President Obama and the Heller Decision

Shotgun News, August 1, 2008, pp. 20-21

As I write this column in late June, there are two strong likelihoods on the horizon: the Supreme Court will recognize that the Second Amendment protects an individual right; and that Barack Hussein Obama will be our next president. Unfortunately, there is no certainty that winning before the Supreme Court won’t be effectively nullified by President Obama.

I am waiting with considerable anticipation for the Supreme Court to hand down a decision in the Heller case in the next few days. There is general agreement—even from gun control groups—that we are going to be handed a victory. The only question that remains is the nature of the victory. As a previous column explained, there are multiple possible outcomes, depending on the standard of review that the Court decides to apply.

A “categorical prohibition” standard would strike down effectively all gun control laws—leaving in place perhaps only the laws that prohibit convicted felons from possessing weapons. This is a very unlikely result.

Because of the remarks of Chief Justice Roberts during oral arguments, the Court might apply “categorical prohibition” to strike down the D.C. law—but refuse to provide a detailed explanation of what other gun control laws would be constitutional. This would pass the buck to another term of the Supreme Court to decide what laws would be allowed, and which would not.

A “strict scrutiny” standard would require the government to prove that any particular gun control law was both necessary and the least restrictive method of achieving a legitimate governmental purpose—such as public safety. There is a very real possibility that the Court would impose this standard, since it is the standard used for other parts of the Bill of Rights (and even for those rights that require you to wear special glasses to find in the Constitution, such as the right to an abortion, and the right to collect welfare).

There is a somewhat smaller possibility that the Court might apply a “heightened scrutiny” standard. This would only require that the government prove that there was a legitimate governmental purpose for a gun control law, and that there was some plausible connection. The government couldn’t just say, “We think this is a good idea.” They would have to actually provide some evidence that this law made people safer, and it would need to be more evidence than we could provide on the other side. Even most of the pessimists on our side who fear that the Court might decide that the Second Amendment only gets “heightened scrutiny” believe that the D.C. handgun ban has been such an utter failure that the Court will strike it down.

Here’s where President Obama comes into the picture. The Court could use “categorical prohibition” to strike down this law, but gives no other guidance about what the Second Amendment protects. The Court might apply “heightened scrutiny” but order the case to be retried as to whether the D.C. handgun law meets that standard. In either case, the courts would get another bite at the apple of the Second Amendment—and President Obama’s appointees to the Supreme Court get another chance to injure us.

There are several very elderly justices on the Supreme Court. Fortunately, our friends on the Court aren’t in that group. But it would only take one traffic accident, or another random D.C. criminal attack (such as injured Justice Souter several years ago), or an unexpected heart attack, to give President Obama the chance to replace one of the five (perhaps six) justices on our side to change the balance of power.

Don’t kid yourself that a good decision on Heller will be enough to protect us in the future. A Supreme Court without Justice Thomas, or Kennedy, or Scalia, and with a couple of Obama’s appointees, would be a very different climate. Such a Court would almost certainly find some way to claim that they were upholding the Heller decision—while so seriously damaging the Second Amendment that we would have a pretty scrap of paper affirming our Second Amendment right to keep and bear flintlocks—and only as part of the National Guard.

Gun owners are in deep and serious trouble in this election. John McCain is generally the friend of gun owners—although not consistently so. There is much about McCain that I like. I am confident that, unlike Obama, Senator McCain understands that the nature of our enemies abroad means that a group hug and polite conversation isn’t going to protect us. But Senator McCain is old, and looks older than he is. (Brutal treatment for years in a POW camp will do that to you.) This puts him at a distinct disadvantage when running against what many cynics now call Obama Messiah, because of the cult of personality that has developed around him.

Senator Obama has a huge warchest going into the campaign, far larger than McCain’s. The McCain-Feingold campaign finance law upheld by the Supreme Court has crippled the ability of independent election campaigns to get their message out—and Senator McCain, who introduced this law in a fit of pique at social conservatives for backing Bush in 2000—has been hoist by his petard.

Worst of all, Senator McCain has repeatedly gone out of his way to offend and upset social conservatives, figuring that he would rather lose the election, than risk getting elected by people like myself. Or perhaps McCain has decided that there aren’t enough social conservatives left in America to bother trying to get our votes. (He may be right about that. I ran for state senate here in Idaho in the May primary, and I found the experience quite disappointing.)

There are a lot of Republicans out there who insisted a couple of months back that they would not vote for McCain, because they were so disappointed at how the Party picked what was effectively a Democrat Lite. I understand the frustration. Generally, Republican nominees that have run strong and consistent conservative campaigns, such as Ronald Reagan, and George Bush Jr., have done well at election time. (I just wish that President Bush had run a strong and consistent conservative White House.) Republican nominees that were wishy-washy, or that had trouble staying on target, such as Bush Sr. and Bob Dole, have generally lost.

More than once have I heard McCain compared to Bob Dole’s disastrous 1996 presidential campaign. In both cases, these were men who served their country with distinction, suffering terribly for it. In both cases, they are Republicans who claimed to be conservatives, but clearly had not a clue what that meant. For all the left’s criticism of Bush as an intellectual lightweight, he manages to come across a good bit brighter than McCain or Dole. McCain acknowledges that he knows nothing about economics; some of his gasoline proposals of late suggest that “knows nothing” may be too charitable a description of his understanding of this subject.

But what’s the alternative? Barack Obama is that most remarkable of Democrats: someone so far to the left that Hillary Clinton has been attacking him for his support of gun control and naïve understanding of foreign policy. Obama’s involvement with Syrian-born crooks such as Antoin Rezko and Iraqi-born crooks such as Nadhmi Auchi,[1] deranged racists who think that the government intentionally created AIDS,[2] unrepentant Weather Underground terrorists such as Bill Ayers and Bernadine Dohrn,[3] support for a complete ban on handguns, makes him one of the most breathtaking combinations possible—astonishingly radical politics and the worst of Chicago machine corrupt politics. This guy makes Hillary Clinton look like an honest patriot. If that doesn’t scare you into voting for a glass half-full like John McCain, I don’t know what would.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores. His web site is http://www.claytoncramer.com.

[1] Associated Press, “Rezko Convictions Rains on Obama Parade,” Boston Herald, June 5, 2008, http://news.bostonherald.com/news/2008/view.bg?articleid=1098730, last accessed June 21, 2008; James Bone, Dominic Kennedy, “Obama bagman is sent to jail after failing to declare $3.5m payment by British tycoon,” London Times, February 1, 2008, http://www.timesonline.co.uk/tol/news/world/us_and_americas/us_elections/article3284825.ece, last accessed June 21, 2008.

[2] Rick Esenberg, “The revelation of Rev. Wright,” Milwaukee Journal-Sentinel, June 14, 2008, http://www.jsonline.com/story/index.aspx?id=761961, last accessed June 21, 2008.

[3] Michael Kinsley, “Rejecting Obama’s Radical Friends,” Time, May 28, 2008, http://www.time.com/time/magazine/article/0,9171,1810338,00.html?imw=Y, last accessed June 21, 2008.