Scalia Saving Obama

WASHINGTON, D.C. — After months of claiming insufficient information to express an opinion on the District of Columbia gun law, Barack Obama noted with apparent approval Thursday that the Supreme Court ruled the 32-year ban on handguns "went too far." But what would he have said had the high court's five-to-four majority gone the other way and affirmed the law? Obama's strategists can only thank swing Justice Anthony Kennedy for enabling Justice Antonin Scalia's majority opinion to take the Democratic presidential candidate off the hook.

Such relief is typified by a vigorous supporter of Obama who advised Al Gore in his 2000 presidential campaign. Believing Gore's gun-control advocacy lost him West Virginia and the presidency, this prominent Democrat told me: "I don't want that to happen with Obama — to be defeated on an issue that is not important to us and is not a political winner for us." He would not be quoted by name because he did not want abuse heaped on him by gun-control activists.

This political reality explains the minuet on the D.C. gun issue danced all year by Obama. Liberal Democrats who publicly deride the National Rifle Association privately fear the NRA as the most potent of conservative interest group. Many white men with NRA decals on their vehicles are labor union members whose votes Obama needs in West Virginia, Ohio, Pennsylvania and Michigan. That is why Obama did not share the outrage of his supporter Washington Mayor Adrian Fenty over the Supreme Court's decision.

What may be Obama's authentic position on gun rights was revealed in early April when he told a closed-door Silicon Valley fundraiser that "bitter" small-town residents "cling" to the Bible and Second Amendment. That ran against his public assertion as a former constitutional law professor that the Constitution guarantees rights for individual gun owners, not just group rights for state militias. But his legal opinion forced Obama into a political corner.

The case before the Supreme Court pleading for the D.C.

gun ban was based entirely on the argument that the Constitution's rights applied only to state militias. During oral arguments March 18, Justice Ruth Bader Ginsburg asked whether the Second Amendment has "any effect today as a restraint on legislation," since such militias no longer exist. Walter Dellinger, a former solicitor general representing the District of Columbia, replied that "it doesn't," adding, "You don't make up a new use for an amendment whose prohibitions aren't being violated."

Obama's dilemma was that his reading of a Second Amendment that "means something" made it difficult for him to say the D.C. law was constitutional. His public pronouncements were so imprecise that The Associated Press misreported him at a February press conference in Milwaukee saying he "voiced support" for the ban.

In March and April, I tried unsuccessfully for weeks to get a simple "yes" or "no" from Obama on constitutionality. When the question for the first time was put to him directly at ABC's Philadelphia presidential debate on April 16, he answered, "I confess I obviously haven't listened to the briefs and looked at all the evidence." On National Public Radio April 21 the day before the Pennsylvania primary, Obama said, "I don't know all the details and specifics of the D.C. gun law." He had not been asked and had not volunteered his opinion prior to Thursday's decision.

The issue will return when Chicago's handgun ban, modeled after the Washington law, is challenged in the courts. As a Chicago lawyer, Obama can hardly plead ignorance as he did concerning the D.C. gun ban. But with the case wending its way back to the Supreme Court for the next year, Obama will not have to answer the question before the November election.

While Scalia's opinion for now saves Obama from defending a court that had emasculated gun rights, one inconvenient truth confronts the candidate. He has made clear that as president he would nominate Supreme Court justices who agree with the minority of four that the Second Amendment is meaningless. Would he want a reconstituted court to roll back the District of Columbia decision when the Chicago case gets there?

To find out more about Robert D. Novak and read his past columns, visit the Creators Syndicate web page at www.creators.com.

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