I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.Regrettably, his uncompromising defense of the Constitutional right to privacy is belied by the approach to the Second Amendment. While campaigning in Iowa on 5 December 2007, even as he acknowledged that gun ownership “is an individual right and not just the right of a militia”, Obama stressed that “all rights […] are constrained by the needs and the rights of the community”.
I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.Contrary to his claim of constancy, Obama was not always thus. On 20 November 2007, James Oliphant and Michael J. Higgins reported in the Chicago Tribune that according to his campaign, “Obama believes the D.C. handgun law is constitutional.” (Since then, the newspaper has removed their article from its archive.) A few hours before the Supreme Court published its Heller ruling, an Obama spokesman disclaimed his campaign’s statement to the contrary to ABC News, as “obviously an inartful attempt to explain the senator’s consistent position.” By this standard, any consistency to be found in the senator’s position, consists in saying whatever the situation calls for. In a February 12 interview, Leon Harris of WJLA, the ABC affiliate in Washington, asked Obama, “You said in Idaho here, recently, that ‘I have no intention of taking away folks’ guns.’ But you support the D.C. handgun ban, and you’ve said that it’s constitutional. How do you reconcile those two positions? ” Obama replied:
As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today’s decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.
Because I think we have two conflicting traditions in this country. I think it’s important for us to recognize that we’ve got a tradition of handgun ownership and gun ownership generally. And a lot of people—law-abiding citizens use if for hunting, for sportsmanship, and for protecting their families. We also have a violence on the streets that is the result of illegal handgun usage. And so I think there is nothing wrong with a community saying we are going to take those illegal handguns off the streets, we are going to trace more effectively, how these guns are ending up on the streets, to unscrupulous gun dealers, who often times are selling to straw purchasers. And cracking down on the various loopholes that exist in terms of background checks for children, the mentally ill. Those are all approaches that I think the average gun owner would actually support. The problem is, that we’ve got a position, often times by the NRA that says any regulation whatsoever is the camel’s nose under the tent. And that, I think, is not where the American people are at. We can have reasonable, thoughtful gun control measure that I think respect the Second Amendment and people’s traditions.Three days later, on 15 February, at a press conference in Milwaukee, Obama elaborated his position:
There’s been a longstanding argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation. […] I think that local jurisdictions have the capacity to institute their own gun laws. […] The City of Chicago has gun laws, as does Washington, D.C. I think 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 borne out by our Constitution.Writing for the majority in Griswold, Justice Douglas ruled that the “zones of privacy” emanate from the First Amendment’s right of association, the Third Amendment’s prohibition against the quartering of soldiers in any house without consent in peacetime, the Fourth Amendment’s guarantee against unreasonable searches and seizures, and the Fifth Amendment’s privilege against self-incrimination. His colleagues were unpersuaded. Justice Potter Stewart, famous for knowing it when he saw it, found no constitutional infringements in the contraception ban at issue. Justice Hugo Black averred: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Favoring penumbral emanations over specific, enumerated constitutional rights is unlikely to withstand judicial scrutiny. Thus the stage is set for probing Obama’s position on local jurisdictions instituting their own abortion laws.