Published March 02, 2010
Today the U.S. Supreme Court will hear a historic case regarding constitutional gun rights in McDonald v. City of Chicago. What position is the United States government taking in this case -- arguably the most important one this year? Surprise, surprise. Our government is not taking a position. Instead, President Obama is hiding under his desk in the Oval Office.
What a profile in courage.
When the Supreme Court handed down its landmark decision in District of Columbia v. Heller on June 26, 2008, ruling that the Second Amendment secures an individual right for private citizens to keep and bear firearms, then-Senator Obama decided to play some politics. Despite his longstanding record of denying gun rights, Obama said that he supported the Heller decision.
Obama knew that he couldn’t win the presidency without getting a good number of votes from America’s 90 million gun owners. At this point, he had already locked up the Democratic nomination, and was now focused on the general election. So he did a 180 on his long-held beliefs, and announced that the Court made the right decision in Heller.
He couldn’t help himself, however, from slipping in a covert anti-gun statement. In his remarks on Heller, Obama added that he still supported Chicago’s gun law, saying that, “I know that what works in Chicago may not work in Cheyenne.” As a Chicago politician, Obama had always supported the Chicago gun ban, saying as he did in his 2008 statement that the Second Amendment is, “subject to reasonable regulations enacted by local communities to keep their streets safe.”
Those of us who work and litigate in gun rights were pulling our hair out, because we knew that Chicago has essentially a complete ban on all guns, just like Washington. We all knew that this wasn’t a “reasonable regulation.” Just like the District of Columbia, Chicago doesn’t allow people to have guns at all, even in their own homes.
Little did Barack Obama know that on that very same day in June 2008, a lawsuit was filed challenging the Chicago gun ban. That case, McDonald v. City of Chicago, is what the Supreme Court will hear today, March 2 at 10 a.m.
In major cases, it’s typical for the Justice Department to file a brief informing the Supreme Court of the position of the United States. The Office of the Solicitor General -- the elite legal team that represents the federal government whenever the United States is a party in a Supreme Court case -- routinely files briefs in high-profile cases.
McDonald is as high-profile is it gets. It presents the question of whether the Second Amendment, like the First Amendment, is a right that law-abiding citizens have against state and local laws, or if, instead, it’s only a right they have against the federal government alone. The entire Bill of Rights, including the Second Amendment, originally only applied to the federal government. When the Fourteenth Amendment was adopted in 1868 after the Civil War, it extended most—but not all—of the Bill of Rights to also apply to cities and states.
Given that there are over 90 million gun owners in this country and thousands of gun control laws on the books—most of them state or local laws—McDonald is a monumental case.
So what is the position of the Obama administration? How can he oppose the rights of 90 million Americans, many of whom are blue collar union workers in swing states that he needs to win in 2012? To do so would also help drive Democrats into the minority in the 2010 midterm elections. On the other hand, how can he reverse his position of more than a decade in supporting Chicago’s absolute ban on firearms?
In this difficult situation, President Obama’s position is … Nothing.
The solicitor general filed no brief in this case. Just by way of comparison, in “Heller,” Solicitor General Paul Clement did more than file a brief, he actually fought for—and won—the right to share some of the oral argument time before the Court to fight for the position of the United States.
In McDonald, Paul Clement is again arguing before the Court. But now he’s representing the National Rifle Association, which as a party to this case, is again fighting for the right to keep and bear arms. Clement’s successor under PresidentObama, Solicitor General Elena Kagan, won’t be there at all—even on paper.
The difference here is stunning. If there’s one case this year where the Supreme Court needs the best legal analysis that the Department of Justice can give, it’s McDonald v. Chicago.
This is all the more stunning because of the number of briefs in this case. Over 50 briefs have been filed in this case. Fifty. Many of those represent more than one organization. (For example, the brief I wrote as a lawyer in the McDonald case is on behalf of four organizations.) With legal arguments flooding in on both sides of this issue, the White House’s silence is deafening.
The desk in the Oval Office is officially known as “the Resolute desk.” It was made from the timbers from the H.M.S. Resolute, a British ship, and presented as a gift to the president of the United States. With its auspicious name, the desk is considered a metaphor, signaling that the president of the United States must have firm resolve, nerves of steel, with the courage to take difficult stands to boldly assert what is in the best interest of the American people.
An American president should sit proudly at that desk, not duck beneath it. But instead of giving us leadership, President Obama is hiding underneath “the Resolute desk.”
Our president should have the courage of his convictions. If he opposes the right of American citizens to keep and bear arms, he should just admit it. It’s sad that a president who never seems at a loss for words and can’t wait to get in front of a camera has nothing to say to the American people about a key provision in our Bill of Rights.
What is your position on McDonald v. Chicago, Mr. President?
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union and is a frequent contributor to the Fox Forum.
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