported yesterday: " 'That statement was obviously an inartful attempt to explain the Senator's consistent position,' Obama spokesman Bill Burton tells ABC News."

Inartful indeed.

Related Posts (on one page):

  1. Obama and Heller:
  2. The Candidates on Heller:
juris_imprudent (mail):
Rather like his pledge to stay in the public campaign finance system.

Inartful? Indeed.

I'm sure it all has to do with some nuance that we don't grasp.
6.28.2008 4:29pm
Bruce:
Oh, gee, another round of election-year "spot the flip-flops." Yawn.
6.28.2008 4:33pm
mrshl (www):
Isn't it possible to both agree with the individual rights view and still characterize the DC gun ban as a reasonable regulation? I think so.
6.28.2008 4:42pm
Should be bar studying:
Isn't it possible to both agree with the individual rights view and still characterize the DC gun ban as a reasonable regulation? I think so.
No one on the Supreme Court accepted this view. But, yeah, you could think that way.
6.28.2008 4:49pm
A. Zarkov (mail):
"Isn't it possible to both agree with the individual rights view and still characterize the DC gun ban as a reasonable regulation? I think so."

No.

If the Second Amendment confers an individual right "to keep and bear arms," then how can the federal government ban the arms you have a right to keep? A ban is not mere regulation, it effectively extinguishes the right.

Let me put it another way. If a woman has a right to an abortion (something not even in the Constitution) can the federal government ban it and then call that mere regulation?

Obama has a Harvard Law degree and has taught constitutional law at the University of Chicago, so he should be capable of this kind of legal reasoning.
6.28.2008 4:57pm
zippypinhead:
Obama's record on gun control is open, notorious, and unequivocal. While the mainstream media might be engaged in a bit of willfulness blindness toward the candidate they overwhelmingly support, many of the voters who cared got a taste of his true feelings when he had his "inartful" little quip about much of middle America "clinging" to God and guns.

Thank you Howard Kurtz, for pointing out that the Emperor-Elect-Maybe has no clothes. Like the Who once sang, let's hope "we won't be fooled again..."
6.28.2008 4:59pm
David M. Nieporent (www):
Isn't it possible to both agree with the individual rights view and still characterize the DC gun ban as a reasonable regulation? I think so.
No. The DC gun ban was the most extreme ban anywhere in the country. If that's a "reasonable regulation," then there's no such thing as an unreasonable one. We've got an "individual right" that protects nothing at all.

Your question is like asking whether we can accept that the first amendment protects individual rights to free speech, while characterizing a law that bans all speech made without permission from the mayor as a reasonable regulation.
6.28.2008 5:46pm
cboldt (mail):
-- Obama believes the D.C. handgun law is constitutional. --
.
And he'd nominate SCOTUS candicates who agree with him.
.
Democratic party = gun grabbers (bigger ones than the GOP, even)
6.28.2008 5:54pm
Asher (mail):
This is the second case this week where he's probably lied about what his view on the case was, the other being Kennedy v. Louisiana, where he feigned disappointment in the Court.
6.28.2008 6:26pm
Javert:

While Barack Obama appeared to endorse the Supreme Court's Heller decision in the statement he released on Thursday, at other times he defended the constitutionality of D.C.'s gun ban.

Gives new -- and in my view, correct -- meaning to his campaign slogan: "change we can believe in." Translated: I'll use empty metaphors, doublespeak, and nuance so that anyone can change my words to believe what they want.
6.28.2008 6:27pm
CDR D (mail):
>>>And he'd nominate SCOTUS candicates who agree with him.
.
Democratic party = gun grabbers (bigger ones than the GOP, even)


****

True. Stevens was nominated by Tricky Dick, whose Justice Department promulgated the "collective right" model of the 2A.

Souter was nominated by Bush I, and as AG of NH had made his anti-individual right view of the 2A clear even then.

Right there you have half of the dissent votes.
6.28.2008 6:42pm
BT:
BO was in the Illinois legislature for 8 years and not once do I recall him commenting about Chicago's anti-gun laws being excessive or that I as an individual and citizen of Chicago have a right to own a hand gun. Or that he would lead the way on moderating those laws to give a someone like me a voice in the legislature. Jessie Jackson, a BO supporter, is now comming out and saying he will lead a fight to keep Chicago's laws on the books. Wanna bet BO dances around J squareds new target? Anyone who falls for BO's new "moderate" stance on the 2A just don't know Cook County or Chicago politics.
6.28.2008 6:53pm
Smokey:
So now Obama suddenly claims to be on the side of freedom??

Isn't this the very same politician who told everyone that although he had attended Jeremiah Wright's church for over twenty years, he didn't recall the venomous Wright saying anything nasty? Show of hands: was Obama lying? [Lotsa hands, there.] And now, Mr. Say Anything pretends to be a supporter of the 2 A?! Ri-i-i-i-i-ght.

Obama is a chameleon. He will say anything to get elected, anything, with no concern for the truth. Obama lacks character; everything he has was given to him, he did not earn any of it through merit. Same with his darling wife.

If America should be so extremely unfortunate to get a president Obama, he will absolutely gut our great military, appoint judges and Administration officials who run with the likes of his cronies William Ayres, J. Wright and their lousy ilk [does BO have even one long time middle of the road, much less a conservative friend? Or are they all America-hating far Leftists?]. Obama intends to drag this country straight down to the pathetic level of the hugely overtaxed, bureaucrat-controlled, Euroweenie Union of defenseless serfs.

Word.

In November, you get to vote on it.
6.28.2008 7:49pm
therut:
Why am I NOT surprised? This has been the case of the Democrats for years. Nothing new or changed about them. Just a new coat of Rust-ola paint.
6.28.2008 8:00pm
Stash:
Er, all four of the dissenters also recognized an "individual right" so while Obama's view of yes "individual rights" and no the DC ban is "not unconstitutional" is wrong, but not entirely indefensible, at least insofar as it could be a sincere belief.(If you grant, at least that the four diseenters are "sincere.")And, as has been pointed out in this blog, it is far from clear that merely recognizing an individual right is going to reverse anything beyond a complete ban.

On the other hand, the political dodge is painfully clear. I.e., he uses the opinion as cover for his anti-gun record.

One final fairness issue is that I have not seen him call for a national ban on handguns. On a national level, it appears that his position is regulation, which Scalia clearly stated was probably not inconsistent with the individual right.

What is misleading is the fact that his "agreement" with the decision is intended to hide the fact that he is probably in favor of the heaviest regulation that the "individual right" (however he defines it) will constitutionally bear.

Lastly, this blog has pointed out (I don't remember who posted it or the date) his "belief" in the individual right is not a new statement by Obama. He also made it earlier in the primary campaign.

So his embrace of a 2nd Amendment "individual right" is technically less a flip-flop than a practiced dodge.
6.28.2008 8:14pm
GUEST3000:
"Isn't it possible to both agree with the individual rights view and still characterize the DC gun ban as a reasonable regulation? I think so."

Of course its possible, notwithstanding the statements of the sloppy thinkers above. Every one (even the majority) agrees that some restrictions are constitutional, but which ones? Why handguns but not machine guns? Why licensing but not trigger locks? If you are looking for principled guidance from the Court's opinion, you will be sorely disappointed (unless ipse dixit strikes you as persuasive reasoning)

As scholarly as the decision was in finding an individual right based in self defense, the Court's reasoning for why the handgun ban is unconstitutional was one of the most thinly reasoned and unprincipled pieces Scalia has ever written. Simply because people prefer having handguns for self defense, they Constitution protects it? It's precisely that sort of reasoning that Scalia normally excoriates when the particular right is one he happens not to like. And it's unfortunate that it was so badly reasoned, because of course that was the issue that every one knew would be the important one.
6.28.2008 8:29pm
CDR D (mail):
>>>Why handguns but not machine guns?

***

How about:

a) Handguns are in common use among the citizenry.

b) They are useful for military purposes, law enforcement, and personal defense.

c) They are lineally descended from the kinds of weapons known to the founders.

Arguably, machine guns don't quite fit into every category.

JMHO
6.28.2008 9:05pm
JB:
One big meh.

As an Obama supporter, I say:

It's not a flip-flop, it's a lie. He's pro gun-control. At best he'll accept the decision and work for gun control measures that don't violate it.

As lies go, it's not a bad one. It's obvious what it is, and only extremely low-information voters will be confused (but they're likely to conclude that he's pro-gun control because he's a Democrat anyhow, so even they won't be confused). Therefore, it's pretty generic and only serves to confirm that Obama's just another politician. I reiterate, however, that Obama has no remaining supporters who think he's the Messiah.
6.28.2008 9:07pm
trad and anon:
Politicians engage in this kind of "clarifying" all the time. Nothing new here.
6.28.2008 10:18pm
Thorley Winston (mail) (www):
As an Obama supporter, I say:

It's not a flip-flop, it's a lie.


Quite right, Obama lies about his position on guns. And his "church." And Iraq. And NAFTA. And . . .

.
6.28.2008 10:34pm
Stash:
JB--

It's not a lie. The individual rights position has become virtually the consensus view among constitutional scholars--including pro-gun control scholars.

That's why it is likely that Obama in fact subscribes to it. That is why even the dissenters agreed that the 2nd Amendment creates an individual right. The pro-gun folks accuse the dissenters of being dishonest. But if they were willing to be dishonest, they drew the line at denying an individual right was intended, as scholars have shown.


Most people on both sides of the issue, however, have been behind the curve on 2nd Amendment scholarship--thinking that the question began and ended with the question of the individual right. Yet Scalia lists as presumptively constitutional virtually every restriction short of a complete ban that has ever been proposed.

In short, Obama is not lying to the extent he subscribes to a very narrow view of the 2nd Amendment as an individual right. All the evidence suggests that this is the case. His less than forthright behavior is relying on people's identification of any acknowledgement of the individual right as being the equivalent of being anti-gun control. As the Supreme Court opinions, both in the majority and dissent, show this is not true.
6.28.2008 10:49pm
frankcross (mail):
One thing that hasn't been discussed much about the Scalia opinion. He lists various regulations or even bans on gun ownership (for felons) that are constitutional. Yet this didn't seem to be supported by originalist evidence.

On what evidence would one allow a ban on handgun ownership by felons? Maybe good policy, but what is the constitutional basis fo rsuch a ban?
6.28.2008 10:54pm
AnonLawStudent:

On what evidence would one allow a ban on handgun ownership by felons? Maybe good policy, but what is the constitutional basis fo rsuch a ban?

One can be deprived of rights so long as it is done "by due process of law." For example, we have long stripped felons of the right to vote and, for a limited period, their right to travel. More recently, certain categories of (sex) offenders are stripped of their right to live in a place of their choosing. Stripping felons of the right to bear arms is no different.
6.28.2008 11:10pm
Jmaie (mail):
<i>Therefore, it's pretty generic and only serves to confirm that Obama's just another politician. </i>

True enough, but his entire appeal is based on appearing otherwise.

<i>I reiterate, however, that Obama has no remaining supporters who think he's the Messiah.</i>

I wish this were true.
6.28.2008 11:39pm
Bart (mail):
If Justice Stevens can argue that he both supports an "individual right" to keep and bear arms as well as D.C prohibition of both and have it be called scholarly originalism, why not Mr. Obama?
6.28.2008 11:59pm
Dilan Esper (mail) (www):
This is the second case this week where he's probably lied about what his view on the case was, the other being Kennedy v. Louisiana, where he feigned disappointment in the Court.

The gun control one is a flip-flop, but the death penalty position is one he took in "The Audacity of Hope". It's no flip-flop, as far as I can tell.
6.29.2008 1:33am
dmccartney (mail) (www):
SCOTUS decisions are a shrewd issue for McCain to raise loudly.

As a lawyer and former law prof, Obama has to speak not only as a politician (with his own views, subject to flip-flop fingering) but also as one skilled at legal reasoning.

McCain "894-of-899" is not so encumbered with the legal skills. He can cast the decision in whatever indelicate way he likes; if someone calls him out on it, he can just throw out a "now now, don't try and trick me with your jive lawyer-speak". Obama's court-comments will have more careful two-tongued listeners.

Now Obama clearly used the chance to shape his gun-position--he is a politician. But I am heartened by his differentiating the good policy goal (reducing gun violence) from the constitutional limits to achieving it. It has been a while since the Constitution was more than an afterthought.
6.29.2008 5:09am
DiverDan (mail):

Isn't it possible to both agree with the individual rights view and still characterize the DC gun ban as a reasonable regulation? I think so.


To paraphrase Bill Clinton, it depends upon what your definition of "think" is. To those of us who cling to the belief that "think" involves a disciplined use of logic, a complete ban on the ownership of handguns is logically incompatible with an individual rights view of the Second Amendment. Now you may indeed sincerely "believe" in both an individual rights view of the Second Amendment and the constitutionality of D.C.'s ban on hanguns - giving the 4 dissenters in Heller the benefit of the doubt, perhaps they had that belief. But that belief is as far removed from rational thought as would be a sincere belief in the Easter Bunny, the Tooth Fairy, or the Great Pumpkin.
6.29.2008 8:28am
RKV (mail):
>>>Why handguns but not machine guns?

No good reason. The fundamental rationale is that the people have the same rights as government employees. No titles of nobility here in the US, and no special privileges (note the historical English practice of the right to arms being tied to social class).

The 2nd "should" protect (at a minimum) those arms in use by the police and the military. Why? Reading the WHOLE Constitution we happen to note Article 1 Section 8 = which lays out the missions of the militia.

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions"

Executing the laws of the union is police work. Repelling invasion is what the Army does. Which is why arms such government entities use are (well, should be) protected for the people by the 2nd. The people, being members of the militia, need the tools to perform their Constitutionally prescribed duties. This is in fact one of the points in Miller, when the issue of fact regarding militia utility of a sawed off shotgun is referred back to a trial court (and I recognize how hard it is for some to get Miller right).

For my part I consider the political need for a litigation strategy for restoring 2nd Amendment rights and look to the civil rights movement for one model. Historically they litigated over many years and with many cases that chipped away at segregation. Brown v. Board of Education was a big break, but it took years after that to get the Voting Rights Act of 1965. We've got to keep going - and it appears that Gura and co. are on the case. Link to Chicago Gun Case Incorporation appears to be the next milestone in the strategy. Beyond that I won't speculate here, but it does include a FULL restoration of the right to arms for otherwise law-abiding American citizens. Think 1933 folks.
6.29.2008 8:44am
JLV:
Stevens was nominated by Tricky Dick, whose Justice Department promulgated the "collective right" model of the 2A.


Gerald Ford, not Nixon, nominated Stevens.
6.29.2008 2:37pm
CDR D (mail):
>>>Gerald Ford, not Nixon, nominated Stevens.

***

You're absolutely right. My bad.

I was thinking of Burger.

Thanks for the correction.
6.29.2008 5:25pm
Sarcastro (www):
Obama is the first politician to take more than one position on an issue as time continues. Changing one's mind as one grows is the sign of a weak, effeminate constitution that is not suited for leadership. Bush and McCain's steadiness on the Iraq war is proof that great Americans never change.

Additionally, if one takes only the pro gun control statements Obama makes, he sure seems to hate guns! So clearly, all the other statemenst by the gun-hater are lies.
6.29.2008 6:10pm
Gullyborg (mail) (www):
...but it IS correct to say the Nixon put Stevens on the federal bench.
6.30.2008 1:03pm