Obama and the Second Amendment

Despite a huge Democratic Senate majority, Eric Holder’s confirmation hearings are going to be difficult. He has a long record to defend. Whether it is his involvement and inconsistent statements about Bill Clinton’s pardon of fugitive financier Marc Rich or his pushing Clinton’s clemency of the FALN terrorists or his failure to disclose his work for troubled Illinois Governor Rod Blagojevich after Blagojevich's legal problems surfaced, he faces tough questions.

But Holder’s nomination raises other questions about what President-elect Barack Obama claimed he believed during the campaign. Numerous times he promised that he supported an individual’s right to own guns and that he wouldn’t do anything to take away people’s guns.

Just last year in a brief to the Supreme Court, Holder argued that “the Second Amendment did not protect an individual right to keep and bear arms,” that it only protected government militias’ rights to guns. He claimed that the Second Amendment posed no obstacle to implementing gun bans.

I can’t find even one gun control law that Holder has opposed. On every gun control regulation he has discussed, he has been supportive, including: bans, raising the age that someone can possess a gun, registration and licensing, one-gun-a-month limit on purchases, and mandatory waiting periods.

Even more troubling, while Holder served in the Clinton Justice Department, he oversaw the background check system, but he has never been asked to explain why the system broke down so consistently while he ran it.

The constant breakdowns of "instant" background-check systems during the Clinton administration halted gun sales for hours or even days at a time, costing stores untold sales and additional costs. Even by the end of the Clinton administration, from September 1999 to December 2000, the system was was down about one hour for every 16.7 hours of operation. The breakdowns often came in big blocks of time, the worst during a period covering 60 business hours during two weeks in the middle of May 2000. During his tenure, gun shows sometimes found that they couldn’t sell guns during the entire weekend that they were open.

Try running a business where you face random shutdowns and neither customers nor sellers are ever informed of how long outages are expected to last. In addition to the government-imposed fees on gun sellers and the regulatory harassment of gun sellers with no evidence that these policies have reduce crime, it is not surprising that the number of gun dealers has plummeted by over 80 percent since 1992.

The breakdown in background checks, which had been a problem for years under the Clinton administration, magically fixed itself within weeks of President Bush assuming office in 2001, and the problems have not recurred.

What few realize is the huge power that the Attorney General has to make legitimate gun selling very difficult without any new laws or regulations having to be passed. This is even more important now than it was under the Clinton administration as the Bureau of Alcohol, Tobacco, and Firearms has recently moved from the Treasury Department to the Justice Department.

I always questioned Obama’s claims and argued that up until the presidential campaign his whole career had supported gun bans, but there was no lack of politicians and advisers who attested to Obama’s sincerity on the issue. Obama and his campaign constantly tried to explain away his past support for gun control as being mistakes by subordinates who had incorrectly explained his positions.

Brian Schweitzer, Montana Democratic governor, promised national reporters last August that Mr. Obama “He ain't going to take your gun away. He ain't ever going to take your gun away.” Joe Biden made similar statements while campaigning in places such as rural southwest Virginia on the gun issue. An Obama adviser, Stanford Law Professor Larry Lessig, said on Hugh Hewitt's national radio show last fall that "I think that he has always been an individual rights person on the Second Amendment." Another advisor, Professor Cass Sunstein at Harvard, told Time Magazine in June: "Obama has always expressed a belief that the Second Amendment guarantees a private right to bear arms." The list goes on. It was a constant theme of the campaign.

Just before the November election, the Los Angeles Times questioned the honesty of those who questioned Obama’s stand on guns, because "Obama does not oppose gun rights. He has made a point of pounding this home to rural audiences, telling them he has no intention of taking their guns away: not their shotguns, not their handguns, not anything."

There are few such issues that the Obama campaign promised over and over again during the campaign.

Holder’s nomination suggests this promise was not serious. And it also suggests that Obama won’t appoint judges who believe it either. With Appeals Courts around the country already facing Second Amendment cases and a very closely divided Supreme Court likely to rehear the issue, the judges Obama will appoint could easily reverse last year’s Supreme Court decision striking down the DC gun, a decision that he claims to support.

*John Lott is the author of Freedomnomics and a senior research scientist at the University of Maryland.