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February 15, 2008

Obama Tries to Have it Both Ways on the Second Amendment

by Stephen Littau

MILWAUKEE (AP) — Barack Obama said Friday that the country must do “whatever it takes” to eradicate gun violence following a campus shooting in his home state, but he believes in an individual’s right to bear arms.

Obama said he spoke to Northern Illinois University’s president Friday morning by phone and offered whatever help his Senate office could provide in the investigation and improving campus security. The Democratic presidential candidate spoke about the Illinois shooting to reporters while campaigning in neighboring Wisconsin.

The senator, a former constitutional law instructor, said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

When I ran across the headline’s article “Obama supports individual gun rights” in The Rocky Mountain News, I knew I had to read further. So far, so good…so what:

“I think there is an individual right to bear arms, but it’s subject to commonsense regulation” like background checks, [Obama] said during a news conference.”

He said he would support federal legislation based on a California law that would facilitate immediate tracing of bullets used in a crime. He said even though the California law was passed over the strong objection of the National Rifle Association, he thinks it’s the type of law that gun owners and crime victims can get behind.

To be honest, I don’t know anything about this particular policy [if anyone can give me a Cliff’s Notes version, please fill me in]. Being able to trace bullets used in a crime back to a particular firearm…I thought this was already an accepted, common practice? I must be missing something; clearly if the NRA is opposed to this policy maybe we should look at it.

So Obama believes that the right to bear arms is an individual right (more than we can say about most Democrats) but also believes in “common sense regulation.” Surely, Obama would not consider the D.C. gun ban to be common sense…or would he?

Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people’s guns.

At his news conference, he voiced support for the District of Columbia’s ban on handguns, which is scheduled to be heard by the Supreme Court next month.

“The notion that somehow local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born [sic] out by our Constitution,” Obama said.

Now I’m really confused! The only thing I can figure is that Obama’s views on gun rights are based on what he thinks his supporters want to hear at any given moment (in other words, he’s being a politician). Obama’s comments also reveal a fundamental misunderstanding about the Constitution on his part. The right to bear arms, or any of the other rights found in the Constitution for that matter, are not “born out” of the Constitution; the Constitution merely recognizes individual rights which already exist.

Given these seemingly contradictory statements, one wonders what policies an Obama administration would support and what sort of judicial appointments Obama would make with regard to the 2nd Amendment.

***Correction***

Brad pointed out that the journalist likely misinterpreted Obama’s statement:

The notion that somehow local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born [sic] out by our Constitution.

What Obama likely meant was “borne out by our Constitution” meaning “supported by our Constitution” rather than “born of our Constitution.” While Brad and I both disagree with Obama on this point even as he likely intended it, I think it’s important that we try to represent the senator’s remarks accurately.

Elsewhere in the article there was this:

The senator, a former constitutional law instructor, said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

Here again, it’s the journalist’s interpretation (Nedra Pickler in this case) of what she thought Obama said. Hopefully, Obama knows better since he is a former constitutional law instructor (though I’m sure that there are many constitutional law instructors who actually do believe the Constitution grants rights rather than recognizes their existence). The only way to determine if the journalist correctly interpreted Obama’s speech would be to find a transcript of the speech. So far, I have been unable to find one but when I do I will link the transcript to this post so readers can decide for themselves whether Pickler’s interpretation of Obama’s speech is correct or not.

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16 Comments

  1. It may very well be that he is pandering here. However, FWIW, there is a widely held opinion amongst liberal Con. Law scholars that the 2nd Amendment is not incorporated in 14th Amendment substantive due process.

    I’ve always found this definition of substantive due process to be arbitrary of course – the idea that some rights explicitly in the Bill of Rights are not incorporated, while other rights not explicitly in the Bill of Rights are incorporated is idiotic. Nonetheless, it is a viewpoint that I encountered in law school and that is held by a large number of Con. Law professors.

    Comment by Mark — February 15, 2008 @ 12:17 pm
  2. There was a policy (that I thought was a federal policy) that gun manufacturers had to test fire a bullet out of each gun and provide that bullet to the ATF so they could use ballistics to match a bullet to a gun.

    Comment by Brian — February 15, 2008 @ 12:43 pm
  3. Stephen,

    I agree with you on the merits of this post, but the usage of “born out”, which should actually be “borne out” but the journalist doesn’t get language, is not how you interpreted it.

    “Borne out by the Constitution”, as it’s used here, would mean “supported by the Constitution”. So he’s saying the Constitution doesn’t preclude a city like DC from implementing these restrictions.

    He’s wrong, of course, but the context only works if he’s saying something completely different from suggesting that rights are “born of” the Constitution.

    Comment by Brad Warbiany — February 15, 2008 @ 1:20 pm
  4. Thanks Brad; good eye. My interpretation of what Obama said was based on the journalist’s spelling (this explains why I got the blue squiggly line under the word “born” when I copied and pasted that part of the article into Word). Elsewhere in the article there was this:

    The senator, a former constitutional law instructor, said some scholars argue the Second
    Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

    Here again, it’s the journalist’s interpretation(Nedra Pickler in this case) of what she thought Obama said. Hopefully, Obama knows better since he is a former constitutional law instructor (though I’m sure that there are many constitutional law instructors who actually do believe the Constitution grants rights rather than recognizes their existence). The only way to determine if the journalist correctly interpreted Obama’s speech would be to find a transcript of the speech. I guess I have a new project; thanks a lot Brad : )

    Comment by Stephen Littau — February 15, 2008 @ 2:04 pm
  5. What he is referring to is called “microstamping”, a technology which impresses the serial number of the weapon that fired a round, into the primer and shell casing.

    It doesn’t work, AND it’s very expensive. Aditionally, it would make many firearm modifications illegal.

    The real purpose of it is to assert more control, not to help solve crimes.

    Oh and if you’ve paid any attention to it (most folks havent), over the past few years the FBI has admitted to hundreds of instances of essentailly fraud in ballistics matching.

    Independent testing has confirmed that so called “ballistic fingerprinting” has anywhere from a 10% to a 50% error rate… Essentially forensics has no better than random chance at identifying a particular bullet as fired from a particular guns; and even less chance to identify a particular shell casing.

    The FBI, and several large police departments (including the NYPD and LAPD) have been forced to admit such in open court.

    To pile on just a bit more, two years ago, the California department of justice was forced to admit than in all the time their ballistic database has operated, and for all the money they’ve spent (about 2 billion dollars), and privacy they’ve invaded, they’ve only ever helped solve 14 crimes with it. Of those, only two were actual murders.

    Canada instituted a similar system in the mid 90s, and after 10 years, and 10 billion spent on it, recently abandoned it. In its entire existence, it had not helped solve a single crime.

    Comment by Chris — February 15, 2008 @ 2:47 pm
  6. Brian, there is no federal policy or database for fired cases and bullets for all guns; in fact such a database would be illegal under current law.

    Several states, including Massachusetts, New York, and California (there are others, but those are the biggies) do have such a requirement. When all new guns are purchased, the seller must submit the factory fired shell casing to the state police, or department of justice.

    In the well over 1 million (exact numbers are hard to fine here) firearms that have had such treatment, at most several hundred crimes have been solved in this way (again, exact numbers are hard to come by, but no-one is credibly arguing it to be more than several hundred).

    Canada has had the same policy up until this year, and of the 500,000 or so firearms registered in such a fashion, not one single crime was solved with the aid of the system.

    Comment by Chris — February 15, 2008 @ 2:51 pm
  7. Chris, that’s some very interesting information. I have always been under the impression that ballistic fingerprinting was as reliable as…well, a fingerprint. Do you have any sources you can link concerning any of this? I would really like to take a look.

    Comment by Stephen Littau — February 15, 2008 @ 3:02 pm
  8. Fix gun dealers, they are the problem. It might be worth having A LOT of conversation on why someone is purchasing guns while they are in the gun store. For public safety, instead of the eagerness for a sale.

    Shotgun purchase, does that person have a hunting license? Looking for a hunter safety training class? Handgun(s), taking gun training courses anywhere? Any threats or protection issues?

    Maybe every gun dealer should have degreed psychologist behind the counter. Someone with Masters degree in sociology.

    Gun dealers falsifying records, losing track of weapons or not asking questions of gun purchases, if a crime occured, it’s a misdemeanor.

    Guns sold retail become criminals tools very quickly. There is something wrong at the gun store. Because its a federal legal purchase, that’s not good enough. Straw buyers are a problem.

    It’s amazing how drivers need a ride along when getting a license. Driver nervous and bad handling a car gets scrutiny.

    A gun is purchased with bullets, sent out the door and no guidance required.

    Thanks NRA for allowing too many guns in the wrong hands. Not enough scrutiny at the gun store. No background check at gun shows.

    No state records kept of gun transfers between people.

    The 2nd Amendment right to own arms doesn’t mean they should be sold, transferred and used irresponsibly.

    Comment by Marks — February 15, 2008 @ 3:35 pm
  9. Stephen,

    A few sources:

    California DOJ’sstudy on the effectiveness of ballistic fingerprinting [PDF]

    George Krivosta’s (Suffolk Co Crime Lab) report on microstamping [PDF]

    Comment by Brian T. Traylor — February 16, 2008 @ 6:59 am
  10. Stephen,

    A few sources:

    California DOJ’s study on the effectiveness of ballistic fingerprinting [PDF]

    George Krivosta’s (Suffolk Co Crime Lab) report on microstamping [PDF]

    Apologies for the html error in the previous post.

    Comment by Brian T. Traylor — February 16, 2008 @ 7:00 am
  11. You may be interested in another mythical way of tracking bullets that was recently debunked: bullet lead analysis.

    http://www.cbsnews.com/stories/2007/11/16/60minutes/main3512453.shtml

    Comment by AlanDP — February 16, 2008 @ 11:55 am
  12. regarding the rant about gun dealers being the problem…..I’ve worked in a gun shop,try having a suspicious person in store…go ahead call the paper cops at ATF,go ahead,you know what they’ll say?”Uh…send in the paperwork ,we’ll take a look at it.”BTW if you want to be helpful,advocate the absolute right of a store/dealer to refuse sales/service,without criminal/civil liability to ANYONE they wish,that would be helpful.As for offenses by gun dealers,you should be aware that most of them are administrative in nature …and if only the feds would pursue the bad guys with such zeal.And as for the standard wicked NRA remark,you should know that at a gun show the sales are run by the FBI(as in record check).the only exception(varies by state) would be if someone was liquidating a private collection.finally ,you do know that the supreme court has held that bad guys dont have to comply with registration etc dont you.5th amendment ya know.So by definition all these bright ideas only apply to noncriminals anyway.

    Comment by david shaw — February 16, 2008 @ 2:21 pm
  13. Ballistics fingerprinting is definitely overrated and falsely glamorized by TV. I took a course in forensics back in law school (taught by James Starr, no less) in which we discussed a lot of these problems at length. Even when ballistics fingerprinting works, it can take literally days of sitting at a microscope to match the striations up closely enough to confirm the identity of the gun. This is of course an extremely costly and time consuming practice.
    I have no idea whether stamping on bullets would be of much value to investigators, and so I don’t offer an opinion on that. But ballistics fingerprinting is one of a number of areas that are badly misunderstood thanks to shows like CSI.

    Comment by Mark — February 17, 2008 @ 6:30 pm
  14. I personally received an email from Mr. Obama which I was sort of surprised at. It was personalized to me and directly addressed my questions regarding gun control. That was the only part of it liked. Basically Mr. Obama is for another assault weapons ban, along with a grip of other Brady Bunch hokey pokey. Buy’em now because if another assault weapons ban gets passed it likely won’t have a sunset provision in it.

    Comment by TAO — February 18, 2008 @ 9:40 am
  15. [...] Tries to Have it Both Ways on the Second Amendment February 15th, 2008 Ken Shepherd wrote an interesting post today onHere’s a quick excerptMILWAUKEE (AP) — Barack Obama said [...]

    Pingback by Presidential election 2008 |Republicans Vs. Democrats » Obama Tries to Have it Both Ways on the Second Amendment — February 20, 2008 @ 10:40 pm
  16. [...] week I wrote a post about how Barack Obama was trying to have it both ways on the Second Amendment. Ken Blackwell at Townhall.com, however, believes that Obama’s doublespeak about the Second [...]

    Pingback by The Liberty Papers »Blog Archive » More on Obama’s Doublespeak — February 21, 2008 @ 12:37 pm

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