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April 20, 2008

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Bias is as bias does

Jeralyn Merritt is a dyed-in-the-wool Clinton supporter. Everything she says about Obama is suspect. That said, Obama has stated he believes the Second Amendment secures an individual right, but that local jurisdictions may pass common-sense regulations. Whether the Supreme Court in Heller strikes down DC's ban or not, that is likely what it will say. So Obama is not out of the mainstream on this issue at all.

merl

Damn, Sen Obama just lost a vote he never would have gotten in the first place. Bummer for him.

Charlie (Colorado)

That said, Obama has stated he believes the Second Amendment secures an individual right, but that local jurisdictions may pass common-sense regulations.

Which is to say he hasn't said anything at all --- at least, if "local common sense regulations" include the effectively complete gun ban in DC.

Eloquent prevarication is still prevarication.

bgates

Of course the Woods Fund is anti-gun. The bomb makers don't need the competition.

Tom Maguire

Jeralyn Merritt is a dyed-in-the-wool Clinton supporter. Everything she says about Obama is suspect.

Including a link to a Chi Trib statement from the Obama campaign?

bgates

TM, the position of the Obama campaign on this issue is that the position of the Obama campaign on this issue is a distraction from the real issues confronting America. That statement? Just words.

Bias is as bias does

Including a link to a Chi Trib statement from the Obama campaign?

Yes. Context is everything. Jerralyn herself admits her bias in a bloggingheads.tv debate with Ann Althouse.

Which is to say he hasn't said anything at all

No. That is incorrect. Many liberal law professors insist that the Second Amendment does not enshrine an individual right outside of connection with militia service, and Obama rejects that view. That puts him in line with -- from the tenor of Heller oral argument -- Scalia, Roberts, Alito, and Kennedy. Whether he would uphold the DC law on a fact-intensive basis is another matter on which he could be fairly criticized, but it would be false to state he's just waffling. He's not.

Rick Ballard

Obama campaign:

"Obama believes the D.C. handgun law is constitutional."

So, Bias, what you're saying is that Obama wants to put some distance between himself and his campaign. In a very nuanced fashion. By talkin' real purdy.

But he ain't wafflin' a bit, because he really needs that distance at the moment.

I get it - this is situational ethics squared. How diversely uniting of BHO - I think I just felt a tingle of change and hope run down my leg. Well, I felt something run down my leg and it's not raining, so it must be change and hope, right?

capitano
but it would be false to state he's just waffling. He's not.

No problem, this works better for me anyway:

Dissemble
--

To behave affectedly or insincerely or take on a false or misleading appearance of.
Synonyms: counterfeit, fake, feign, play-act, pose, pretend, put on, sham, simulate, dissemble

Sue

That said, Obama has stated he believes the Second Amendment secures an individual right, but that local jurisdictions may pass common-sense regulations.

That is what he says? It is a constitutional right but you can use common-sense regulation to infringe upon that right? Is this a pick and choose kind of thing? Because the left, and Obama, argues vehemently that common sense can't be used to protect our country from terrorists. The rights of the individuals are paramount to common sense. Your candidate is a hypocrite if that is indeed what he believes.

Sue

Why is it liberals are able to find "common sense" in actions they approve and are totally unable to locate it in other areas? Take underage abortion for instance. Common sense should tell you that a school nurse who can't administer an aspirin without parental consent shouldn't be able to drive a student to an abortion clinic without parental consent. I think I like this new pharleftism constitutional common sense thingy. Instead of constitutional rights, we just look for the common sense angle.

Sue

Turn Obama's stance on gun rights around to underage abortions and we win the argument. How can he disagree? Acknoledge the constitutional right, but have common-sense regulations preventing it. Voila.

Tom Maguire

Yes. Context is everything.

That's rich, considering the way the Obama campaign treated McCain's 100 year occupation of Iraq, or more recently his 'Times re tough but we are making great progress, just not enough' comment.

As to the notion that Ms. Merritt backs Hillary, no kidding.

And I am still stuck on how the context could change the Obama campaign statement that "Obama believes the D.C. handgun law is constitutional" into "He does not believe it is constitutional", or "But how the heck would he know?". Other than the context of him battling for votes in Pennsylvania, of course.

Ward Tipton

the right of the people to keep and bear Arms, shall not be infringed.


Enough said!

Soylent Red

Yeah Ward. Second and Fourteenth Amendments seem pretty clear to me.

Fourteenth ought to be particularly familiar to Obamessiah. So I can only conclude that despite teaching Constitutional law, he must have a reading disability or something.

ben

"...but that local jurisdictions may pass common-sense regulations."

A complete ban on guns is not a common-sense regulation!!!

So if he believes the DC gun ban is constitutional and he believes in the second amendment, put some syrup on that waffle.

MarkJ

That said, Obama has stated he believes the Second Amendment secures an individual right, but that local jurisdictions may pass common-sense regulations.

Umm, Bias, correct me if I'm wrong, but didn't His Audacity, not so long ago, propose legislation that would have banned sales of firearms within five (5) miles of schools, parks, etc.?

If so, let this sink in for a moment. A five (5) mile restriction would have forced the closure of just about every firearms retail outlet in the nation. How many thousands of law-abiding, tax-paying folks and businesses would Obama's proposal have put out of work or destroyed? Short answer: more than you'd conveniently care to think about.

Accordingly, I think I know what constitutes "reasonable restrictions" in Obama's lofty, arugula-obsessed mind:

"Sure, you've got a right to own and use firearms. You just won't be able to legally buy them anywhere."

You don't have to believe me: try, for once, to actually do some research, read some primary sources, and then draw your own conclusions.

mightysamurai
That said, Obama has stated he believes the Second Amendment secures an individual right, but that local jurisdictions may pass common-sense regulations.

So it secures an individual right....except when it doesn't?

Lets apply this logic to some of our other Constitutional rights, shall we?

The First Amendment secures an individual right to free exercise of religion, but local jurisdictions may pass "common-sense regulations" abridging that right.

The Fifth Amendment secures an individual's right to due process of law, but local jurisdictions may pass "common-sense regulations" abridging that right.

The Fourteenth Amendment secures an individual's right to equal protection under the law, but local jurisdictions may pass "common-sense regulations" abridging that right.

Doesn't quite work that way, does it?

So Obama is not out of the mainstream on this issue at all.

Whether or not he is in the mainstream is irrelevant. The question is whether he is RIGHT.

ben

"That puts him in line with -- from the tenor of Heller oral argument -- Scalia, Roberts, Alito, and Kennedy."

Bias, if we had a contest for intellectually dishonest statements here on JOM I would nominate you for top ten. Let me assure you that Scalia and Obama may be in line in that both believe the Earth is round, but they are not in line on gun control.

In plain English, you can't support a total gun ban AND believe in the second amendment. Even Obamamessiah "bring us together" can't pull off that feat.

Sue

It's a good thing we all speak 'doublespeak'. Obama is making us practice our craft.

Bias is as bias does

Uh. Listen. I am strong supporter of the Second Amendment.

You guys are just conflating two questions.

One is whether it's an individual right as opposed to totally controlled by the militia. On this question Obama is in line with the conservatives.


The other is whether the DC handgun ban (not all guns) -- for whatever reason -- infringes on that individual right.

There are valid arguments that I find absolutely unconvincing that allow one to say yes, it's an individual right, but no the DC ban doesn't fall (say, because long guns and rifles are still permitted).

I strongly disagree with those arguments, but they are not "waffling": they are literally the arguments currently before the Court in Heller, so Obama, while likely on the losing side, is not out in the crazy fields with this.

Whether the Fourteenth Amendment question is in play is a matter of whether the Court wants to decide the incorporation issue on a case of first impression, but, hey, DC is not a State! So your contention that Obama is an idiot because he doesn't think the 14th Amendment applies to DC is just silly. Try reading the Constitution!

A fervid Clinton supporter is relying on layperson ignorance of Second Amendment litigation and constitutional theory to trick you. I doubt Merritt is even a proponent of gun rights, no matter her posturing. You can criticize Obama all you want on his support of the DC ban -- which is a piece of crap -- but that isn't necessarily so inconsistent with the individual rights position that it must be slimy political manuevering. Asserting otherwise is just ignorant.

Bias is as bias does

Bias, if we had a contest for intellectually dishonest statements here on JOM I would nominate you for top ten.

This is not intellectually dishonest. Breyer and Scalia will probably be in line on declaring the Second Amendment to enshrine an individual right. I imagine they will disagree on whether the DC ban is unconstitutional. The two questions are simply analytically separate questions. You need to not conflate the two.

Bias is as bias does

The First Amendment secures an individual right to free exercise of religion, but local jurisdictions may pass "common-sense regulations" abridging that right.

Yes, actually. Read Scalia's opinion in Employment Division v. Smith. http://www.oyez.org/cases/1980-1989/1989/1989_88_1213/

I am a lawyer. You, apparently, are not. Ms. Merritt, a fervid Clinton supporter, is tricking you. Surprise, surprise. Clinton lies.

And, again, the 14th Amendment don't apply to DC.

Bias is as bias does

A five (5) mile restriction would have forced the closure of just about every firearms retail outlet in the nation.

I don't see how that's possible, as this was state legislation in the state of Illinois. I imagine this formulation would have moved gun stores out of the cities and into the plains areas where sportsmen actually hunt, i.e., common-sense.

mightysamurai
No. That is incorrect.

No, Charlie had it right the first time.

You said Obama is okay with "common-sense regulations" at the state/local level. Okay.....what is that?

What are "common-sense regulations" in Obama's mind? A total ban, ala Wash. DC? Banning only certain types of weapons (i.e., "assault weapons") but allowing others? Allowing all weapons so long as they're registered?

There's no way to tell. "Common-sense regulations" can mean anything from a total ban to unrestricted gun ownership. I guarantee you I can find at least one person who would see those as "common-sense regulations".

Assuming you quoted him correctly, what Obama did was carefully craft his statement so no matter what ends up happening, he's still "in the mainstream". In effect, he said nothing at all.

How very lawyerly of him.

M. Simon

Something like 70 to 80% of Americans are favorable to very favorable to the 2nd.

We are going to beat the D nominee so bad on that one in the general that our knuckles are going to hurt. Better than hurting them from dragging I'm sure.

Soylent Red

The Fourteenth Amendment secures an individual's right to equal protection under the law

It goes beyond that samurai.

As was alluded to, Liberal dogma maintains that the 14th dictates that no activity can be legal in one place unless it is legal everyplace, cf. abortion. To do so would be a violation of equal protection.

Thus, by their own logic, Liberals cannot be simultaneously pro-abortion (deemed as a Constitutional right) and pro-gun control (now grudgingly a right). Particularly since Roe v. Wade relies heavily on the 14th to make its argument against jurisdictional differences in abortion law.

But then you get into the bottom line argument for Liberals: We say guns are bad, therefore it is common sense that they are bad. Therefore Constitutional restrictions on our actions WRT to guns do not apply.

I should also point out that the 14th is one of the Left's rhetorical underpinnings for affirmative action.

Elliott

Of course the Woods Fund is anti-gun. The bomb makers don't need the competition.

Very nicely done, bgates.

the position of the Obama campaign on this issue is that the position of the Obama campaign on this issue is a distraction from the real issues confronting America. That statement? Just words.

Yeah, this is the candidate for whom no action of his surrogates or campaign staff can redound to his detriment. That would be bringing politics into it and, let me get this right, we must "get beyond the politics of this issue and figure out what, in fact, is working."

This strikes me as a rather inapt standard when we are dealing with constitutional questions*. The appropriate way to get beyond the politics such unfortunate constitutional circumscription** of congressional power is passage of an amendment*** to the constitution. In the meanwhile, perhaps the Senator could try applying his novel standard to an issue like capital gains taxation.
________________________
*Before anyone say "John McCain" and "1st amendment," I know.
**aka "Just words."
***Ibid.

M. Simon

39 States have shall issue on concealed carry. 9 states have may issue.

2 States do not allow concealed carry. Which states might those be and what do you want to bet that Obama represents one of those states?

In other words Mr. Out of Touch has just lost another point of contact with most of America. Again.

As a member of the Vast Right Wing Freak Show I consider it my job to make Obama freak out. How am I doing so far?

Soylent Red

I imagine this formulation would have moved gun stores out of the cities and into the plains areas where sportsmen actually hunt, i.e., common-sense.

I realize you're a lawyer and all, but we have schools out in the "plains areas" too. Most of them within five miles of each other, unless you're in deep East Jesus, Nebraska.

Moreover, some have more than one room in them.

I'm probably just "clinging" here, but it would seem to me that those who would seek to foist their "common sense" on us rubes, might actually get acquainted with the facts on the ground.

BTW, what's the price of arugula like where you're at?

Bias is as bias does

There's no way to tell. "Common-sense regulations" can mean anything from a total ban to unrestricted gun ownership.

If you define "common-sense" to mean "anything anyone wants," sure. But generally, people arguing in favor of common-sense regulation at the local level are proponents of federalism. I agree that makes little sense in DC, as DC is not a State. And, again, the Fourteenth Amendment does not apply to DC, as it is not a State.

But the point is -- whether you think "common-sense" is vague or not -- that an argument that the Second Amendment secures an individual right and that we should respect federalism IS NOT THE STANDARD LIBERAL ARGUMENT YOU KEEP TRYING TO IMPUTE TO OBAMA.

The standard liberal argument is: "No one has any right to have guns in any way, shape, or form, because all guns rights are connected to the National Guard or Armed Forces. Want a gun, join the Army." Obama doesn't believe that.

M. Simon

Hey,

I think we should all have militia weapons.

A Ma Deuce would be nice. Something to lay down the LAW. And comms gear so we can call in arty and air strikes from our better equipped compatriots.

Bias is as bias does

unless you're in deep East Jesus, Nebraska.

I'm actually originally from a small-town in Pennsylvania. Again, I disagree with Obama about the DC gun ban.

Jane

Do we get our choice in militia weapons? I think a cannon might look nice on my deck.

boris

that the Second Amendment secures an individual right and that we should respect federalism IS NOT THE STANDARD LIBERAL ARGUMENT ...

Nuance made necessary by the likely ruling of SCOTUS.

define "common-sense" to mean "anything anyone wants,"

The new post SCOTUS STANDARD LIBERAL ARGUMENT.

IIRC Obama did say that nobody should be able to own guns.

M. Simon

Jane,

A crew served weapon. Being a Navy man - my favorite kind. Were you thinking of a four pounder or something with a bit more heft?

MayBee

I doubt Merritt is even a proponent of gun rights, no matter her posturing.

I think you are wrong about that, but of course you could check with her or search her site.
I know for a fact she believes it is an individual right.
Merritt: He believes (as do I) that the Second Amendment conveys an individual right to bear arms.

Bias is as bias does

Nuance made necessary by the likely ruling of SCOTUS

I believe Obama took this position before the case was even granted cert. If you have evidence to the contrary, I'll be glad to review it.

boris

I think a cannon might look nice on my deck.

PVC pipe, hairspray, and potatoes. Some assembly required.

Bias is as bias does

I know for a fact she believes it is an individual right.

Oh, but wait: isn't that the standard, liberal, waffling, nuanced position made necessary by the SCOTUS case...? That Scalia, Alito, Roberts, and Kennedy agree with...?

Rick Ballard

So, the argument is that Obama is incapable of expressing a coherent and clear opinion concerning the Second Amendment? I can buy that. I believe him to be incapable of expressing a clear and coherent position on [fill in any issue].

I also find it wholly unsurprising that a Chicago machine hack pol does not possess the backbone to articulate a clear position on anything aside from a fervent desire that the electorate maintain their focus upon the illusion of hope and change engendered by Senater Zero Substance.

We've had one second rate sophist in the WH within recent memory. Why do we need to try a third rater?

Bias is as bias does

So, the argument is that Obama is incapable of expressing a coherent and clear opinion concerning the Second Amendment?

No. His view is coherent and clear. It just isn't one anyone here, including me, agrees with because it keeps the absolutely ridiculous DC ban standing.

MayBee

The standard liberal argument is: "No one has any right to have guns in any way, shape, or form, because all guns rights are connected to the National Guard or Armed Forces. Want a gun, join the Army."

Is this written in the Standard Liberal Argument handbook? How are you making this assertion? I know many liberals, and they all have very different opinions on gun ownership/gun control.

mightysamurai
Uh. Listen. I am strong supporter of the Second Amendment.

Sure you are.

Amazing Beliefs:

That many "supporters of the Second Amendment" endorse "reasonable gun control", just like many "supporters of the First Amendment" support "reasonable media control".

One is whether it's an individual right as opposed to totally controlled by the militia. On this question Obama is in line with the conservatives.

Upon what basis can you claim this?

So far you haven't even substantiated your claim that Obama beliefs the 2nd Amendment secures an individual right. Neither have you explained what Obama meant by "common-sense regulations".

Does he support handgun bans? Assault weapon bans? No way to tell. Therefore, no basis by which to claim Obama is "in line with the conservatives".

Whether the Fourteenth Amendment question is in play is a matter of whether the Court wants to decide the incorporation issue on a case of first impression, but, hey, DC is not a State! So your contention that Obama is an idiot because he doesn't think the 14th Amendment applies to DC is just silly. Try reading the Constitution!

LOL

So now you're arguing that Obama doesn't believe the Equal Protection Clause applies to the District of Columbia? That the District of Columbia is not subject to the jurisdiction of the United States?

And you call that "mainstream"?

A fervid Clinton supporter is relying on layperson ignorance of Second Amendment litigation and constitutional theory to trick you.

I renew the question posed by Tom Maguire.

How exactly is she "tricking" us? What possible extra context could you add to Obama's statement that would make it say anything different?

mightysamurai
This is not intellectually dishonest.

Yeah, it really is. You stated Obama's beliefs on the 2nd Amendment are in line with Scalia's.

Does Scalia believe the DC gun ban is Constitutional?

Read Scalia's opinion in Employment Division v. Smith.

Does that include banning, say, Islam? That would be analogous to Obama's stated position on the DC gun ban, after all.

And I notice you conveniently failed to address my other two points. Made you uncomfortable, did they?

I am a lawyer. You, apparently, are not.

Golly, that's not elitist at all.

Ms. Merritt, a fervid Clinton supporter, is tricking you.

For the second time, how is Ms. Merritt "tricking" us?

Explain to me how she is "tricking" us.

And, again, the 14th Amendment don't apply to DC.

What Constitution have you been reading?

Article I, Section 8, Clause 17 places DC firmly within the jurisdiction of the United States Congress "in all cases whatsoever".

I don't see how that's possible, as this was state legislation in the state of Illinois. I imagine this formulation would have moved gun stores out of the cities and into the plains areas where sportsmen actually hunt, i.e., common-sense.

Because we all know that sportsmen are the only people who ever buy guns, right?

Bias is as bias does

Is this written in the Standard Liberal Argument handbook? How are you making this assertion?

Oh, please. The standard liberal argument in second amendment litigation and gun rights scholarship in legal academia. I sketched out "the militia view". If you're unaware that this is the standard liberal argument in second amendment litigation, I just can't help you.

Elliott

M. Simon,

If one accepts, as I believe a couple of the conservative justices do, that the framers were concerned that citizens be able to defend themselves from a tyrannical government, then the view that possession of the latest and greatest in military technology is protected by the 2nd amendment seems to me to follow logically.

I remember reading a law review article supporting that Instapundit linked. The author agreed with the DC circuit court's opinion, but I was disappointed that he raised the issue of ownership of advanced military weaponry only to dismiss the idea as ridiculous on its face.

ben

"say, because long guns and rifles are still permitted".

Wow, for rabbit hunting on the Mall? Bias is grasping at straws here.

"No one has any right to have guns in any way, shape, or form, because all guns rights are connected to the National Guard or Armed Forces. Want a gun, join the Army." Obama doesn't believe that.

Wow, that is big of him.

boris

His view is coherent and clear

Internal contradiction is not coherence.

The term "square circle" is only clear in that the words and meaning are not complex. The concept is neither clear nor coherent though.

Bias is as bias does

Article I, Section 8, Clause 17 places DC firmly within the jurisdiction of the United States Congress "in all cases whatsoever".

How is Article I in the 14th Amendment?

Bias is as bias does

You stated Obama's beliefs on the 2nd Amendment are in line with Scalia's.

No. I stated they agree that the Second Amendment secures an individual right. They likely disagree about the constitutionality of the Dc gun ban.

ben

"If you're unaware that this is the standard liberal argument in second amendment litigation, I just can't help you."

Ok I get it. Bias in convoluted and intellectually dishonest (sorry, but the shoe really fits')fashion had condensed the argument as follows: "There are liberals with even more extreme views on gun control than Obama, so we should give him a pass on that basis".

So yes there are more extreme views, and no, he doesn't get a pass.

Rick Ballard

"His view is coherent and clear."

And can be found expressed with concision, where? You can cut and paste with a cite or just link. The only rule is "his very own words" not a dissemblers review of Senator Zero Substance's interpretative dance.

Bias is as bias does

Internal contradiction is not coherence.

There is no internal contradiction! There are simply TWO separate questions!

1. Is the right collective or individual?
2. What is the scope of the right if it is individual?

Obama's answer is:

1. Individual. Like the conservatives and libertarians say.
2. Not broad enough to knock down DC's ban. (Which I strongly disagree with.)

You don't like it, fine. Neither do I. But it doesn't make him an idiot or a pandering liar.

Soylent Red

Man...

People say Bush is inarticulate for using the wrong words to convey definite ideas.

Obama, on the other hand, uses beautiful words to convey nothing at all.

Bias is as bias does

So yes there are more extreme views,

They aren't "more extreme [liberal] views".

There is liberal orthodoxy and then there is the conservative/libertarian position on the threshold question, which Obama shares.

You people act like the guy didn't teach at the U of Chicago Law. That's a Law/Ec + libertarian school.

No, he's not a libertarian, but yes, he agrees with the libertarian position on whether the right is individual or not.

I'm done. You people are nuts.

mightysamurai
I agree that makes little sense in DC, as DC is not a State.

Again with this nonsense that DC is not within the jurisdiction of the US government?

I thought you were a lawyer?

I agree that makes little sense in DC, as DC is not a State. And, again, the Fourteenth Amendment does not apply to DC, as it is not a State.

The 14th Amendment applies to Congress, and Congress has jurisdiction over the District of Columbia.

But the point is -- whether you think "common-sense" is vague or not -- that an argument that the Second Amendment secures an individual right and that we should respect federalism IS NOT THE STANDARD LIBERAL ARGUMENT YOU KEEP TRYING TO IMPUTE TO OBAMA.

Shhhh. Use your indoor voice.

The standard liberal argument is: "No one has any right to have guns in any way, shape, or form, because all guns rights are connected to the National Guard or Armed Forces. Want a gun, join the Army."

Heh. You mustn't know many liberals, then. The "standard liberal argument" is not that. Very few liberals would be so honest as to come right out and say that they support an outright ban on guns.

Rather, the "standard liberal argument" is actually precisely what Obama said. They just apply a different meaning to "common-sense regulations" than Scalia would. "Common-sense regulations", to a liberal, starts at may-issue concealed carry permits and gets more draconian from there, up to and including state-wide bans on handguns, "assault weapons", or perhaps even guns in general.

Obama doesn't believe that.

How do you know? "Common-sense regulations" could mean anything. It's all about how you define "common-sense".

Again, I disagree with Obama about the DC gun ban.

It cracks me up that in one breath you claim that Obama is in line with the standard conservative argument, then in the next you admit that he supports the DC gun ban.

ben

"No. I stated they agree that the Second Amendment secures an individual right. They likely disagree about the constitutionality of the Dc gun ban."

Bias, this is right out of Bill Clinton's "it depends on what is is". Either you believe in the second amendment or you believe in gun bans. You can't have it both ways. Waiting periods, background checks, trigger locks, etc. could possibly be interpreted as "reasonable restrictions". A total ban on handguns is not a reasonable restriction. You know it, Obama knows it, everyone knows it.

Soylent Red

You people are nuts.

This must be true. Because you say so. And you are a lawyer.

Sorry for the typos BTW. This wrap around jacket makes it hard to type with my nose.

DebinNC

Has Obama ever affirmed the right to have and use guns for personal protection? All I found at his website (under the category "Additional Issues") was a "Sportsmen" section which focused exclusively on hunters and target shooters.

boris

[Constitutional right that is] not broad enough to knock down DC's ban.

Internal contradiction IMO.

mightysamurai
Oh, please. The standard liberal argument in second amendment litigation and gun rights scholarship in legal academia. I sketched out "the militia view". If you're unaware that this is the standard liberal argument in second amendment litigation, I just can't help you.

Bias, this is called "intellectual dishonesty".

This discussion is not about "second amendment litigation and gun rights scholarship in legal academia", but Second Amendment issues in general.

How is Article I in the 14th Amendment?

What part of "in all cases whatsoever" don't you understand?

Or are you saying that the federal government is under no obligation to uphold the 14th Amendment?

No. I stated they agree that the Second Amendment secures an individual right. They likely disagree about the constitutionality of the Dc gun ban.

So their beliefs on the 2nd Amendment are in line.....except when they aren't?

What half-price night school did you earn that law degree from, anyway?

There is no internal contradiction! There are simply TWO separate questions!

....Whose answers contradict each other.

If you believe the right to bear arms is an individual right which shall not be infringed, you cannot also support a ban on guns. You just can't. Not without some serious cognitive dissonance going on.

You people act like the guy didn't teach at the U of Chicago Law.

Given his statements so far, I wouldn't be surprised.

Bias is as bias does

It cracks me up that in one breath you claim that Obama is in line with the standard conservative argument, then in the next you admit that he supports the DC gun ban.

Learn to fucking read.

ben

"I'm done. You people are nuts."

Another Obamabot hits the dust.

mightysamurai
Learn to fucking read.

Pardon? I thought you were, quote, "done"? Because we are, quote, "nuts"?

Danube of Thought

" Whether he would uphold the DC law on a fact-intensive basis is another matter on which he could be fairly criticized, but it would be false to state he's just waffling. He's not."

Whether he would uphold the DC law is, of course, the very question presented. It is my understanding that he would do so (or at least that he has said he would), and it is also my guess that Scalia et al. are about to rule that it is not. It takes some astonishingly creative reasoning to suggest that Obama is in the mainstream on this one. That is, it takes some Obama-style backing, filling and waffling.

M. Simon

Say,

My #2 Son is libertarian. He graduated with honors from UChicago.

UChicago is a libertarian school.

QED

===

You know when I went there some time back it was very left/liberal. It didn't appear to have changed much since then. And then there is the Wright connection to the school.

I will agree that it is more libertarian friendly than most top American schools. It is not a hot bed of libertarian/conservative thought.

Bias is as bias does

Internal contradiction IMO.

Yes, in your opinion.

As a matter of logic?

NO.

Does it make any sense, given the egregiousness of the DC handgun ban? No, it doesn't. But that isn't a matter of logic, it's a matter of the factual record.

Bias is as bias does

It is not a hot bed of libertarian/conservative thought.

Oh, I didn't say hotbed. I don't even agree with Obama. It is by far the most libertarian and libertarian/conservative-friendly of the top law schools, without question, and the most friendly to the Law and Economics school, for obvious reasons.

M. Simon

Learn to fucking read.

I was unaware that reading was done with the genitals. Perhaps you could explain the procedure. There might be some fun to be had there.

mightysamurai
Does it make any sense, given the egregiousness of the DC handgun ban? No, it doesn't.

Am I crazy, or does anyone else remember Bias claiming that Obama's view is, quote, "coherent and clear"?

"Coherent" is defined as "(of an argument, theory, or policy) logical and consistent" or "(of a person) able to speak clearly and logically".

So first Obama's position was logically consistent, and now it isn't.

Which is it?

ben

Actually I have to admit Obama seems to elicit supporters that are willing to defend the indefensible, like Bias here. You see people believing that the refusal to wear a flag pin is because "his patriotism means funding the VA". They believe Obama was not aware of Wright's rants, "because he did not attend church that day". That his sweet Rezko house deal was "just a boneheaded move". Bias sees no problem with "Obama believes in the individual right AND he believes in DC's total handgun ban". There is a lot of koolaid being drunk out there.

Bias is as bias does

Whether he would uphold the DC law is, of course, the very question presented.

There are two analytical questions -- one is whether the right is individual and the other is the scope of that right. The point is one can reject the militia view propounded by DC while accepting on some factual-basis that the DC ban stands, which Breyer seems prepared to do.

There is no mainstream on the second question, because there hasn't been a direct case on the Second Amendment since Miller. The only question on which there is a mainstream (because of the tremendous amount of academic scholarship on it) is the first analytical question -- whether the right is individual or not -- and Obama takes the libertarian/conservative position on that question.

Or are you saying that the federal government is under no obligation to uphold the 14th Amendment?

I am saying DC is not a State. I cannot make it any simpler.

Danube of Thought

Can we take Laurence Tribe to be the spokesman for the traditional liberal viewpoint?

"Tribe, a Harvard law professor who is probably the most influential living American constitutional scholar, says he has already gotten hate mail about his new interpretation of the right to bear arms contained in the Second Amendment.

"Relegated to a footnote in the first edition of the book in 1978, the right to bear arms earns Tribe's respect in the latest version.

"Tribe, well-known as a liberal scholar, concludes that the right to bear arms was conceived as an important political right that should not be dismissed as 'wholly irrelevant.' Rather, Tribe thinks the Second Amendment assures that 'the federal government may not disarm individual citizens without some unusually strong justification.'

"Tribe posits that it includes an individual right, 'admittedly of uncertain scope,' to 'possess and use firearms in the defense of themselves and their homes.'"

As a life member of the NRA, and the son of a former president of that organization, I can tell you unsurprisingly that I hold to the "individual right" view. I also think it would be folly to argue that no reasonable restrictions can be imposed on that right, any more than that there can be no reasonable restrictions on freedom of speech (think fire in a crowded theater; think copyright laws; etc.)

Nothing remarkable in what I just said (I think), and nothing remarkable in what Tribe has said. What is remarkable to me is that, so far as we can tell, Obama considers a ban on all handguns reasonable. I don't. And I don't know what Tribe's view is.

ben

"It is by far the most libertarian and libertarian/conservative-friendly of the top law schools, without question, and the most friendly to the Law and Economics school, for obvious reasons."

If this is the case, are you saying Obama didn't learn anything?

Bias is as bias does

Am I crazy, or does anyone else remember Bias claiming that Obama's view is, quote, "coherent and clear"?

Nice how you omit the part about it not making any sense on the factual record, but being a perfectly logical position. It's about what I would expect from someone who thinks that DC is a State under the 14th Amendment.

MayBee

"If you're unaware that this is the standard liberal argument in second amendment litigation, I just can't help you."

That's in litigation, where extreme arguments are made by people who want extremes. Nobody goes to court to maintain an unchallenged status quo.
I could just as easily say the standard liberal argument is that the Pledge of Allegiance should not be said in elementary schools. Or that the standard liberal argument is that the boy scouts are bad. Those are the liberal-backed court cases you see, but they don't represent standard liberal argument in general.

Danube of Thought

I agree with Bias's analysis, so far as it goes. But the very easy way out--which Obama has taken--is to appear to take the libertarian/conservative view that there is an individual right while apparently reserving the possibility of eviscerating that right altogether in any "particular case." Bravely spoken.

Bias is as bias does

What is remarkable to me is that, so far as we can tell, Obama considers a ban on all handguns reasonable. I don't. And I don't know what Tribe's view is.

1. Neither do I. But thanks for stating it correctly -- all handguns. Not all guns.

2. Tribe is not the traditional liberal position, actually, because Tribe is one of the liberal scholars who switched over to the individual rights view, contrary to liberal orthodoxy, which is the militia view.

Tribe supported DC, which took the militia view, in Heller.

3. It is not clear if Obama and Tribe share exactly the same view.

ben

"It's about what I would expect from someone who thinks that DC is a State under the 14th Amendment."

Ok so I take that mean that Obama would not find a handgun ban constitutional in any other state or city in the U.S., he finds it constitutional only because it's in DC and that is not a state.

You really KNOW this, right?

Bias is as bias does

I agree with Bias's analysis, so far as it goes. But the very easy way out--which Obama has taken--is to appear to take the libertarian/conservative view that there is an individual right while apparently reserving the possibility of eviscerating that right altogether in any "particular case."

That's correct. The question for Obama is not, "Why you so crazy, incoherent, stupid liberal?"

It is: "Is there any specific gun control restriction that you would consider violative of the individual right to keep and bear arms that you believe in?"

M. Simon

The Miller decision turned on whether a sawed off shotgun was a militia weapon.

Since no argument was presented to support that assertion we got the Miller decision.

Miller was quite narrow.

Bias is as bias does

Ok so I take that mean that Obama would not find a handgun ban constitutional in any other state or city in the U.S., he finds it constitutional only because it's in DC and that is not a state.

That's the shit that DC argues in Heller. I think it's fucking bullshit, as I have tried to make clear.

mightysamurai
There are two analytical questions -- one is whether the right is individual and the other is the scope of that right. The point is one can reject the militia view propounded by DC while accepting on some factual-basis that the DC ban stands, which Breyer seems prepared to do.

Okay....how can one do that?

How do you say on one hand "The 2nd Amendment secures an individual right to keep and bear arms" while on the other hand saying "The government may ban individuals from owning guns"?

Either you believe it's an individual right or you don't.

I am saying DC is not a State. I cannot make it any simpler.

So you're making an "Obama-ism". A statement that is so vague as to essentially mean nothing at all.

I agree, DC is not a state. It is a federal district.

But the Constitution also states that Congress has jurisdiction "in all cases whatsoever" over the District of Columbia.

So answer me this. Is the Federal Government required to protect and uphold Constitutional rights in US territories, even though they are not states, or isn't it?

M. Simon

Obama hass to take the position that a total ban is within the scope of the 2nd because he is a Chicago Machine politician and Chicago bans all hand guns.

Jane

Learn to fucking read.

I'm shocked that a lawyer - particularly one for Obama, would talk like this. Altho I am impressed that a lawyer would actually post at this humble site.

BTW I want a big cannon. Hell why not?

Danube of Thought

I was unaware of what Tribe had done in Heller. Did he support D.C. on the ground that the militia view was correct, or did he only support it on the "reasonable ban" issue? If the former, I'd be very surprised, since I believe he had come out in favor of the individual right well before Heller.

"It is not clear if Obama and Tribe share exactly the same view" because no one really seems to know what Obama's view is. He has, apparently, said in the past that he views the D.C. ban as constitutional, but so far as I am aware he now declines to come out either for or against it. I would certainly welcome any recent citations to any expressions of his viewpoint.

Soylent Red

Blow those muthas up Jane.

mightysamurai
Nice how you omit the part about it not making any sense on the factual record, but being a perfectly logical position.

We keep asking you and asking you to explain how his position is logical, but you won't do it. You just keep saying "his position is logical, his position is logical, his position is logical" over and over again.

Once again, how can you believe that the 2nd Amendment secures an individual right to keep and bear arms, and also believe that the DC gun ban is Constitutional?

Are you saying Obama thinks DC residents have no Constitutional rights?

It's about what I would expect from someone who thinks that DC is a State under the 14th Amendment.

I love how in your first sentence you accuse me of misrepresenting your position, and in your second sentence you misrepresent mine.

Feel free to point out where I have claimed that DC is a state.

mightysamurai
That's the shit that DC argues in Heller.

That is not the question he asked you.

Ben asked you what OBAMA thinks, not what DC thinks.

Bias is as bias does

So answer me this. Is the Federal Government required to protect and uphold Constitutional rights in US territories, even though they are not states, or isn't it?

Actually, Laurence Tribe made an argument in an op-ed in the WSJ that Congress, through the DC Council, can ban all handguns because DC is a federal enclave, like Fort Knox. So he would say, "No, the federal government is not."

I -- speaking for me now -- THINK THAT IS BULLSHIT.

Based on the tenor of oral argument, so does every other Justice. It seems that Breyer, who plans to split the baby will not say "The government may ban individuals from owning guns," but rather that "there is an individual right, and government may ban handguns so long as rifles and long guns are available for use, i.e., some very, very dangerous guns, but not any and all guns." I THINK THAT IS BULLSHIT, TOO.

My point is that Obama could very easily sketch out an argument in between where the conservatives probably go and where Breyer ends up by reading the factual record and just making up some fact-based reason. Or he could just agree with Breyer.

Either way:

1. Obama agrees with the libertarians/conservatives on the nature of the right.
2. Obama agrees with the court's conceptual framework: individual rights + concern for local authority/federalism.

ben

"I think it's fucking bullshit, as I have tried to make clear."

Ok I think Bias is making progress. Obama is not an incoherent liar, he just believes in something that is fucking bullshit.

I stand corrected.

Danube of Thought

I think the answer to the samurai's question--not an answer that I support, by any means--would be that the ban is only on a particular firearm (pistols), and that such a ban is reasonable in the circumstances of DC. And that's the slippery slope on which Obama seeks to place the law.

Bias is as bias does

If the former, I'd be very surprised, since I believe he had come out in favor of the individual right well before Heller.

Indeed, he tried to merge his argument with theirs, which probably explained how much it sucked.

Here is Tribe in WSJ, advocating for Petitioners, who cited this in their briefs: http://online.wsj.com/article/SB120459428907209205.html?mod=WSJBlog

And here is Volokh and the Respondents on his flip-flop: http://volokh.com/posts/1204686443.shtml

Mightysamurai,
I cannot help you.

boris

Obama agrees with the libertarians/conservatives on the nature of the right.

BS. Claim that Obama agrees it an individual right and so do lib/cons. That is not the total nature of the right.

The real problem with the split baby approach is that once it's recognized as an individual right the public will no longer tolerate ridiculous interpretations. It becomes an even larger problem for dimorats to say "individual constitutional right but not for you".

Bias is as bias does

I think the answer to the samurai's question--not an answer that I support, by any means--would be that the ban is only on a particular firearm (pistols), and that such a ban is reasonable in the circumstances of DC. And that's the slippery slope on which Obama seeks to place the law.

That's correct. And I don't think that is bullshit at all. I just don't agree, because I find the empirical studies on the ineffectiveness of the ban persuasive.

Bias is as bias does

That is not the total nature of the right.

Listen, I don't want to have a fight on the meaning of the word "nature". I already broke it down into 1. collective/individual and 2. scope. I can't do the thinking for you.

Bias is as bias does

I'm shocked that a lawyer - particularly one for Obama,

When did I say I was for Obama?

Soylent Red

If what you are saying is what DoT posted, I have misjudged you Bias. In that event, I apologize.

And that's the slippery slope on which Obama seeks to place the law.

It is on this point that, even if I can accept everything else Obama says, I get nervous.

When you start segmenting society and saying that based on certain criteria one segment does not have the same rights as another segment, for whatever reason, you place a great deal of trust into the system and those in charge of it.

That trust doesn't come cheap for me, and a politician better damn well be able to give me clear and persuasive reasons why I should give it.

End of the day, Obamessiah isn't doing that.

mightysamurai
Actually, Laurence Tribe made an argument in an op-ed in the WSJ that Congress, through the DC Council, can ban all handguns because DC is a federal enclave, like Fort Knox. So he would say, "No, the federal government is not."

I -- speaking for me now -- THINK THAT IS BULLSHIT.

Then WHY ARE YOU ARGUING WITH ME?

Based on the tenor of oral argument, so does every other Justice. It seems that Breyer, who plans to split the baby will not say "The government may ban individuals from owning guns," but rather that "there is an individual right, and government may ban handguns so long as rifles and long guns are available for use, i.e., some very, very dangerous guns, but not any and all guns." I THINK THAT IS BULLSHIT, TOO.

Then, again, WHY ARE YOU ARGUING WITH ME?

My point is that Obama could very easily sketch out an argument in between where the conservatives probably go and where Breyer ends up by reading the factual record and just making up some fact-based reason. Or he could just agree with Breyer.

I confess I do not understand what point you have been trying to make on this thread.

You say Obama is "in the mainstream". So what? Being in the "mainstream" does not necessarily mean you have the correct answer.

You say Obama is "in line with Scalia, Roberts, Alito, and Kennedy". How so? As far as I know, none of them support any kind of gun ban, and none of them believes the DC gun ban is Constitutional.

You say Obama believes the 2nd Amendment "secures an individual right". How is this possible when you also admit he supports the DC gun ban?

You claim that you don't agree with the views in support of the DC gun ban. Then why are you here? If you agree with our view that the DC gun ban is wrong, then why are you arguing with us at all?

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