November 26, 2008
A reader emailed me earlier today to ask what I think of Barack Obama's impact on the Second Amendment right to bear arms.
There are basically two dimensions to Obama's platform on Second Amendment issues: The legislature and the judiciary. In terms of federal legislation, McCain was nominally more libertarian than Obama on gun rights because he would have vetoed an assault weapons ban, where Obama probably will not veto such a bill if it crosses his desk.
But the judiciary issue is more interesting, and here the differences between the candidates are not necessarily significant. If we take it as a given that Justice John Paul Stevens, 89, is going to retire within the next four years, and he is replaced by a liberal justice, then this will not affect this year's landmark DC v. Heller Second Amendment case at all because Stevens dissented from the 5-4 majority anyway. The only way Obama can overturn DC v. Heller is by replacing one of the five justices in the majority, three of whom are 60 or younger and none of whom are over 75.
As I have noted before, however, gun rights is the one civil liberties issue where McCain did present a clear civil liberties advantage over Obama. My suggestion for gun rights activists is to focus on organizing on a statewide, citywide, or countywide basis to block gun control initiatives passed by state legislatures. Little can be done by Congress, but it's not terribly likely that Congress will do much more to restrict gun rights than what had already been done during the Clinton years, and any truly restrictive federal policies would almost certainly run afoul of the Heller precedent.