Isn't Self-Defense Common Sense?

Jacob Sullum

2/27/2008 12:01:00 AM - Jacob Sullum

Under the Second Amendment, Barack Obama says, "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." The leading candidate for the Democratic presidential nomination thus seems to be on the same wavelength as the U.S. Court of Appeals for the District of Columbia Circuit, which in a decision last March said that "the protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."

But there is a crucial difference between these superficially similar formulations: The appeals court meant what it said, and Obama doesn't. Although the Illinois senator has learned to pay lip service to the Second Amendment, the details of his past and present positions on gun control suggest he neither understands nor respects the right to keep and bear arms.

In last year's ruling, which the U.S. Supreme Court will soon review, the D.C. Circuit overturned a Washington, D.C., gun law that bans possession of handguns in the home and requires that rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The law thereby effectively bars city residents from using firearms for self-defense in their own homes.

Obama evidently considers that de facto prohibition a "common-sense regulation," since he recently cited Washington's law as an example of constitutionally permissible gun control. "The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gangbangers and random shootings on the street isn't borne out by our Constitution," he said.

The D.C. gun law, passed in 1975, isn't really about gangbangers, which it has not exactly disarmed, or random shootings on the street, which it has not noticeably curbed. In effect if not intent, it is about disarming law-abiding residents who might want to protect themselves from gangbangers and other violent criminals.

It's not surprising that Obama sees nothing unconstitutional about this situation, since he does not acknowledge that the Second Amendment has anything to do with self-defense. "As a former constitutional law professor, Barack Obama understands and believes in the constitutional right of Americans to bear arms," his website claims. "He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport and use guns for the purposes of hunting and target shooting" (emphasis added).

This is the only substantive discussion of the Second Amendment on Obama's Web site. It's part of a document that lists "Protecting Gun Rights" as a subcategory of "Supporting the Rights and Traditions of Sportsmen," which is like listing "Protecting Freedom of Speech" as a subcategory of "Supporting the Rights and Traditions of Auctioneers."

It's true that hunting -- at the time an important source of sustenance, as opposed to the hobby it has become for most Americans -- was one of the gun uses the Framers had in mind when they guaranteed the right to arms. But as the D.C. Circuit emphasized when it found Washington's gun law unconstitutional, "the people's right to arms was auxiliary to the natural right of self-preservation," which was "understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

Because Obama ignores these aspects of the Second Amendment, he sees no constitutional barrier to a complete ban on the manufacture, sale and possession of handguns, which he supported when he ran for the Illinois Senate in 1996. Two years later, he said he favored a ban on the sale or transfer of all semiautomatic firearms, which would cover not only most handguns but also many hunting rifles and shotguns as well.

Responding to criticism that Obama has since changed his position on gun control, his campaign declares that "Obama has been consistent." If so, consistent civil libertarians -- the ones who do not mentally skip from the First Amendment to the Fourth -- should be worried.