FactCheck flubs Obama gun fact check

David Kopel

The Volokh Conspiracy weblog.  September 23, 2008 at 4:32pm. More by Kopel on The Age of Obama.

FactCheck.org is an excellent project of the Annenberg Public Policy Center of the University of Pennsylvania. It a non-partisan organization which provides factual evaluations of the claims of and about political figures. I have cited it in my own writing, and will continue to do so. However, that FactCheck has a well-deserved reputation for accuracy and good judgment does not mean that its work is infallible, as the VC has pointed out previously. The Encyclopedia Britannica also has a well-deserved reputation for accuracy and impartiality, but the Britannica sometimes contains errors or overstatements.

FactCheck's September 22, 2008, report on the National Rifle Association's advertising critical claims that the NRA "distorts Obama's position on gun control beyond recognition." FactCheck itself, though, has overstated its claims, and made several errors.

The NRA's advertising points to various positions which Obama has taken over the years. Not one of these positions (with a single very dubious exception, discussed below) has been subsequently repudiated by Obama.

Much of FactCheck's critique of the NRA is the mere recitation of vague platitudes by Obama claiming that he supports of the Second Amendment.

FactCheck fails to recognize that Obama's platitudes and the NRA's charges could be simultaneously true. For example, John McCain might sincerely say, "I strongly support First Amendment rights." A group critical of McCain might take out advertising which says "McCain sponsored the most comprehensive restriction of political speech in American history, and he is an opponent of your First Amendment rights." All the statement are true: McCain sponsored the McCain-Feingold act, which outlaws a great deal of speech related to federal elections; people who are strong First Amendment advocates can therefore conclude that McCain is a very serious threat to First Amendment rights. McCain, however, is doubtless sincere in his belief that the political speech restrictions are consistent with his support for First Amendment rights. His First Amendment is simply much smaller than the First Amendment which free speech groups like the ACLU support. FactCheck would be incorrect if it declared that the free speech group was making "false" charges which "distorted" McCain's views.

Likewise, the NRA is not distorting Obama's record when they accurately point out his advocacy for draconian gun controls, even if Obama offers generic platitudes about Second Amendment rights. Obama may sincerely believe that the various measures he has promoted are consistent with the Second Amendment; the NRA disagrees, and it is not factually inaccurate for the NRA to say so.

On some of the charges, FactCheck appears not to have studied Obama's words carefully. For example, one NRA claim is that Obama wants to "Ban the Manufacture, Sale and Possession of Handguns." FactCheck accurately reports that Obama did endorse such a position in his 1996 Illinois State Senate race. (FactCheck also supplies the details of Obama's 2008 claim that the questionnaire was filled out by an aide without Obama's knowledge, even though Obama's handwriting is on the cover of the questionnaire.) But FactCheck asserts that the NRA is lying because of Obama's response to the same question in 2003: "While a complete ban on handguns is not politically practicable, I believe reasonable restrictions on the sale and possession of handguns are necessary to protect the public safety."

The 2003 response hardly means that Obama does not favor a handgun ban. He simply said he recognized it as politically impracticable. A candidate can simultaneously support something, and consider it "politically impracticable." For example, in a 1997 Connecticut Law Review article, Glenn Reynolds and I wrote in favor the historic and textual interpretation of the Congressional power over interstate commerce: that it applies to commercial activities conducted across state lines, and to the regulation of activities which are "necessary and proper" for regulating interstate commerce. Thus, I think that laws about who can possess guns (e.g., persons convicted of particular crimes, children, alcoholics, etc.) should be matters of state law, not federal law. (With the caveats that state laws cannot violate the Second Amendment, and that other federal powers might be legitimately used in certain situations; for example, congressional power over immigration might be an appropriate basis for a federal restriction on gun possession by illegal aliens.)

If I were running for Congress in 2008, and somebody asked "Do you favor repealing federal laws about the mere intrastate possession of guns?" I would probably explain that a complete repeal is "not politically practicable," and would say that I would work instead for marginal improvements in the laws.

Now suppose my opponent puts out a brochure which says "Kopel favors repeal of federal laws on gun possession." Is the opponent distorting my position beyond recognition? Well, probably not.

A good FactCheck article would point out the difference between my 1997 position and my current statement on what is "politically practicable." But my very choice of the words "politically practicable" indicates that if political circumstances changed, so that a broad repeal were politically practicable, then I would support it.

Conversely, if I (or, Obama or McCain) were asked "Do you think that the federal government should require journalists to get a government license?" the response would not be "Licensing journalists is not politically practicable, but there are other steps the government could take to improve media quality."

So Obama's 2003 acknowledgement that handgun prohibition was not "politically practicable" (at least for a U.S. Senate term that would begin in 2005) is consistent with support for handgun prohibition.

FactCheck concludes the section by citing Obama's claim at an April 2008 debate "I have never favored an all-out ban on handguns." The claim is, to say the least, highly dubious in light of the evidence about his 1996 questionnaire, and FactCheck should not have treated this dubious claim as the final word on the subject. FactCheck failed to report that during the Potomac Primaries a few weeks earlier, Obama had said that he supported the D.C. handgun ban, and considered it consistent with the Second Amendment

FactCheck also overlooked the Obama campaign's statement when the Supreme Court granted cert. in the D.C. handgun case: "Obama believes the D.C. handgun law is constitutional" and that "local communities" should have the ability "to enact common sense laws." (Chicago Tribune, Nov. 20, 2007.)

On the day the U.S. Supreme Court announced its decision in District of Columbia v. Heller, Obama campaign announced that he agreed with the Court's decision because it affirmed an individual right. (The full quote is reproduced in another section of the FactCheck report.) Notably, Obama did not say that he agreed with the Court's interpretation that the handgun ban was a violation of the individual right. Asked about the November 2007 statement supporting the D.C. ban, the campaign called the statement "inartful." Not an inaccurate expression of Obama's views--just "inartful."

In sum, FactCheck's label of "False" for the NRA's statement that Obama supports laws to "Ban the Manufacture, Sale and Possession of Handguns" was based on sloppy reading of some of Obama's statements, and failure to report other statements explicitly in favor of handgun prohibition.

A similar error is repeated for "Mandate a Government-Issued License to Purchase a Firearm", which FactCheck calls "Misleading." FactCheck quotes a Jan. 15, 2008, interview with the late Tim Russert:

NBC's Tim Russert, Jan. 15: Senator Obama, when you were in the state senate, you talked about licensing and registering gun owners. Would you do that as president?
Obama: I don't think that we can get that done.
Obama then went on to list some things which thought could be done. The phrase "I don't think we can get that done" has the same import as "not politically practicable." It does not convey opposition to the idea.

The NRA claims that Obama's position includes: "Ban use of Firearms for Home Self-Defense." FactCheck says this is "False." FactCheck discusses Obama's opposition to an Illinois bill to prevent localities with handgun bans from punishing a person who used a handgun in lawful self-defense on his or her own property. Obama's statements in opposition to the bill (which are not quoted by FactCheck) explained that he was worried that the bill would erode local handgun bans. (At the time, Chicago and five of its suburbs banned handguns.)

FactCheck writes: "Letting the owner of an unregistered firearm escape the penalty for failing to register is one thing, but it's another thing entirely to make it a crime to use any firearm – registered or not – in self-defense." Well, if you ban a person from having a handgun at all, you are certainly banning them from using it for self-defense in the home.

Moreover, the Washington, D.C., gun law--which Obama supported--forbade the use of any firearm in the home for self-defense. (Including a registered rifle, a registered shotgun, or a pre-1976 registered handgun legally possessed under the grandfather clause). The Supreme Court later declared the self-defense ban to be unconstitutional.

Another NRA claim which FactCheck says is "False" is: "Ban Rifle Ammunition Commonly Used for Hunting and Sport Shooting." As FactCheck reports, the issue involves Obama's support for legislation to expand the federal definition of armor-piercing ammunition. Almost all rifle ammunition used for hunting deer or larger animals will penetrate a bullet-resistant vest; such vests are designed to stop handgun ammunition, not rifle ammunition. (In part because rifles have longer barrels, their bullets generally have greater velocity, and hence greater kinetic energy, than handgun bullets.)

Obama supported a bill to give the Attorney General the administrative authority to ban any rifle ammunition which can penetrate the type of vests commonly used by police.

FactCheck accurately quoted a limitation in the bill: it would apply only to ammunition which is "designed or marketed as having armor piercing capability." The "marketed" prong is easy, since rifle ammunition makers do not tout such capability in their advertising.

However, the "designed" language is broad enough to allow bans on anything. Almost every automobile in the United States is "designed" to drive over 100 miles per hour. The speedometers show this capability, and even if they did not, every automobile manufacturer is fully aware that its autos can be driven at very fast, unsafe speeds. The auto engines are "designed" to have a certain amount of power, and this "design" is based on the full knowledge that that auto can be driven over 100 mph. Among the definitions of "design" in Black's Law Dictionary is "The pattern or configuration of elements in something, such as a work of art."

Just as the deliberate configuration of the elements of every automobile can be accurately said to be "designed" to drive over 100 mph, so every deer-hunting round can be said to be "designed" to penetrate body armor. Notably, the ammunition ban language did not say "designed and intended."

FactCheck does quote Senator Kennedy, the sponsor of the bill, saying that he did not want to ban hunting ammunition. Nevertheless, the plain language of the bill, and not Senator Kennedy's floor statements, were what would be enacted into law. If there were ever a judicial challenge to ban on particular rifle ammunition ban, a court might well find that the language of the statute, along with judicial deference to agency interpretation of the statute, meant that there was no need to look to legislative history.

FactCheck give NRA a "Partly True" for: "Expand the Clinton Semi-Auto Weapons Ban to Include Millions More Firearms." FactCheck agrees that Obama has declared his support for "assault weapon" bans, because he think that "assault weapons" are guns which belong only on "foreign battlefields." But FactCheck adds: "We're not sure where the NRA gets its claim that 'millions' of additional weapons would be covered." The answer is straightforward, in the Illinois legislature, Obama for SB 1195, which defines "assault weapons" much more broadly than the 1994 federal law. It included double-barrel and break-open shotguns in 28 gauge caliber and larger; and also banned .50 caliber rifles.

The FactCheck gives the NRA a rating of "Uncertain" to "Increase Federal Taxes on Guns and Ammunition by 500 Percent" and "Close Down 90 Percent of Gun Shops in America." Both these statements, FactCheck correctly reports, come from a newspaper report of Obama's 1999 description his gun control plan. (Chicago Defender, Dec. 13, 1999.) (At the time, he was running for the U.S. House of Representatives.) FactCheck notes that Obama has not pushed for these proposals since his election to the Senate, and adds, "We asked the Obama campaign about his position on an ammunition tax but have received no response."

"Uncertain" is an awfully generous label, Obama-wise. Obama clearly announced he supported the particular policies. He has never said that he has changed his mind on those policies. His campaign was specifically offered a chance by FactCheck to say whether Obama had changed his mind, and the campaign refused.

Just because Obama is not pushing for something in Congress does not make the NRA's claim uncertain. FactCheck gives NRA a "True" for "Pass Federal Laws Eliminating Your Right-to-Carry." Illinois and Wisconsin are the only two states which do not have procedures for issuing concealed handgun carry permits. (40 states issue under mostly objective standards, while 8 states give nearly limitless discretion to the issuing authority.) In the 2004 U.S. Senate campaign, Obama said he favored a national ban on concealed carry permits. Like the carry ban, the bans on gun stores and the 500% firearm and ammunition tax proposals do not become less true simply because Obama is not pushing them at present.

The NRA gets a "Mostly True" for "Restore Voting Rights for Five Million Criminals Including Those Who Have been Convicted of Using a Gun to Commit a Violent Crime." FactCheck points to the relevant bill co-sponsored by Obama, and cites the Sentencing Project for the fact that 5.3 million felons who have served their sentences cannot vote. The Sentencing Project pointed out that most felony convictions are not for violent or gun crimes. So the NRA claim is "Entirely True." The NRA never asserted that most felony convictions are for violent gun crimes.

"Unsupported" is how FactCheck describes: "Appoint Judges to the U.S. Supreme Court and Federal Judiciary Who Share His Views on the Second Amendment." FactCheck's reasoning is that "the NRA can point to no statement by Obama calling for a Second-Amendment test for his judicial appointees, and we could find none."

That Obama has not announced a litmus test does not mean that it is unrealistic to expect him to appoint Justices who share his views on Second Amendment and on other matters of constitutional law. It would be reasonably expected that Obama appointees would take a similar approach of nominal support for the individual right, but finding that hardly any gun controls short of complete prohibition violate that right.

One final NRA claim does not get a FactCheck rating, but it does get a response that might as well as come from the Obama press office. That is: "Obama would be the most anti-gun president in American history."

FactCheck supplies Obama's quote from Heller decision day, beginning with "I have always believed that the Second Amendment protects the right of individuals to bear arms..", and promising, "As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne."

Well, that Obama has "always believed" in the individual Second Amendment right did not prevent him from proposing a national ban on concealed carry, a ban on 90% of gun stores, a 500% tax increase on firearms and ammunition--as the FactCheck article itself reports. If a candidate proposed banning 90% of bookstores and a huge tax increase on books, it might be justifiable to predict that he would be "the most anti-book president in American history"--notwithstanding his proclaimed belief in the individual First Amendment right.

FactCheck calls the NRA prediction, "a pretty tall statement. We don't know how George Washington, John Adams or Thomas Jefferson might have felt about armor-piercing ammunition or assault weapons."

Fortunately, there haven't been many anti-gun Presidents, in U.S. history; and only the Clinton administration invested a large portion of its political capital in gun control. So President Obama would not have much competition in the "most anti-gun" contest.

We know that Washington and Jefferson were avid gun collectors, and that Jefferson recommended daily hunting as the best form of exercise. We also know that Jefferson instituted a government program to supply guns, at federal expense, to people who couldn't own one. We know that neither Washington, nor Adams, nor Jefferson ever proposed banning a type of gun simply because it was useful on "battlefields."

As far as we know, Obama has never fired a gun, or even held a gun in his hands. We do know that no President in American history has, in his pre-presidential career, endorsed so many sweeping prohibitions and other severe controls on American gun ownership.

The September 22, 2008, FactCheck on the NRA criticism of Obama is marred by the omission of crucial facts, one-sided and misleading presentations of issues, and thinly-concealed political advocacy. According to FactCheck, the NRA refused to answer FactCheck's request for explanations of its claims. If so, the refusal provides a partial explanation of why so many crucial facts were missing. Whatever the reasons behind the problems in the September 22 report, FactCheck should publish a substantially revised edition.

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