This split should be useful to either of the Presidential candidates who wants to make either gun control or gun rights into an election issue -- my guess is that this is more likely to be McCain. Expect McCain ads in states where there are likely many pro-gun swing voters stressing, "your constitutional right to keep and bear arms hangs by one vote." Also expect fundraising letters to likely pro-gun contributors stressing this at length.
Are guns the keys to the kingdom for McCain? Judging by the rapidity of the RNC's reaction to DC v. Heller, the craftmanship of McCain's statement and the sudden appearance of McCain surrogates on the cable networks, the answer is: he thinks [so].
Before the ruling was issued this morning, the Obama campaign, disavowed its "inartful" statement last year that "Obama believes the D.C. handgun law is constitutional."
The D.C. gun ban was clearly doomed. Scalia writing the lead opinion made a broader coalition less likely, and indeed the Court split 5-4, along typical ideological lines. And yet, based on a quick stand, Scalia's opinion wasn't exceptionally broad -- while striking down the D.C. ban it emphasized that the reasonable regulation of gun ownership was perissible.
Individuals have a constitutional right to possess a basic firearm (the line drawn is unclear, but is basically those weapons in general lawful use and does not extend to automatic weapons) and to use that firearm in self-defense. The government can prohibit possession of firearms by, for example, felons and the mentally ill. And it can also regulate the sale of firearms, presumably through background checks. The Court leaves open the constitutionality of a licensing requirement.
From a policy perspective, what DC is trying to accomplish is just futile -- as long as the District is a very small patch of land adjacent to Virginia, there's no way gun regulations of this sort will prevent criminals from acquiring weapons.
This part was expected -- the key will be how broadly they read it, and whether it jeopardizes federal gun legislation.
When I bag my first D.C. deer with my handgun, I will send a shoulder of venison to Justice Scalia in grateful admiration. If I manage to take out any muggersor bystanders caught in the crossfireI will send him their carcasses as well.
Some disappointing legal positioning from the Obama campaign in the past few days, as Obama put out a statement disagreeing with a 5-4 decision on the Supreme Court's decision to bar the execution of child rapists (if Obama's position were adopted, it would be the first time since the 60s that criminals have been put to death for crimes that don't include murder) and his campaign flipped its position on the constitutionality of the DC handgun ban (were they once said Obama believed the ban unconstitutional, now they say he has no position on it).
As it happens, I actually don't have a position on the constitutionality of the DC gun ban, don't much care about Obamas position on it. He's going to get hit for opportunism, but this is more the campaign being inartful than illiberal. At the same time, thought it's not hard to see why Obama would want to take a maximally punitive stance against child rapists, he's placing himself on the right of Breyer, Stevens, Ginsberg, Souter, and Kennedy and fighting their attempts to rollback capital punishment.
After today's decision, gun death acceptance seems to be as embedded in law as it is in the psyche. The bad guys have guns, people argue, therefore the good guys should have them. This is not a bad argument, though it would be refuted if the government seriously decided to remove guns from society as a whole. Others say it's not guns that kill people, it's people that kill people. This is a terrible argument for reasons that are so obvious I shan't bother to rehearse them here. Gun culture remains one of America's greatest aberrations. It baffles other nations. But there you go.
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