A Conversation with a Friend on the Constitution and Obama

The following is an e-mail conversation TRM had with a friend:

From: Friend
Sent: Thursday, February 26, 2009
To: TRM
Subject: FYI



Second Amendment Absent in Supreme Court Gun Ruling

Tony Mauro
02-24-2009

In spite of its recent support for an individual right to bear arms, the Supreme Court on Tuesday adopted an expansive reading of the federal law that bans possession of firearms by those who have been convicted of felonies or of "a misdemeanor crime of domestic violence."

The meaning of the phrase about misdemeanors was the issue in United States v. Hayes, decided by a 7-2 vote in a decision available here.

West Virginia resident Randy Hayes was prosecuted under that section of the law in 2005. The predicate crime that triggered the law in his case was a 1994 state conviction on charges of battery, where his victim was his wife.

But Hayes claimed that since the crime was simple battery, and was not specific to battery against a family member, it should not have triggered the firearm possession law. Hayes lost at the district court level, but the 4th U.S. Circuit Court of Appeals reversed, finding that the law comes into play only when the predicate crime has "as an element a domestic relationship." In other words, even though Hayes' victim actually was his wife, the appeals court said it does not count as a predicate crime because the crime was not specific to domestic violence.

Justice Ruth Bader Ginsburg, writing for the majority, said the 4th Circuit's approach would "frustrate Congress' manifest purpose" in including domestic violence crimes among the crimes that would result in loss of firearms. "If the Fourth Circuit were right in its analysis of the controlling legislation," Ginsburg said in announcing the ruling from the bench, "Congress' enactment would have been a dead letter in the majority of states from the very moment of its passage." Congress added the domestic violence provision in 1996.

In dissent, Chief Justice John Roberts Jr., joined by Justice Antonin Scalia, said that "right off the bat," the law should be read to require that a domestic relationship be an element of the predicate offense. Roberts also said that implementing the majority's view will entail "significant problems," requiring prosecutors to research the relationships in past crimes, rather than simply going by the category of the crime.

The case drew interest in part as a test of the strength of the right to bear firearms in the wake of D.C. v. Heller, last year's landmark declaration of an individual right to bear arms. The Second Amendment Foundation filed a brief in the Hayes case, urging the Court to adopt the narrower interpretation and to allow states leeway in defining crimes.

But, as Ohio State University law professor Doug Berman points out on his Sentencing Law and Policy blog, neither Heller nor the Second Amendment played a role in Hayes. "The Second Amendment and Heller do not even get mentioned by the dissenters, even though the majority's ruling would seem to provide a green light to jurisdictions looking for pretty easy ways to functionally work around the rights supposedly championed in Heller."

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Heller decision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

This article first appeared on The BLT: The Blog of Legal Times.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From: TRM
Sent: Thursday, February 26, 2009
To: Friend
Subject: RE: FYI





And this is news:



http://thehill.com/leading-the-news/obama-administration-revives-assault-weapons-debate-2009-02-26.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


From: Friend
Sent: Thursday, February 26, 2009
To: TRM
Subject: RE: FYI



This further confirms that despite all that blather about Obama being a “centrist,” he remains the same far-left ultraliberal that his voting record shows he’s always been. His honeymoon will, I think, prove very brief as his lack of any true leadership or managerial experience in an executive capacity becomes more and more clear to more and more people. And despite all that hurrahing about the Democrats being in control in Congress, a significant number of them come from the more conservative states and are not going to blindly follow the other lemmings as Obama leads them over the cliff to sure defeat in the next Congressional election, at which point my prognostication is that the economy will still be in the toilet, except that we’ll owe trillions more than we do now.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From: TRM
Sent: Thursday, February 26, 2009
To: Friend
Subject: RE: FYI



First, I do not share your total pessimism about the economy (In fact, if I had any money, I would start to invest in the market at this point for long term purposes. As Baron Rothschild is reported to have said, “The time to buy is when blood flows in the streets.”). But this is an area where every “expert”, regardless of philosophy or party affiliation, is only guessing. There are very good reasons why economics is called “the dismal science”.



Second, Nancy Pelosi said that the House will not take up the issue of automatic weapons controls precisely because she does not want to force the more conservative Democrats into a comfort zone with the Republicans, who may be their more natural allies. She knows that would be the beginning of a political disaster.



Third, if Obama does turn out to be swimming outside the political mainstream, then the electorate will have to wait just about 20 months for mid-term elections to let him know what they think.



So cheer up!