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When Obama Wrestles with Heller

November’s presidential election won’t just determine who will reside in the White House for the next four years—it could also determine the future impact of the recent Supreme Court Heller decision on your Second Amendment rights.

By Dave Kopel

America's 1st Freedom

October 2008, pp. 33-34, 61. More by Kopel on the Age of Obama.

The recent U.S. Supreme Court decision in District of  Columbia v. Heller plainly stated that the Second Amendment Right to Keep and Bear Arms is, indeed, an individual right. Ironically, Democratic presidential nominee Barack Obama often states the same thing.

In truth, Obama poses a more serious threat to the future application of the landmark decision than any other American.

Heller was a 5-4 decision. Even if a Supreme Court a few years from now did not formally overrule Heller, it could construe the decision so narrowly as to make it the last case that meaningfully applied the Second Amendment.

A future Supreme Court could also greatly reduce Heller’s scope by refusing to make it enforceable against state and local governments. And there is every reason to believe that an Obama Supreme Court, at the urging of an Obama Department of Justice, would do so.

Although Obama claims to support the Second Amendment, his record shows virtually unrelenting hostility toward gun ownership, especially for lawful defense. Consider these facts:

As a candidate for the U.S. Senate, Obama said there should be a national ban on concealed carry licenses, because licensees commit so many crimes. He claimed that Texas’ licensing of Right-to-Carry endangers people in Illinois. In truth, a Texas license does not authorize carry in Illinois, and Illinois is one of only two states that have the Obama-favored policy of not even allowing people to apply for carry permits.

California law, while generally hostile to concealed carry, allows carry by some domestic violence victims who have received a court order against a stalker or a similar personal threat. Obama successfully fought against enactment of a comparable bill in Illinois.

Campaigning for the U.S. House in 1999, and exploiting the Columbine murders, Obama demanded a federal law banning all gun stores from within five miles of a school or park. Of course, in practice this would eliminate almost every gun store in the United States, perhaps leaving a few federal firearms licensees (FFLs) who live on isolated farms.

Running for the Illinois Senate in 1996, Obama endorsed a ban on all handguns. These days, Obama claims that an aide filled out the questionnaire erroneously, yet the cover of the questionnaire has Obama’s own handwriting on it.

In 1998, he answered a questionnaire from the Illinois State Legislative National Political Awareness Test, checking a box that said one of his “principles” was “Ban the sale or transfer of all forms of semi-automatic weapons.” As a state senator, Obama fought to defend handgun bans in Chicago and five of its suburbs. After gun-banning Wilmette, Ill., prosecuted resident Hale DeMar for using a handgun to protect his family from a repeat violent home invader, the 2004 Illinois legislature overwhelmingly voted to prohibit gun ban prosecution of people who actually used a gun for lawful self-defense on their own property. However, Obama voted “no,” and complained that the self-defense law would erode the local handgun bans.

In the Pennsylvania Democratic primary debate, Obama refused to answer a question about his opinion on the Heller case; he claimed he had not read all the briefs, and that he does not comment on pending cases. But in fact, Obama had filed an amicus brief in a different Supreme Court case that very same term.

Notably, Obama refused to join his 55 Senate colleagues, from both parties, who filed an amicus brief with the Supreme Court, urging the justices to respect the Second Amendment and overturn the D.C. ban.

In November 2007, after the Supreme Court agreed to hear the Heller case, the Obama campaign told the Chicago Tribune that “Obama believes the D.C. handgun law is constitutional” and that “local communities” should have the ability “to enact common sense laws.”

On the day the U.S. Supreme Court announced its decision in District of Columbia v. Heller, Obama announced that he agreed with its decision. His campaign claimed that the November2007 statement about supporting the D.C. ban was “inartful.” Not that the 2007 statement was incorrect in expressing Obama’s views—just “inartful.” Apparently the campaign spokesperson had not done a good enough job of obfuscating Obama’s position.

So, Obama was for the D.C. handgun ban before he was “against” it. Even post-Heller, he stood by the Chicago handgun ban, declaring, “What works in Chicago may not work in Cheyenne.”

Obama’s campaign website says that he believes in the Second Amendment “for the purposes of hunting and target shooting.” The right to defend your family from violent intruders, or to use guns for any other form of self-defense, is conspicuously absent.

All these examples of Obama’s antigun activism raise a very important question: What kind of Supreme Court justices would Obama appoint? We know that he voted against confirmation of the eminently qualified John Roberts and Samuel Alito.

In the July 26 National Journal, Stuart Taylor, perhaps the best Supreme Court reporter in the U.S., listed some of the top names being mentioned as Obama Supreme Court nominees:

Cass Sunstein is a professor at the University of Chicago Law School and a former faculty colleague of Obama’s.  Sunstein’s book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, criticizes judicial “fundamentalists” such as Justices Scalia and Thomas, who believe that the Second Amendment protects an individual right. Sunstein argues that the original intent of the Second Amendment was to affirm a militia duty, not to protect a broad personal right.

He acknowledges that many people today believe they have a personal right to arms, and says that courts should make some concession to the popular view—but should interpret the right narrowly. That’s perfectly in line with Obama’s Second Amendment: Claim that you respect the individual right, but interpret so that it permits bans on owning guns, carrying guns and selling guns.

Merrick Garland is a judge on the U.S. Court of Appeals for the D.C. Circuit. He could be counted on not only to oppose Second Amendment rights in general, but even to nullify explicit congressional statutes that protect those rights.

In 2007, a three-judge panel of the D.C. Circuit ruled against the D.C. handgun ban in the case of Parker v. District of Columbia (which was the name of the case that eventually became District of Columbia v. Heller when it went before the Supreme Court). The D.C. government asked for a rehearing of the case, before all 10 judges of the D.C. Circuit.

Six judges voted not to rehear the case, while four judges voted for a rehearing, presumably because they disagreed with the three-judge panel that had ruled against the handgun ban. Garland was one of the four judges who wanted a chance to validate the handgun ban.

In 2000, Garland was on a three-judge panel that heard the case of NRA v. Reno. In that case, the Janet Reno Department of Justice had flouted the congressional statutes that prohibit the federal government from compiling a registration list of gun owners, and which required the destruction of national instant check (NICS) records of lawful, approved gun purchases.

Judge Garland voted to let Reno get away with it. He said that registering all the people who were approved by NICS was permissible because Reno was not registering every gun owner in the country. And he said it was fine for Reno to keep gun buyer records for six months because although Congress had said the records must be destroyed, it did not say “immediately.”

Sonia Sotomayor is a judge on the federal Second Circuit Court of Appeals, which covers New York state, Connecticut and Vermont. According to Sotomayor, “the right to possess a gun is clearly not a fundamental right.” (U.S. v. Sanchez-Villar, 2004).

Eric Holder Jr. is a co-chair of the Obama campaign. Under Janet Reno, he served as deputy attorney general.

In D.C. v. Heller, Holder joined the Reno-led amicus brief, which urged the Supreme Court to uphold the handgun ban and claimed that the Department of Justice from Franklin Roosevelt through Bill Clinton had always believed that the Second Amendment does not protect any rights of individuals to own guns for personal use.

After the D.C. Circuit ruled against the handgun ban, Holder complained that the decision “opens the door to more people having more access to guns and putting guns on the streets.”

Another name on the Obama Supreme Court list is Sen. Hillary Rodham Clinton. Of course, her record on the Second Amendment speaks for itself.

Things get even worse when you consider some of the names being floated for President Obama’s cabinet.

From a Second Amendment viewpoint, the most important cabinet position is that of attorney general. He or she sets the legal policy for the entire Department of Justice, and supervises the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) and the Federal Bureau of Investigation (FBI).

One attorney general possibility is Obama’s good friend Deval Patrick, the governor of Massachusetts. Before being elected governor, Patrick served as assistant attorney general for the civil rights division under the Clinton/Reno regime.

After law school, Patrick worked as a law clerk for Judge Stephen Reinhardt of the federal Ninth Circuit Court of Appeals. The vehemently anti-gun Reinhardt wrote the opinion in Silveira v. Lockyer declaring that the Second Amendment protects a collective right, not an individual one.

Patrick later served as an attorney for the NAACP Legal Defense and Educational Fund—an organization that filed an amicus brief in Heller urging that the Supreme Court uphold the handgun ban.

In his 2006 run for governor of Massachusetts, Patrick received a “D” rating from the NRA Political Victory Fund (NRA-PVF). As governor, he is showing that he certainly deserved the rating, working to push through a huge increase in the state’s already high fees on gun ownership. In Massachusetts, possession of a single cartridge, or a firearm, without a state permit means a mandatory year in state prison. So, any resident of any adjacent state who might occasionally want to go target shooting with Massachusetts friends—or to stay out of prison should a single forgotten round be found in his car while he is driving through the state—needs a Massachusetts permit. The current $100 fee for a one-year permit is bad enough, but Patrick wants to raise it to $250.

The secretary of the interior has authority over vast amounts of land used for hunting and target shooting. Over the last two decades, many gun ranges have been closed down by expanding urbanization. Accordingly, the national lands constitute one of the few remaining areas for many Americans to practice gun safety. An anti-gun secretary of the interior could decimate recreational shooting and hunting on public lands.

Tom Daschle could be such a secretary. Elected U.S. senator from South Dakota in 1984 with an “A” rating from NRA-PVF, Daschle quickly began breaking promises after he got settled in Washington. By the time of his 2004 re-election race, his NRA-PVF rating was “F+,” and he lost a close race—largely because of a massive effort by NRA activists.

All of these Obama scenarios might remind readers of the Bill Clinton administration. Note, however, there would be one major difference—and it’s an important one.

In an Obama administration, while judicial appointees, cabinet officers and the president work to destroy your gun rights, they will make sure to tell you how much they respect the Second Amendment.


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