Friday, June 27, 2008

The Supremes on Your (Restricted) Individual Right

The Supreme Court has overturned the gun ban here in Washington, D.C.

For those who want to read the opinion, click here

Getting rid of the D.C. gun ban will not change a thing on the streets of our Nation's Capitol.

D.C. criminals have always ignored the gun ban, while law-abiding folks generally don't shoot other folks.

As for the notion that personal gun ownership will deter street crime, don't count on it.

We do not live in a world of High Noon shootouts, but in a world of drive-by shootings, strong-armed stick-ups, drug deals gone bad, and cowards who shoot others in the back in parking lots. In the real world, punks and criminals almost always have the drop on the law-abiding, and that will not change.

Which is not to say this decision will not make a lot of noise. This being the political season, folks on both the right and the left are going to pander and play "gotcha" on guns as quick and as loudly as they can.

What makes this partisan posturing and pandering so funny is that, as far as I can tell, there's not a bit of difference between John McCain and Barack Obama on the Second Amendment.

John McCain does not own a gun and does not hunt. Neither does Barack Obama.

Barack Obama believes the Second Amendment is an individual right. So too does John McCain.

John McCain recognizes the need for gun licensing and certain "time, place, and manner" restrictions. Obama believes the same.

And it's not just Barack Obama and John McCain that are in agreement on the Second Amendment; so too is the U.S. Supreme Court.

As Justice Antonin Scalia (the most conservative member of the Court, and a hunter and gun owner) noted in today's opinion:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

In short, while the Court ruled that the Second Amendment is an individual right, it also ruled that it is a right that is subject to licensing and time, place, manner, and gun-type restrictions at the state and local level. In fact, it is even subject to such restrictions at the building level.

Read the opinion.

You may agree or disagree with it, but this is now the law of the land and valuable guidance for state and local officials.

For those who want to know what I think (both of you), here are the links to what I have written about guns before:


In closing, I should note that while John McCain, Barack Obama and Antonin Scalia are singing out of the same hymnal when it comes to the Second Amendment, John McCain is (arguably) a little shaky on the First Amendment which is why he has come under repeated attack by the National Rifle Association.

Ironically, the Supreme Court chose today to overturn part of the McCain-Feingold campaign finance law which protected members of Congress from running against wealthy self-financing political rivals.

Apparently the Court felt that the legislation championed by Senators McCain and the Feingold violated the First Amendment.

Hmmmm. . . .

This is not the first time this month that John McCain has been at odds with the U.S. Constitution and the U.S. Supreme Court. Two weeks ago the Supreme Court said that detainees in Guantanamo Bay needed to be represented by counsel and could not be detained forever without charge or trial.

McCain, who is a little shaky on Article I of the U.S. Constitution (habeas corpus) objected.

Not all good conservatives did. Republican Senator Arlen Specter of Pennsylvania (former Chairman of the Senate Judiciary Committee) saluted the Supreme Court's decision and "reaffirmation of the constitutional right to habeas corpus."

Which brings us around full circle.

Perhaps our Founding Father were not crazy when they wrote into the U.S. Constitution an individual right "to keep and bear arms."

After all, when push comes to shove we may yet need our guns -- to protect us from those who would jail us forever on charges never stated, and who would try us without counsel.

We may yet need our guns to protect us from people like John McCain who would subvert the U.S. Constitution while telling us "it's for our own good."


Chas S. Clifton said...

At least McCain's campaign does not have to explain his previous statements as "inartful." :-)

You can count me as a lukewarm Obama supporter, but as I rode past Trinity United Church of Christ on the train last week, I wondered what else of his cherished past he was going to discard in the name of political expediency, along with the Rev. Wright, his white grandmother, opposition to NAFTA, service on the Joyce Foundation board, support of gun control, and anti-FISA stand.

PBurns said...

I love all the "new-speak" that all of us (me too!) have picked up thanks to the pundits on 24-hour news stations.

"Throw under the bus" seems to be the newest version, and I hear this turn of a phrase at least once a day now.

It's a wonderful line to use in attack politics as it's a summing-up statement designed to end discussion rather than illuminate.

For example, John McCain has put Charlie Black in as the head strategist of his campaign -- the same Charlie Black that was a professional apologist for despotic murderers like Jonas Savimbi of Angola, Ferdinand Marcos of the Philippines, Mobutu Sese Seko of Zaire, and Mohamed Siad Barre of Somalia ( see >> for more information).

Now if John McCain decides to keep Charlie Black in his campaign as chief strategist, the folks on the left can say John McCain has "embraced an apologist for baby killers and murderers."

On the other hand, if John McCain tosses Charlie Black out of his campaign, we can say that "John McCain has thrown Charlie Black under the bus for little more than quick political expediency."

Wonderful! Either way, John McCain is a vile creep!

What is interesting here is that Barack Obama has proven to be a little less easy to tar than John McCain, in part because he has not made as many bad political choices.

For example, it does not appear that Barack Obama ever called his wife "a cunt," nor has he (as best anyone can determine) called his opponents and Senate colleagues "shitheads," "assholes" and "a fucking jerk." ( see >> ) Nor has Barack Obama ever gotten in a near fist-fight with the Republican head of the Senate Finance Committee (see >> ).

Nor has Barack Obama sought the endorsement of, and stood shoulder-to-shoulder with, preachers who hate Catholics (the Rev. John Hagee) or prayed for end times to come quickly (the Rev. Rod Parsley).

What Barack Obama HAS done is try to explain some pretty tough and nuanced realities of life in America across racial and class lines.

Take your assertion that Barack Obama "threw his Grandma under the bus."

In fact, Obama wrote at length about his grandmother’s not entirely irrational fears about young black men approaching her alone and at 5 am at bus stops in Hawaii as she was on her way to work.

Obama presented her fears in a detailed and nuanced way (the entire story is found in "Dreams from My Father." available at Amazon at >> or for free at your local library), recognizing the particular fears of a single elderly white woman on the streets alone.

But, of course, that nuanced, insightful and compassionate story is ignored by the jabbering pundits at Fox News, isn't it? The story repeated by the martini--and-cigar set at Fox is that Obama "threw his grandma under the bus" for political expediency, and never mind that it is not true.

As for Barack Obama and guns, his position has been pretty consistent as far as I can see. See his second book for a detailed framing of his policy issues. Or look at his response at the April 16th debate in which he said: "As a general principle, I believe that the Constitution confers an individual right to bear arms. .... [but] We can make sure that criminals don't have guns in their hands. We can make certain that those who are mentally deranged are not getting a hold of handguns. We can trace guns that have been used in crimes to unscrupulous gun dealers that may be selling to straw purchasers and dumping them on the streets."

Read what Scalia said in the Heller opinion (quoted in the original post above) and tell me if these two constitutional scholars don't agree!

Wow! Great minds (right and left) think alike!

As for the "inartful" line that the folks on Fox News have tried to attribute to Obama following the Heller decision, it is pure unadulterated nonsense. It turns out that this "inartful" description is the Obama camp being a little too nice when repudiating an UNNAMED and ANONYMOUS person who, months ago, simply stated Obama's position incorrectly. See ABC News on this >>

The same simple crush between truth and reality occurs when it comes to Rev. Wright who created a church that has done a lot of good work (well documented and widely praised for decades).

Give people enough praise and notoriety, of course, and their heads can easily swell up like a balloon while you are not looking. That is what happened with Rev. Wright, whose ego has swollen with hot air to the point that he is about as big as a Macy's Parade float.

To his credit, Obama was slow to believe the cartoon picture being painted of the man he once knew; he was not willing to run on rumor or take 10 seconds of video tape out of context and "toss Wright under the buss" on the basis of that alone. However, when it became clear that Wright had become so ego-besotted and toxically self-righteous, Obama moved decisively. He did not do it with joy, but he did it with conviction.

What's funny is now that Barack has actually changed churches, the very same people who damned Obama for standing by Wright when it appeared a few sentences had been carefully edited out of context from thousands of hours worth of video, are now damning Obama for "throwing Wright under the bus" when it became clear that Wright's acting out was not a one-time aberration, but evidence of a man who was self-poisoned by his own self-importance.

"Damned if you do, and damned if you don't." I suppose.

As for the Joyce Foundation, let's take a few minutes to find out what they actually do. And let's go to their Foundation reports or IRS documents to do it, not right wing web sites.

For starters, The Joyce Foundation has given away more than $555 million since 1972.

$555 million.


That's a LOT of money going to charity, and the Joyce Foundation has done a lot of good work in a wide variety of areas, including the Environment, Education, Employment, Gun Violence, Lobbying Reform, and Culture.

Their annual report can be read here >>

Go to their annual report (link provided above), and tell me what you are opposed to.

Are you opposed to getting better data on guns and violence? I am not -- it only supports my position that guns are not the primary cause of, or instrument of, violence in America.

Are you opposed to efforts to crack down on illegal gun dealers? I am not -- keeping guns out of the hands of criminals and crazies is a very good idea if you believe in safe communities.

Are you opposed to states being able to determine their own right-to-carry laws? Not even Antonin Scalia is opposed to jettisoning time-place-and-manner laws. And, as Justice Scalia made clear, the Cruickshank opinion still stands, which means gun laws are still a states-rights issue.

Are you opposed to the Joyce Foundation funding more teachers in Chicago Public Schools?
I bet not.

Are you opposed to cleaning up the Great Lakes? Clean Energy? River Restoration? Are you opposed to economic revitalizaiton in the Great Lakes area, or work programs to get folks off welfare? Are you opposed to increasing diversity in the arts?

I bet you are not opposed to very much -- if any -- of this.

Which is not to say that you and I might not disagree with the Joyce Foundation on a few things.

I know I do.

My criticism of the Joyce Foundation (and gun-control groups in general) is that they are overly-focused on guns, and not enough on violence.

Most violence is not gun related. Most guns are used for entirely legal and peaceful purposes, and I think the Joyce Foundation is off the beam when it comes to their focus on gun violence as distinct from (and more important than) every other kind of violence.

But so what? So the Joyce Foundation is on the wrong road on this one point. They are on the right road with most others.

And besides, whoever knew truth to suffer in a free and open debate? Not me! In fact, the Supreme Court's decision this week in U.S. v. Heller *supports* my point, not only about the ultimate power of free and open debate, but also on the Second Amendment.

We won! And I, for one, never doubted we would.

Ironically, of course, the President has almost no impact on Second Amendment issues -- a point I have made before.
Congress has a little impact on the margins (it can ban some uncommon weapons), the states have a major impact at the core (under Cruickshank, they determine time-place-and-manner that guns are pemitted), and the courts have some power when laws are challenged and those cases are subsequently appealed. But the President? The President does not have much to do with the Second Amendment!

Of course, with these two candidates it would not matter much if they did: As noted, McCain and Obama have the same position on guns. And, oddly enough, it is the same position as that of Supreme Court Justice Antonin Scalia.