Image: customer at a gun shop
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With many citizens convinced of their right under the constitution to keep and bear arms, politicians are reluctant to take on the gun issue and the powerful gun lobby.
By NBC Reporter
updated 10/6/2008 10:29:04 AM ET 2008-10-06T14:29:04

This election cycle, msnbc.com is presenting a weekly series, Briefing Book: Issues '08, assessing issues and controversies that the next president must confront.

This week, we take a look at guns. Whether it is for small-game hunting, for weekend trips to the shooting range, or for the security offered by a weapon in a locked cabinet, gun ownership is a source of pride and personal safety for millions of Americans.

An estimated 34 percent of Americans own a gun, and the total number of firearms owned by private citizens in the United States exceeds 200 million. The prevalence of gun ownership underscores its status as a cherished personal right for many, but the incidence of firearm-related crime also makes the regulation of guns one of the nation's most contentious legal and cultural issues.

Why it matters
Last year, the nation watched in horror as the death toll mounted in the rampage at Virginia Tech. More than 30 college students were mowed down by a mentally-ill student. The perpetrator, Cho Seung-Hui, legally purchased the two guns used in the massacre from a Virginia gun dealer.

But the semi-automatic ammunition used in one of the weapons would have been illegal under an assault weapons ban that expired in 2004, and Cho's well-documented psychiatric illness was not included in the results of a required background check because he was treated as an outpatient and was never admitted to a hospital.

Even as the men and women running for the presidency swiftly reacted with earnest expressions of grief, some criticizing the holes in gun regulation that allowed Cho to wield the weapons, Republicans and Democrats alike were quick to express their support for the right of everyday Americans to own guns.

"This brutal attack was not caused by, nor should it lead to, restrictions on the Second Amendment," Sen. John McCain said.

In the United States, the legal right to own a firearm derives from the Second Amendment to the Constitution, penned in 1789, which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Those 27 words have launched volumes of analysis by constitutional scholars and interest groups who disagree over the founding fathers' intentions for gun ownership in times of peace. Some gun opponents believe that the Second Amendment only permits firearms in the hands of those serving collectively in the nation's defense, while gun rights organizations such as the National Rifle Association believe that it guarantees the fundamental right of all law-abiding citizens to buy, own, transfer, and carry weapons without government interference.

That question, debated for almost 200 years, was first directly addressed by the Supreme Court in June 2008, when the court ruled in a 5-4 decision that the Second Amendment refers to gun ownership as an "individual right," affirming in the District of Columbia v. Heller case that a citywide ban on handguns was unconstitutional.

Supreme Court Hears First Gun Rights Case In 70 Years
Mark Wilson  /  Getty Images
Protestors hold pro-gun signs in front of the U.S. Supreme Court Building, March 18, 2008 in Washington, D.C.
The nation’s capital was a particularly fitting locale for a dispute over gun rights. In the 1990s, the city earned the regrettable nickname of "the murder capital of America," with the highest rate of firearms deaths per capita in the United States. Although crime has decreased substantially, the city continues to rank in the top 20 nationally for violent crime.

In 2006, according to FBI statistics, there were 14,831 homicides in the United States. Almost 70% were committed with a firearm, and nearly half were committed with the type of handguns that the city of Washington attempted to ban.

Although the court's landmark decision put to rest — for now — the question of the government's power to forbid a citizen from keeping a gun in his or her home, regulations on the sale, tracing, and concealed carrying of weapons remain very much in dispute. And some continue to question the need for average citizens to own many types of deadly weapons and ammunition, such as semi-automatic rifles and the high-capacity magazines used by Cho in last year's massacre at Virginia Tech.

Video: Key ruling "He had a semiautomatic weapon with a clip that allowed him to take 19 shots in a row," Barack Obama told a crowd in Nashua, N.H., after the shooting. "I don't know any self-respecting hunter that needs 19 rounds of anything. The only reason you have 19 rounds is potentially to do physical harm to people. You don't shoot 19 rounds at a deer. And if you do, you shouldn't be hunting."

Where the candidates stand
Both McCain and Obama agree with the Supreme Court's fundamental assertion in the Heller case that gun ownership is an "individual right" – not a collective right associated with service in a militia – upheld by the Second Amendment.

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But while McCain cautioned that the decision was only the first step in ensuring the right, saying that it did not "mark the end of our struggle against those who seek to limit the rights of law-abiding citizens," Obama responded that the decision did not preclude "the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."

The candidates' responses to the Heller decision illustrate their divergent positions on the issue of gun control. McCain opposes most proposals to ban specific types of weapons and ammunition, and he believes that gun manufacturers should not be held liable for crimes committed with their products.

"I strongly support the Second Amendment," he told the Associated Press last year. "And I believe the Second Amendment ought to be preserved — which means no gun control.''

The proposals put forward by Obama, on the other hand, indicate a preference toward government restrictions intended to curb crime. During a debate on the eve of the Pennsylvania primary, Obama described the right to bear arms as parallel to the right to own private property. In both cases, he said, local governments can regulate how the right is used, as with zoning laws in the case of property.

Obama supports the rollback of the Tiahrt Amendment, a measure that prevents the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BAFTE) from releasing information from its database of firearm trace data to anyone other than law enforcement officials investigating a particular crime. Obama says that the amendment prevents local law enforcement from identifying the sources of illegal gun transfers. Supporters of Tiahrt, including the NRA, say that it protects the privacy of law-abiding gun owners. McCain also supports the repeal of the Tiahrt amendment, and gave a speech on the Senate floor in opposition to it.

Video: Obama on guns In most states, citizens are permitted to carry a concealed weapon outside of their home, provided that they have a state-issued permit to do so and that they do not enter prohibited areas like schools or federal buildings.

While running for Senate in 2004, Obama called for "national legislation" to prohibit citizens from carrying concealed weapons at all. In 2008, he affirmed that concealed carrying "creates a potential atmosphere where more innocent people could [get shot during] altercations."

Obama also supports the reinstatement of a 1994 ban on a variety of semi-automatic pistols and rifles characterized as "assault weapons." McCain voted against the ban, which expired in 2004, and continues to oppose it.

Obama's vice presidential pick, Sen. Joe Biden, has been a stalwart believer in gun control throughout his Senate career, offering steady support for the Brady Bill and championing legislation to renew the assault weapons ban. But on the stump, he has been careful to reassure voters that Obama will not enact a gun ban, and he has highlighted his own gun ownership. "He tries to fool with my Beretta," Biden said of Obama in Virginia recently, "he's got a problem."

One controversial area of gun control on which Obama and McCain agree concerns background checks conducted at gun shows. Both candidates believe that unlicensed sellers at private gun shows should be required to abide by the same instant background check rules that apply to licensed gun dealers.

In 2001, McCain, along with independent and longtime ally Sen. Joe Lieberman, introduced legislation in the U.S. Senate to close the so-called "gun show loophole." McCain’s bill was added as an amendment to an NRA-backed bill aimed at granting the gun industry immunity from certain lawsuits. The McCain amendment passed, and its passage led the NRA to withdraw support from its own bill.

This legislation, coupled with his championing of campaign finance reform, earned McCain the ire of the NRA, which once famously deemed him one of the country's "premier flag-carriers for the enemies of the Second Amendment." His last 'grade' on the NRA rating scale, calculated in 2004, was only a C+. But McCain has largely made amends with the organization, heavily courting their vote despite his continued disagreement on gun show background checks. A full seven months after clinching the Republican nomination, the powerful gun lobby formally endorsed him.

And McCain's sometimes tenuous ties to the gun lobby got a Teflon coating when he picked Alaska governor and avid hunter Sarah Palin as his vice presidential nominee. Palin's enthusiasm for fishing and game hunting makes her a favorite of sportsmen. Internet users even launched thousands of web searches after her selection to lay eyes on a doctored photo of her striking a beauty-queen pose and holding a rifle.

"Since 2004, Sen. McCain has voted with us 100 percent of the time," NRA spokesman Andrew Arulanandam said.

Arulanandam now describes McCain's record as consistently respectful of gun rights, while Obama's demonstrates "nothing but contempt toward American gun owners and hunters."

Specifically, Obama's votes on the issue as a state senator in Illinois, and later in the U.S. Senate, are the object of suspicion, as well as a fierce ad campaign produced by the organization.

How they have voted
In 2003, a man in a Chicago suburb used a handgun — illegal by village ordinance — to shoot an intruder in his kitchen who had broken in with the intention of stealing his car.

Hale Demar, 54, became a hero of gun rights activists when he was charged with violating the handgun ban after his confrontation with the burglar. Soon afterwards, state legislators drafted a bill that would exempt residents of gun-banning municipalities from facing charges if they used the prohibited weapon for self-defense. Obama voted against the measure.

The Demar vote is among several cited by Obama's opponents as evidence of hostility to the Second Amendment. In a recent ad from the NRA, for example, the roll call from the legislation is cited to back up the statement that the Illinois senator "opposes my right to own a handgun for self-defense."

Also while in the state legislature, Obama voted to limit handgun sales to one-per-month for individual buyers. (But he also supported a measure to loosen restrictions on gun ownership by former law enforcement officials.)

In the U.S. Senate, Obama's voting record reflects a similar ideology toward gun restrictions. In 2005, Obama was one of 31 senators who voted against Republican-sponsored legislation to "prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products."

McCain voted in favor of the measure, which was passed by Congress and was signed into law by President Bush.

Obama also voted in favor of an amendment to the liability legislation that sought to expand the definition of "armor-piercing ammunition" with the intent of banning a greater variety of bullets capable of penetrating police armor. The same types of ammunition can be used in deer hunting, prompting opponents of the measure to decry it as an assault on hunters' rights. McCain voted against the measure, which failed.

During his 26-year career in Washington, McCain has consistently opposed most efforts to place limits on gun ownership, including the Federal Assault Weapons Ban and the Brady Bill, a measure passed in 1993 that mandated a waiting period of up to five days for gun buyers. He has also voted in favor of legislation to toughen penalties on those who violate existing gun laws and illegally transfer firearms.

Unanswered questions
One of the most widely repeated quotes of the primary season was Obama's statement, captured on audiotape at a closed San Francisco fundraiser, that rural Americans "cling to guns" because they are "bitter" about their economic struggles.

The comments touched off a new volley of criticism against the senator, whose primary opponents derided him as out-of-touch and contemptuous of gun owners. The "bitter" controversy continues to haunt him in his attempts to win over some rural voters, and it has further fueled rumors that Obama hopes to enact a federal gun ban.

Last month, Obama insisted to a questioner at a Pennsylvania event that "I'm not going to take away your guns." Frustrated, he offered the logic that "even if I want to take them away, I don't have the votes in Congress."

His prediction is almost certainly correct. Congressional opposition to any kind of ban, especially in light of the Heller decision, would be vehement.

But Obama's record is not entirely clear on whether or not he believes that such a ban would be constitutional or beneficial.

Before the Heller ruling, Obama's campaign told a Chicago newspaper that the senator believed that the D.C. gun ban was constitutional. The campaign later disavowed the statement, characterizing it as an "inartful" communication of his views.

In 1996, when running for the state senate, Obama responded affirmatively on a questionnaire that asked "Do you support state legislation to … ban the manufacture, sale and possession of handguns?" Obama said late last year that he never laid eyes on that part of survey. The "yes" response was attributed to a staffer who accidentally mischaracterized Obama's positions when filling out the questionnaire on his behalf.

Although McCain has been consistent throughout his career in weighing in on gun rights, his passion for Second Amendment protections does not match that of many of his Republican colleagues. As such, some skeptics wonder how vigorously he will pursue the loosening of current gun control laws if elected. McCain says that he does not currently own a gun, and, during a campaign stop at a gun store on the same day as his address to the NRA's annual convention, he lingered near the fishing gear, never allowing photographers to capture his image in front of firearm merchandise.

Surprises for the next president
The Heller ruling fundamentally impacted the underpinnings of American gun regulations by defining firearm ownership as a fundamental and individual Constitutional right. As a result, many local ordinances that prohibit gun ownership — like those in Chicago sustained by Obama's votes in the state senate — are in the process of re-litigation. The next president will likely have a role in further defining the relationships between local governments, law enforcement, and federal authorities in light of the new law of the land.

Election A to Z

Experts believe that the next president will appoint as many as three new Supreme Court Justices, offering the potential for a significant and lasting impact on the nation's most controversial constitutional questions.

With the Heller decision resolved by a narrow 5-4 vote, activists on both sides of the gun issue will vehemently lobby the chief executive to choose new members of the court who will interpret the Second Amendment in their favored way.

Still, some gun control advocates express surprise and frustration that Second Amendment issues remain so contentious in the presidential race, considering the limited power of the executive branch to enact sweeping gun reforms without the support of the Congress. Noting the number of members of Congress who have "A" ratings from the NRA, a spokesman for the Brady Campaign to Prevent Gun Violence agrees with Obama's statement that he would be unable to enact any gun ban even if it was his intention to do so.

"There are legitimate solutions to some of these problems that don't require taking guns away," Hamm added. "The right president can take steps that would reduce the level of gun violence we have in this country."

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