Clauses and Effects

Regarding this week’s Supreme Court ruling in the case of District of Columbia v. Heller: conservatives are too happy and liberals are too upset. While the Court did apparently resolve a fundamental legal question, one that had languished for over a century, by interpreting the U.S. Constitution’s oddly punctuated Second Amendment as protecting the right of individuals to own a gun for non-military purposes, the decision is likely to have very little practical effect. Justice Antonin Scalia’s majority opinion did not endorse the extremist view that virtually any gun-control legislation represents an infringement of the right to bear arms; indeed, he explicitly stated that the Court’s opinion allowed for “laws imposing conditions and qualifications on the commercial sale of arms” and other gun-related legislation. Only highly restrictive gun laws, such as the one at issue from Washington, D.C., that effectively banned possession of handguns altogether for most people, would run afoul of the Court’s decision. There will certainly be lawsuits in a few cities such as Chicago, but the vast majority of existing gun legislation is safe. Indeed, it’s not even clear whether the Heller decision applies to state and local governments; the Court was able to sidestep this issue because the District of Columbia is under federal jurisdiction.

The fact is, very few jurisdictions, most of them large cities where liberals far outnumber hunters, could even pass a law as restrictive as the D.C. ban, which brings me to a larger legal point about the Heller decision. Notwithstanding Justice Scalia’s endless (and highly selective) historical analysis, which I won’t pretend to have read nearly all of, this decision was not a triumph of originalism, the doctrine espoused by some conservative legal scholars that essentially boils down to the absurd notion that we should continue to be governed by the antiquated standards of 1787 (or 1791). Rather, Scalia’s opinion was an example of living constitutionalism in action, based on the type of reasoning that conservatives have disparaged on other occasions as “judicial activism.” While it may ultimately be impossible to ascertain how the founding fathers may have intended the relationship between the Second Amendment’s prefatory and operative clauses, there can be little doubt that the individual right to bear arms has long been enshrined in practice in this country. The law simply hadn’t caught up yet.

Liberals also stand to gain from this decision in terms of electoral politics. The Supreme Court’s affirmation of the individual right to bear arms should have the effect of taking the gun issue, a perennial loser for Democrats, off the table. It’s now going to be very difficult to make the argument that an Obama administration would be in the business of confiscating people’s guns, a claim the Republicans were able to make very effectively against Al Gore in 2000, despite its lack of any basis in reality. Obama’s own reaction to the decision, a cautious endorsement tempered by an acknowledgment of the need for big cities to have all the necessary tools at their disposal to fight gun violence, will no doubt be characterized as equivocation in some quarters, but seemed appropriately nuanced.

Against Interpretation

Hello again. I've been neglecting the blog over the past several months; most of my blogging time has gone into obsessing over the presidential election, which I've been unable to write about due to the stomach-churning dread that seized me whenever I began to seriously contemplate the prospect of another Clinton administration. John McCain, particularly in his recent, base-pandering incarnation, would make a far worse president than either of the Clintons in any number of important respects, but I must confess he doesn't quite have the same visceral effect on me. Or it may just be that I don't think he's going to win.

There will be much more time to discuss the race over the next four-and-a-half months, and I'll certainly do so here. But today I'd just like to highlight one aspect of the primary season that will continue to be of relevance going forward. One of the major themes of this campaign has been the tension between Obama's conception of a "new politics" that aims to lower the temperature of partisan discourse in Washington and a news media establishment that's heavily invested in creating conflict for its own sake to provide fuel for the narratives that drive the day-to-day news cycle. Among the deadliest weapons at their disposal for this task is that of interpretation. Ten years after we asked ourselves what the definition of is is, we are now smack in the middle of the Era of Parsing, in which no word, expression, or gesture is too small to provoke the all-important question: What does it mean?

I could easily cite dozens of examples of the politics of interpretation from the recent Democratic primary campaign just by recounting the daily rounds of overheated press releases and conference calls by which the campaigns of all candidates feed the beast. But the purest examples are the stories that seem to gain their own momentum, usually lasting from a few days to a few weeks. Among the greatest hits: Obama's alleged "snub" of Clinton at the State of the Union address, the recent flap over Clinton's RFK comments, and the slightly less recent flap over Obama's "bitter" comments, which approached self-parody when one blogger declared that the problematic word in Obama's statement (made off-camera at a private gathering, let us not forget) was not "bitter" but "cling" (apparently "surprising," "people," and "to" were considered unobjectionable).

I'll continue to expand on this analysis over the next several months, but I'm not above some horse-race coverage as well. I'm a bit suspicious of the predictive power of polls this early in the race; I don't think they have a lot of meaning before Labor Day or so. (Bear in mind that a poll taken five months before the start of the primary season would have indicated that Clinton and Rudy Giuliani would be the nominees.) Nevertheless, a pair of frequently updated electoral-college maps based on polling data can be found here and here. The lists below represent my current take on each state based partly on polling data, demographic trends, and historical patterns but also on my own subjective sense of how the race is going, the same sense that told me Obama was going to lose the New Hampshire primary, no matter what the polls and pundits were saying.

STRONG MCCAIN (157): Alabama (9), Arizona (10), Arkansas (6), Georgia (15), Idaho (4), Kansas (6), Kentucky (8), Louisiana (9), Mississippi (6), Nebraska (5), North Dakota (3), Oklahoma (7), South Carolina (8), South Dakota (3), Tennessee (11), Texas (34), Utah (5), West Virginia (5), Wyoming (3)

WEAK MCCAIN (64): Alaska (3), Florida (27), Indiana (11), Montana (3), Nevada (5), North Carolina (15)

TOSS-UPS/TRUE SWING STATES (62): Colorado (9), Missouri (11), New Hampshire (4), New Mexico (5), Ohio (20), Virginia (13)

WEAK OBAMA (55): Iowa (7), Michigan (17), Pennsylvania (21), Wisconsin (10)

STRONG OBAMA (200): California (55), Connecticut (7), Delaware (3), District of Columbia (3), Hawaii (4), Illinois (21), Maine (4), Maryland (10), Massachusetts (12), Minnesota (10), New Jersey (15), New York (31), Oregon (7), Rhode Island (4), Vermont (3), Washington (11)

"Strong" states are those that I don't currently see becoming competitive, whereas in "weak" states, I can easily imagine the other candidate pulling an upset. This is merely a baseline for the race; states can and will move among the categories as conditions warrant. The alert reader will note that I've already moved Iowa, a state where President Bush beat John Kerry in 2004, into the Obama column. It's also worth noting that Bush won all six of my true swing states at least once, and most of them twice.

R.I.P. Tim Russert, a journalist who always knew the next question and seldom failed to ask it. He will be missed.