Obama's Toothless Second Amendment

"What works in Chicago may not work in Cheyenne," Barack Obama said after the U.S. Supreme Court overturned the Washington, D.C., gun ban. The Illinois senator was talking about gun control laws, but he could just as well have been talking about his interpretation of the Second Amendment.

Although the amendment protects an individual right to arms, Obama says, it permits "common-sense" gun control, a category that for him seems to include every existing restriction on the possession and use of firearms. That view not only does not fly in Cheyenne (and in many other places where presidential candidates aspire to win votes); it was decisively rejected by the Supreme Court.

"I have always believed that the Second Amendment protects the right of individuals to bear arms," Obama said after the ruling was announced, "but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view."

Not quite. The Court concluded that the D.C. gun law, which "bans handgun possession in the home" and "requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable," violates the Second Amendment because it effectively prohibits keeping guns for self-defense.

Last November, by contrast, Obama's campaign told the Chicago Tribune "Obama believes the D.C. handgun law is constitutional." The candidate was so upset about that misrepresentation of his views that he sought to correct it — seven months later. A few hours before the Supreme Court pronounced the D.C. gun ban unconstitutional, an Obama spokesman told "ABC News" his campaign's November statement to the contrary "was obviously an inartful attempt to explain the senator's consistent position."

That belated blurification was an inartful attempt to avoid explaining the senator's consistent position, which he has repeatedly confirmed.

In a Feb. 12 interview, Leon Harris of WJLA, the ABC affiliate in Washington, said to Obama, "You support the D.C. handgun ban, and you've said that it's constitutional." Obama nodded, saying, "Right, right." Three days later, at a press conference in Milwaukee, Obama cited the D.C. law as an example of gun control that's consistent with the Second Amendment.

Obama's view is similar to that of Justice Stephen Breyer, who dissented from the Supreme Court's decision. Even if the Second Amendment protects an individual right to armed self-defense, Breyer said, that right has to be weighed against "other important governmental interests." And since a gun law like D.C.'s might reduce violent crime (never mind the lack of evidence that it actually has), the courts should yield to legislators' judgments about how best to strike the balance.

Writing for the majority, Justice Antonin Scalia replied: "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach. The very enumeration of the right takes out of the hands of government … the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all."

This decision does not bode well for Chicago's handgun ban, which was challenged in federal court the day after the Supreme Court's ruling. Since the Court held that D.C. violated the Second Amendment by banning the sort of gun most people prefer for home defense, the only real question in the Chicago case is whether the amendment applies to state and local governments as well as federal domains such as the District of Columbia.

It seems likely that the right to arms — which, Scalia emphasized, stems from the basic right of self-preservation — will be added to the list of civil liberties that the 14th Amendment compels states and municipalities to respect. If so, Obama's vision of a toothless Second Amendment will not prevail for much longer, even in Chicago.

Jacob Sullum is a senior editor at Reason magazine, and his work appears in the new Reason anthology "Choice" (BenBella Books). To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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