Barack Obama and Gun Control: Effective and Shrewd

[Tim Nunan]

http://www.britannica.com/blogs/2010/12 ... nd-shrewd/


David Kopel - December 14th, 2010

During the 2008 election, many people warned that Barack Obama was hostile to Second Amendment rights. Two years into the Obama presidency, has the warning proved accurate? Yes, it has—but with the important caveat that President Obama, unlike President Bill Clinton, has been thrifty in his expenditure of political capital to advance gun control.

Whatever else can be said about President Obama’s performance on the economy, he certainly helped stimulate the firearms business. From the time that Obama wrapped up the Democratic nomination in the summer of 2008, and continuing through most of 2009, Obama’s rise to power stimulated a tremendous surge in the purchases of firearms and ammunition. The last time that such a surge had taken place was in 1993-94, when many Americans accurately realized that President Clinton was pushing hard for dramatic restrictions on Second Amendment rights.

Given Barack Obama’s previous record, similar concerns were understandable. He had endorsed handgun prohibition, had voted repeatedly in the Illinois legislature for wide-ranging bans of many different types of firearms, and had proposed a ban on gun stores within five miles of a school or park. (That is, from almost the entire inhabited portion of the United States.) Even in 2008 he had affirmed his support for the handgun ban in Washington, D.C.

With the exception of Interior Secretary Ken Salazar, President Obama’s initial appointees to jobs that had some relation to firearms law or policy tended to be individuals with a strong record of leadership on the gun control issue, such as Attorney General Eric Holder and Secretary of State Hillary Clinton.

As the first few weeks of the Obama administration unfolded, the Obama administration began laying the foundation for a renewed campaign for gun control. Shortly before inauguration, President-elect Obama met Mexican President Felipe Calderón. President Calderón and the rest of his administration have been vociferous advocates of U.S. gun control; the Mexican government blames U.S. firearms laws for the drug cartel violence in Mexico.

At high-level meetings in the early months of 2009 with President Obama, Secretary of State Clinton, and Attorney General Holder, Mexican officials used the opportunity to make public statements urging American gun control.

The Obama administration responded. First, President Obama announced that he was submitting the CIFTA treaty [to the U.S. Senate for ratification. (Formal name: Inter-American Convention Against the Illicit Manufacture of and Trafficking in Firearms.) This Organization of American States gun control treaty had been negotiated under President Clinton in 1997, but never submitted to the Senate for ratification. If approved by the Senate, CIFTA would commit the U.S. to dramatic changes in domestic firearms regulation. For example, the millions of Americans who manufacture ammunition at home for personal use, or who tinker with their firearms by replacing or adding various parts, would be required to obtain firearms manufacturing licenses from the U.S. government.

Second, on Feb. 25, 2009, Attorney General Holder called for renewal of the federal ban on so-called “assault weapons.” Enacted in 1994, the Clinton-era ban on “assault weapons” had outlawed 19 guns by name and another 200 by generic definition. The ban sunset in 2004, and renewal of the ban was the top priority of the American gun control lobbies.

So far, so good, from the gun control viewpoint. But then, the Obama administration gun control agenda hit a brick wall.

Triggered by Attorney General Holder’s remarks, the National Rifle Association collected the signatures of 65 House Democrats for a joint letter to the Attorney General stating their opposition to a new ban on “assault weapons.” The number of signatures on the letter made it clear that in a floor vote on the U.S. House of Representatives, there would be a very solid pro-gun majority, considering that almost all Republicans in the House had been rated “A” or “B” by the NRA during the 2008 election.

House Speaker Nancy Pelosi (D-San Francisco) had never been “pro-gun,” but she knew that her Democratic majority depended on Democrats in swing districts who were. So she too rebuffed Holder’s call for an “assault weapon” ban, and said that the government should enforce the laws which are already enacted.

The Obama White House, apparently taking that pragmatic position that political capital should only be spent on things that have some possibility of success, backed down, and soon Attorney General Holder was echoing the NRA line, stating that the administration was going to “enforce the laws on the books.”

Meanwhile, thanks to Senate Majority Leader Harry Reid (D-Nevada), CIFTA went did not even get a committee hearing in the Senate. Garnering the 67 votes for ratification in the Senate would have nearly impossible, for it turned out the Senate too had a hefty pro-gun majority. By very large majorities, the Senate tacked on pro-gun amendments to other legislation that the administration wanted to pass: to the credit card and consumer banking bill the Senate added an amendment stating that in National Parks, persons could carry guns to whatever extent they were allowed to carry in state parks in the host state. To a transportation funding bill, an amendment was added allowing the transportation of unloaded firearms in checked baggage on Amtrak. To the bill giving the District of Columbia a voting member in the House of Representatives was added an amendment restoring Second Amendment rights in the District, by repealing most of the District’s extremely onerous gun licensing and registration system. (Even post-Heller, that system is among the most repressive in the nation.)

The National Parks and Amtrak amendments became law, as the President signed the underlying legislation and did not complain about the amendments. The DC voting bill was withdrawn at the request of its sponsors, since the DC city government preferred to forgo House representation rather than allow DC residents to buy gun under the same terms that residents of the adjacent Virginia suburbs can buy guns.

Although the gun control lobbies continue to insist that their issue is a political winner, the White House decisions reflected the conventional wisdom in Washington that gun control is a third rail of American politics, and that, at least at the national level, promoting it is futile in a policy sense, and harmful in a political sense.

Meanwhile, the Supreme Court took up the case of McDonald v. Chicago, to decide whether the Fourteenth Amendment made the Second Amendment applicable to state and local governments. (As the Fourteenth Amendment has made almost all of the rest of the Bill of Rights so applicable.) Unusually for a major constitutional case, the Solicitor General’s Office stayed on the sidelines, and did not file an amicus brief. The neutrality likely reflected consideration the facts that Obama, as an Illinois State Senator, had been an ardent defender of the Chicago handgun ban, balanced against the conventional wisdom (which turned out to be correct) that the Court would rule against Chicago, plus the expectation that formal administration legal support of the Chicago ban would be politically catastrophic.

Yet while the Obama administration has chosen to spend its political capital on economic and health issues, rather than gun control, the administration has significantly aided the gun control cause in areas where it has freedom of action.

To begin with, the Obama delegation to the United Nations reversed the Bush administration position, and now officially supports the UN’s Arms Trade Treaty, which is currently being drafted, and is expected to be completed by 2012. No one knows for sure what the treaty will contain, but international gun control advocates are doing their best to make sure that it provides an international law foundation for domestic gun control in the United States, and everywhere else.

Second, in November 2010, President Obama nominated Andrew Traver as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Traver had a solid record as a gun control advocate and leader. Although Obama had been criticized by gun control groups for leaving the position vacant for nearly two years, the White House was politically wise in waiting until after the elections, so as not to create trouble for Democratic Senate candidates on the gun issue. Traver may have a tough time winning Senate confirmation, although the President also has option of using a recess appointment to put Traver in place. Regardless, Traver will serve as Acting Director unless and until he is rejected by the Senate.

Notably, at the administrative regulatory level, the administration has promoted gun control on a variety of fronts. The Department of Defense announced that it would stop selling surplus ammunition casings to the domestic market. The Customs and Border Protection agency announced a regulatory interpretation that would ban the import and interstate sale of 80 percent of folding knives. The State Department used existing legal authority to block the import of 850,000 US-made M1 Garand and M1 Carbine rifles which the South Korean military wished to sell to U.S. consumers. The Bureau of Alcohol, Tobacco, Firearms and Explosives changed a statutory interpretation so as to make it much more difficult for firearms testing companies, firearms patent lawyers, firearms journalists, and the like to temporarily acquire firearms for testing—even though BATFE admitted that the old system had never led to a single instance of firearms misuse.

Not all of these regulatory forays succeeded. Congress changed 1958 Switchblade Act so as to block the knife ban, and the Department of Defense backed down under pressure from Montana Democratic Senators Jon Tester and Max Baucus. But the South Korean rifles are still in South Korea, and the new BATFE regulation is now the law of the land.

Most significantly, from a Second Amendment perspective, President Obama appointed Sonia Sotomayor and Elena Kagan to the United States Supreme Court. Both appointees had well-established records of hostility to gun rights. Although Sotomayor promised that she would stand by the Supreme Court’s precedent in District of Columbia v. Heller, which recognized a Second Amendment right belonging to all law-abiding Americans, not just the militia, at the first available opportunity she voted to over-rule Heller. The White House seems to have made the correct calculation that although the Second Amendment issue would cause trouble in the confirmation process for both nominees, the large Democratic majorities in the Senate would stick with the Democratic President on a Supreme Court nomination, especially since the nomination vote was not purely a gun control vote.

While it is fashionable right now, on a bipartisan basis, to deride the Obama White House as politically inept, the Obama record thus far on gun control shows an administration that is effective and shrewd. Unlike President Clinton, President Obama has not elevated gun control to the top of the national political debate—a wise move in light of the conventional wisdom that gun control cost the Democrats Congress in 1994, and the Presidency in 2000 and 2004. Nor has President Obama wasted political capital on unwinnable gun control fights in Congress; instead, he has used that capital on fights he could win, such as spending, business regulation, and health care.

The early months of 2009 made it clear that the 2008 elections were no mandate for federal gun control, and that most of Congress considered gun control to be only slightly more popular than dog-fighting. In such a political environment, the Obama administration prudently confined its gun control efforts to areas where the Executive Branch can act unilaterally, and in fields which were unlikely at attract much mainstream media attention. The only exceptions were the Supreme Court appointments, and here the administration won very important long-term victories for the gun control movement.

While President Obama has not displayed the public zeal for high-profile gun control fights that the gun control lobbies demand, he has accomplished about as much for them as could be accomplished given the make-up of Congress. Not since the days when President Richard Nixon’s Bureau of Alcohol, Tobacco and Firearms made gun collectors into a primary target has an administration done so much for the gun control cause with so slight an expenditure of political resources. If there were a “most efficient producer” prize for gun control supporters, President Obama would be the winner.