Gun Rights Are The New Abortion Rights

The rights enshrined in our Constitution are not absolute, a fact that might come as a surprise to the average American.  After all, we reflexively think of things like freedom of speech, assembly and the press as given in our society.  In truth, law students spend weeks learning about all the ways police officers can avoid securing a warrant before arresting you (something proscribed in the Fourth Amendment) and, more colloquially, that freedom of speech does not protect you from the consequences of yelling fire in a crowded theater.  Occupy Wall Street can protest in Zuccotti Park, but case law says that camping is, in the main, not expressive conduct protected by the First Amendment.  In short, no right is absolute, and entire careers are spent articulating and dissecting the ways that otherwise immutable protections can be curtailed under certain circumstances.  

Of course, constitutional law is fertile ground for the intersection of public policy and popular sentiment.  If you have recently purchased contraception at your local drug store or had a prescription filled for birth control, you can thank the Supreme Court for granting you that right.  Similarly, your Miranda rights, your child’s access to integrated school classrooms and proportionate electoral representation are all outgrowths of Supreme Court jurisprudence.  Depending on your point of view, holdings like these can be viewed in the extreme, either as clear cases of judicial activism or decisions that uphold our rule of law. 

In recent years, no case, with the possible exception of the Court's highly questionable opinion in Bush v. Gore, has generated more passion, controversy or subsequent litigation than Roe v. Wade[1].  At its most basic level, Roe recognized that women have a qualified right to terminate their pregnancies absent state restriction and that this right was grounded in a person’s right to privacy under the 14^th Amendment to the Constitution. Although informally recognized as protecting a woman's right to abortion, the Roe opinion was actually more nuanced, holding only that women had an absolute right to an abortion without government intrusion in the first trimester of pregnancy, but that after that, two important triggers allowed for regulation of by the state: first, at the end of the first trimester, the Court found that a state’s interest in the health of the mother, becomes “compelling” and therefore may pass regulations “reasonably relate[d] to the preservation of maternal health[2].”  As examples, the Court cited things like the qualifications of people permitted to perform abortions, how those individuals are licensed, facilities where abortions can take place and how those facilities are licensed[3]; second, the Court held that a state’s important and legitimate interest in the life of the fetus becomes compelling at viability, at which time, the state could pass laws or regulations that restrict abortion entirely provided an exception “to preserve the life or health of the mother” was included[4].

Since the Roe ruling in 1973, some state legislatures, Congress and the Supreme Court itself have steadily chipped away at this decision, passing a host of legislation on everything from informed consent laws that require women be provided with medical information before undergoing an abortion and requiring minors to get parental consent before undergoing an abortion, to creating waiting periods before abortions can be performed[5] and restricting entirely the so-called "partial-birth" abortion[6].  The most recent restrictions are Targeted Restriction on Abortion Provider ("TRAP") laws that apply regulations typically limited to hospitals to abortion clinics as well, often mandating costly structural changes to the facilities even though clinics are already subject to safety regulations.  Sometimes these laws are struck down, sometimes they are not, and in this way, in the time between 1973 and 2011, access to abortion has become a hodgepodge of federal court rulings and state laws that make abortion either generally available or almost impossible, depending on the state you live in.  

Even though Roe was decided nearly four decades ago and anti-abortion advocates have steadily eroded and restricted this right[7], the passion of those who are focused on either maintaining Roe’s “core” viability (i.e., a woman’s right to an abortion during pre-fetal viability term of pregnancy absent an undue burden) or removing that last vestige of protection entirely, plays out at a level and intensity that few social issues of our day reach; however, one of those issues is the question of a person’s right to possess firearms and whether (or how) that right can be restricted. As will be discussed below, even though the Supreme Court has affirmed that there is an individual right to bear arms found within the Second Amendment, that right is itself modest and lower courts have already upheld a variety of restrictions and regulations that mirror the legal debate that has narrowed Roe’s impact over the years.

For many years, “Second Amendment” rights, that is, the question of whether the Constitution granted Americans a basic right to bear arms, was in question.  The Second Amendment itself is awkwardly written and in that way, was open to interpretation depending on which of the two clauses in the Amendment one chose to focus on[8].  While this debate raged for decades, it was put to rest, at least in part, by the Supreme Court in District of Columbia v. Heller[9].  In that case, the Supreme Court found that the Second Amendment protects “an individual right to keep and bear arms[10].” Case closed, right?  Here is where the gun rights debate dovetails with the abortion rights battle.  Like Roe, Heller merely established that a basic right existed, it did say that right was above restriction, something that typically gets lost in superficial discussion of any Constitutional right, but here, more than other areas, it is important to look at what Heller and cases that have interpreted it, allow, disallow and leave subject to judicial scrutiny as it relates to the rights of an American citizen to possess a firearm.

Heller involved a challenge to a law passed in the District of Columbia that prohibited the possession of all firearms in D.C. and required that any lawfully owned firearms be rendered inoperable[11].  The Court struck down the law as unconstitutionally infringing on the Second Amendment, which, the Court found, not only codified a pre-existing (i.e., pre-passage of the Constitution) individual right to keep and bear arms, but that this right tied to the need not only to maintain a militia but “also for self-defense and hunting[12].” Indeed, the Court noted that although “self-defense had little to do with the right’s codification[,] it was the central component of the right itself[13].” 

Although this portion of the Court’s holding is what the headlines reported, of equal interest is what the Court held as outside the Second Amendment and what could be regulated within it.  For example, the Second Amendment, the Court found, does not cover the possession of “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns[14]” or the carrying of “dangerous and unusual weapons[15].” Further, the Court found that laws prohibiting carrying concealed weapons, possession of firearms by the mentally ill and felons and the carrying of firearms in “sensitive places” such as schools and government buildings, all fell outside the ambit of Second Amendment protection[16].  In other words, there are entire segments of the population who do not possess a right to bear arms (i.e., the mentally ill and felons), the right to bear arms is not implicated when a state passes a concealed weapon law and states can prohibit the possession of firearms in “sensitive places” without fear of having that law challenged on Second Amendment grounds. 

So much for prying a long rifle out of Charlton Heston’s cold dead hands.  Anyway, even when your gun possession (or ownership) is protected by the Second Amendment, your right is not absolute.  Then, a Court must look to a “means-end test[17]” to determine whether the law or regulation improperly infringes on that right.  In short, even the Supreme Court, who called gun ownership “among those fundamental rights necessary to our system of ordered liberty[18]” and, if you only read the headlines, would think upheld an unfettered right to own guns in America, said that is not the case.  In fact, as will be discussed more fully below, the level of scrutiny applied by courts in subsequent jurisprudence has upheld many of the regulations at issue before them.

Although Heller was decided less than four years ago, it has already spawned an impressive amount of litigation in the lower federal courts.  In this short time, the federal courts have solidified a basic two-part examination of any challenge to a law or regulation a litigant claims infringes on their Second Amendment rights.  Simply put, courts now ask first whether the law implicates the Second Amendment.  If it does not, the inquiry ends.  If it does, courts examine the “nature of the conduct being regulated and the degree to which the challenged law burdens that right[19].” 

As noted previously, wide swaths of gun control policy have already been found to be outside the ambit of Second Amendment jurisprudence.  These areas include prohibitions on gun ownership by felons and the mentally ill[20], the registration of handguns[21], “dangerous and unusual weapons” (i.e., short barreled shotguns[22], machine guns[23]) and the possession of firearms in “sensitive areas” (i.e., schools and government buildings).  Moreover, this is an area subject to extension because the Supreme Court itself noted that examples they cited were not exhaustive but rather, illustrative, of “longstanding” regulations that are presumptively valid[24]. 

This played out most recently in a new appeal brought by Dick Heller, the named litigant in the Supreme Court decision affirming an individual right to bear arms under the Second Amendment. Heller’s new lawsuit involves a challenge to legislation passed in D.C. in the wake of the Supreme Court’s ruling.  The D.C. Council’s new law requires gun owners to, among other things, register their firearms, provide certain personal information (e.g., name, address, and occupation), submit the pistol for ballistics identification, apply for the registration permit in person and, when requested, with the weapon present, register no more than 1 pistol in a 30 day period and renew the registration every 3 years[25].  In looking at the registration requirements, the court confirmed that basic registration requirements, including basic personal information, were not only long-standing[26], but were de minimus, “similar to other common registration or licensing schemes such as those for voting or driving a car[27] …” In this way, the D.C. Circuit Court of Appeals recognized another aspect of regulation that falls outside the Second Amendment – gun registration.  As other courts review laws that are challenged under the Second Amendment, it is entirely possible that similar examinations of the historical record will uncover longstanding regulations that will add to this list of actions that do not impact the individual right to bear arms[28].

On the other hand, and where gun rights will become the new abortion rights, is in this second category of laws, those that are not longstanding, but newer in vintage and do, in some way burden the rights of gun owners.  Here too, the courts are already building upon the foundation that the Supreme Court constructed in Heller.  For example, a federal law making it a crime to possess a firearm with an “obliterated” serial number was challenged in the Third Circuit[29].  In that case, the defendant, who was in possession of such a firearm, challenged the federal statute as an infringement on his Second Amendment right to bear arms.  The Court rejected this argument, first, questioning whether the Second Amendment right itself was implicated because the Court did not think a handgun with an obliterated serial number was covered as the type of weapon contemplated under the Supreme Court’s ruling in Heller but, in an abundance of caution assumed, arguendo, that the Second Amendment right was infringed and determined that the law in question did not improperly burden this right[30]. 

In reaching the constitutional question, the Court applied “intermediate scrutiny,” that is, that the governmental interest advanced must be “significant,” “substantial,” or “important” and the means of achieving that interest be “reasonable, not perfect[31]” as opposed to “strict scrutiny,” a level of analysis that requires the governmental interest to be “compelling” and the means of achieving it “narrowly tailored” to meet that objective[32].  The Court found that the government’s proffered interest in crime control and public safety were met by the legislation because (1) serial numbers help trace firearms for law enforcement purposes, (2) serial numbers assist law enforcement in tracing ownership of a recovered weapon and (3) people who own firearms with defaced serial numbers “almost always fall only on those intending to engage in illicit behavior.” When taken together, the Court found, the governmental interests were important and the means of achieving them more than reasonable such that the law did not unduly burden the individual’s Second Amendment rights[33].  Finally, the Court noted that the law left a person “free to possess any otherwise lawful firearm,” thereby reducing its infringement further[34].

The same application of intermediate scrutiny led the D.C. Circuit to find that the D.C. Council’s prohibition on semi-automatic assault weapons like the AR-15 and large capacity (more than 10 bullets) magazines also passed constitutional muster. Although D.C. attempted to argue that AR-15s were not even covered by the Second Amendment because the weapon is “dangerous and unusual,” regrettably, its ubiquity[35] rendered this argument moot.  That fact notwithstanding, the Court upheld the D.C. ban on assault weapons (including semi-automatic rifles) like the AR-15 and large capacity magazines under intermediate scrutiny.  The Court found compelling expert testimony provided to the D.C. Council who characterized semi-automatic rifles as creating “mass produced mayhem,” that the AR-15 was essentially the civilian version of the military’s M-16 assault rifle, and that assault weapons disproportionately account for mass murders and murders of police officers.  Prohibiting the possession of these weapons, the Court found, was an appropriate means to achieve the government’s objective of crime control and reducing gun violence[36].  As to large capacity magazines, the Court deferred to studies showing that the use of large capacity weapons result in more crimes where people are injured by gunfire, more shots fired and more wounds per victim than weapons without such magazines and that even in self-defense situations, a large magazine encourages a person to fire the full magazine, increasing the chances of innocent bystanders being hit or put in danger.  Here too, the Court found these reasons compelling and appropriate to help D.C. achieve its stated objective of crime control and public safety[37]. 

This is a key point because the strict scrutiny standard is often fatal and, based on the limited jurisprudence that has been create in the wake of Heller, is a direction federal Courts of Appeal are steering away from, not towards.  Indeed, it appears that strict scrutiny will only be applied where laws directly impact the limited gun ownership right upheld in Heller – “the right to possess firearms for defense of hearth and home” – the so-called “core” right recognized in that case[38]. Put another way, “a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify[39].”(emphasis added).

Of course, each federal circuit has different judicial make-up, but it is telling that in just the few short years since the Heller ruling, a diverse cross-section of courts have upheld a variety of gun control laws[40] or remanded for additional fact finding[41] without opining on the legitimacy of the law in question. As time goes on, gun rights, like abortion rights, will become more clearly (and narrowly) defined; instead of questions over waiting periods and parental consent or clinic regulations and doctor’s scripts, the challenges will be about things like ballistics fingerprinting, different types of ammunition, concealed weapons permits and other laws either already on the books or to be enacted in the future. If existing case law is any guide, courts will give great weight to expert testimony and crime statistics in showing the dangers that certain types of weapons (or ammunition) possess, permitting prohibitions against their possession so long as other firearms are available for purchase.  Further, reasonable regulations that bar individuals convicted of certain crimes have already been upheld as have registration requirements.  “Novel” forms of gun ownership regulation, that is, regulation that is not historical, but of more recent vintage, will be scrutinized closely, requiring all levels of government to provide a strong and defensible record showing why they are needed.  In the end, while possession of weapons in the home for self-defense and for hunting will be broadly protected, I expect that when all is said and done, the right to bear arms, which is portrayed (or thought to be) wide ranging, will turn out to be far more limited than its defenders would like it to be.   

---

[1]   410 U.S. 113 (1973).

[2]   Id. at 163.

[3]   Ibid.

[4]   Id. at 164.

[5]   See e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[6]   Gonzales v. Carhart, 550 U.S. 124 (2007).

[7]    Four justices of the Supreme Court supported overturning Roe in the Casey decision; however, subsequent opinions of the court in this area indicate that the hollowing of Roe notwithstanding, the Court recognizes that overruling the case entirely may be a bridge too far, regardless of the justices’ views of its constitutional grounding.

[8]   The Second Amendment reads in full: “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.” U.S. Const. Amend. II.

[9]   554 U.S. 570 (2008).

[10]   Id. at 595.

[11]   See, U.S. v. Marzarrella, 614 F. 3d 85, 89 (3^rd Cir. 2010) citing Heller. 

[12]   Heller, 554 U.S. at 592.

[13]   Heller v. U.S., 2011 U.S. App. LEXIS 20130, *13 (D.C. Cir. 2011).

[14]   Heller, 554 U.S. at 625, citing U.S. v. Miller, 307 U.S. 174 (1939).

[15]   Id. at 625.

[16]   Id. at 626-27.  See also, Marzzarella, 614 F. 3d at 91( … these longstanding limitations are exceptions to the right to bear arms.”)

[17]   There are three basic levels of scrutiny applied by courts – strict, intermediate and rational basis.  Of the three, only the first two are implicated in Second Amendment jurisprudence. Marzzarella, supra, 614 F. 3d at 89.

[18]   McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010).

[19]   Heller, 2011 U.S. App. LEXIS 20130, *30 citing U.S. v. Chester, 628 F. 3d 673, 682 (4^th Cir. 2010).

[20]   Heller, 530 U.S. at 626-27.

[21]   Heller, 2011 U.S. Lexis 20130 at *23.

[22]   See, fn. 14 supra.

[23]   U.S. v. Fincher, 538 F. 3d 868, 873-74 (8^th Cir. 2008), cert. denied, 129 S. Ct. 1369 (2009).

[24]   Heller, 530 U.S. at 626-27, see also Marzarrella, 614 F. 3d at 91.

[25]   Heller, 2011 U.S. App. LEXIS 20130 at *6.

[26]   The Court found that the earliest registration requirements dated to the early 1900s.  See, Heller, 2011 U.S. Lexis 20130 at *20-21.

[27]   Id. at *22.

[28]   It is worth noting that other restrictions, such as the ballistics requirement, training course, registration renewal and others were remanded for further fact-finding to the District Court because the Appeals Court could not, on the record before it, make a ruling on whether those restrictions passed intermediate scrutiny.  However, the sheer fact that the Court determined intermediate scrutiny would be the appropriate standard is itself important because it found that these “novel” regulations do not prevent “possession in [the] home or elsewhere, whether for self-defense or hunting, or any other lawful purpose.” Id. at *33.  See also, Chester, supra, 628 F. 3d at 680 (4^th Cir. 2010)(remanding for additional fact-finding as to whether a federal law prohibiting a person with a domestic violence conviction from possessing a firearm infringes on Second Amendment rights).

[29]   Marzarrella, supra.  See also, 18 U.S.C. 922(k).

[30]   Marzarrella, 614 F. 3d at 94-97.

[31]   Id. at *98, citing Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001).

[32]   Id. at *99.  It is worth noting that the Court, found, arguendo, that the law passed strict scrutiny as well.  See, Marzarrella, 614 F. 3d at 100-101.

[33]   Ibid.

[34]   Id. at *97.

[35]   The Court noted that 1.6 million AR-15s have been manufactured since 1986 and account for more than 5 percent of all firearm sales in America. Heller, 2011 U.S. App. LEXIS 20130 at *44.

[36]   Id. at *49-50.

[37]   Id. at *51.

[38]   Id. at 88.  See also, Heller 554 U.S. at 628,

[39]   Heller, 2011 U.S. App. LEXIS 20130 at *31 (internal citation omitted).

[40]   See, e.g., U.S. v. Reese, 627 F. 3d 792, 800-01 (10^th Cir. 2010)(upholding federal law prohibiting gun possession by individual subject to a domestic protection order), U.S. v. Masciandaro, 638 F. 3d 458, 471 (4^th Cir. 2011)(upholding Department of Interior regulation prohibiting the carrying or possession of a loaded firearm in a vehicle within federal parks), U.S. v. Smith, 742 F. Supp. 2d 853, 864-65 (S.D.W.V. 2011)(upholding federal law prohibiting gun possession by person convicted of misdemeanor charge of domestic violence), U.S. v. Kirkpatrick, 2011 U.S. Dist. LEXIS 82801, *10-11 (W.D.N.C. 2011)(upholding federal law prohibiting gun possession by individual convicted of crime punishable by more than 1 year in prison), U.S. v. Gonzales, 2011 U.S. Dist. LEXIS 127121, *21-27 (D. Utah 2011)(upholding ban on .22 caliber short-barreled rifle).

[41]    Certain remands are rightly viewed as sympathetic to the government’s position and inclined to affirm the law in question but in need of a more thorough record and explanation. See e.g., Chester, supra, Nordyke v. King, 644 F. 3d 776, 786 (9^th Cir. 2011), (county regulation prohibiting gun possession on county property).

The Whole Hope-y, Change-y Thing Is Not Working Out For Me, You Betcha

Having already written about "The Death of Hope" (http://scarylawyerguy.blogspot.com/2011/10/death-of-hope-pt-2.html), I was reluctant to revisit the question of whether "liberal discontent" with President Obama was warranted or not; however, reporting in places like New York Magazine and Up With Chris Hayes has re-ignited this debate, which goes something like this: liberals and progressives who complain that President Obama has not done enough to advance Democratic causes are crying sour grapes.  Obama, his defenders argue, inherited a tough economy, an intransigent opposition and even with those challenges passed, among other things, landmark health care legislation, a financial reform law, improved access to student loans and credit card reform legislation.  Indeed, these pundits point out that the 111th Congress, notwithstanding lockstep Republican opposition, was the most productive one since LBJ's Great Society.  Moreover, supporters point out that the President still enjoys wide support among Democrats, which proves that Democrats are not dissatisfied with his leadership.

I am not part of the "professional left" as the President's first Press Secretary called those in the mainstream media who carp about Obama's failure to pass truly progressive legislation, but I am most certainly disaffected by his lack of leadership, his failure to leverage the enormous legislative majorities our party held for the first two years of his Presidency and squandering of the good will and desire that Americans of all stripes had for him when he put his hand on the Bible January 20, 2009.

So where did things run aground?  How did a candidate who received more votes than any other in American history, drew crowds to his events unseen in modern times and and whose 365 electoral votes included victories in states that had not gone Democratic in a generation (Indiana and Virginia) turn into an object of derision by those who most passionately supported him?  

On its most general level, the defense of the President boils down to Mario Cuomo's oft-cited observation that you campaign in poetry and govern in prose and that might be true so far as it goes, but the "poetry" that Obama employed as a candidate was particularly heady.  Consider this line from the speech the President gave in early June 2008 in St. Paul the night he clinched the Democratic nomination:

I face [this challenge] with limitless faith in the capacity of the American people, because if we are willing to work for it and fight for it and believe in it then I am absolutely certain that generations from now we will be able to look back and tell our children that this was the moment when we began to provide care for the sick and good jobs for the jobless. This was the moment when the rise of the oceans began to slow and our planet began to heal. This was the moment when we ended a war and secured our nation and restored our image as the last, best hope on Earth. This was the moment — this was the time — when we came together to remake this great nation so that it may always reflect our very best selves and our highest ideals."

Oceans slow? Earth heals? Care for the sick and jobs for the jobless?  That's pretty ambitious stuff.  When you opt to use the Bible Abraham Lincoln was sworn in with, you are only ratcheting up the imagery and iconography that much more.  

Having offered this intoxicating brew of "hope and change," to suggest that those who believed that you would bring those things are not entitled to feel disappointment that you did not suggests that you did not buy your own bullshit in the first place.  The idea that universal access to health care would be offered or that Guantanamo Bay would be closed are not things that Berkeley hippies invented, they were things that Obama promised and did not achieve.  In the midst of the financial crisis, Obama was cool and level headed, he spoke of holding bankers accountable for their misdeeds and then promoted people to positions within his Administration who had helped create the mess in the first place.  When it came to aiding struggling homeowners, his leadership has been entirely absent and his fecklessness in the face of an ongoing housing disaster, particularly when so much was done to aid "too big to fail" banks is damning.  As for Bush-era conduct that included condoning torture, destroying interrogation tapes of terrorism suspects and other potential criminality, he essentially punted, releasing some memos but sweeping the rest under the rug as unhelpful to the public discourse, a position doubly damning - first, by not honoring the rule of law, regardless of its outcome and second, by encouraging future Administrations to engage in similar conduct knowing precedent has been set that such actions can be passed off as "policy differences" or the discrepancies of how attorneys of different political stripes view the law.  That Obama was once a constitutional law professor would be ironic if it were not so sad.  

But, defenders say, what did you want Obama to do?  He had a stone wall of Republican opposition to go against and even though he commanded a large majority in the House, by the time Democrats got around to seating their 60th senator in July 2009 (the Minnesota Senate race dragged on through a recount and challenge until Al Franken was finally seated in early July) Republican opposition had hardened and that 60-40 advantage ended just six months later when Scott Brown was elected to the Senate after the passing of Edward Kennedy.  For one thing, he could have used the bully pulpit of the Presidency to cow Republicans who were already blocking his initiatives and appointments.  Instead, he deferred to shady "gangs" of legislators who teed up a ritual that became all too familiar - the "Lucy" maneuver where Republicans would feign cooperation only to pull out of talks when the rubber met the road.  In this way, they were Lucy, the football was compromise and Obama was Charlie Brown, always thinking *this* is the time she won't pull the ball away at the last minute.  

For another, he could have taken a page from the legislative achievements of prior Democratic Presidents as examples to follow. FDR, LBJ and Clinton all swung for the fences with signature achievements that had long-term impacts.  FDR passed a flurry of social programs that provided jobs in a time of need and launched Social Security.  Johnson passed civil rights legislation and Medicare and Clinton got through a tax increase on the wealthy that while he took an enormous political hit on, helped lay the foundation for enormous prosperity, his re-election and 23 million jobs during his 8 years in office.  Obama should have understood that whatever he was going to propose was going to be opposed, but instead of going all out for maximalist goals, he constantly settled for half loaves that were not up to the challenge of the day.  

That Republicans would oppose the President's policies should not have come as a surprise to Obama or his advisers.  Indeed, unlike Bill Clinton, who came to Washington with a group of Arkansan neophytes and Washington hands who had last seen the inside of the Oval Office when the electric typewriter was the word processing machine of choice, Obama had not only been in Washington himself for the prior four years, but had as advisers people who cut their teeth fighting the policy battles of the 1990s against a prior Republican Congress.  Moreover, Obama exacerbated the problem through sloppy vetting of his nominees, which resulted in embarrassing disclosures about unpaid taxes, sidelining former Senator Tom Daschle and making some question why Obama stuck with Tim Geithner when he not only had unpaid taxes but sat at the head of the New York Fed while banks were running amok.

Rahm Emanuel might have preferred bragging about putting "points on the board" but the reality of  key pieces of legislation that did pass the 111th Congress was that they did not come close to fulfilling the promises the President made while campaigning. The argument that the laws Congress passed were the best that could be expected under the circumstances always read to me as an easy pass for a clear failure of leadership.  What Republicans quickly realized is that Obama could be bullied and would fold his position easily.  The health care law he ultimately signed is a perfect example.  Its centerpiece, the individual mandate, was originally a conservative think tank idea that was incorporated into a plan passed in Massachusetts when Mitt Romney was governor.  Not only did Obama hand the insurance companies he had railed against on the campaign trail more than 30 million new customers, he did not even reach the basic standard of "universal" coverage that has long been a cardinal virtue of the Democratic party. According to the CBO, the Affordable Care Act will still leave about 20 million people without coverage.  

Good ideas (or, at a minimum, negotiating positions) that would have lowered the Medicare eligibility age, offered the vaunted "public option" (something candidate Obama promised), expanded the SCHIP program, permitted the re-importation of drugs from abroad (another campaign promise Obama jettisoned) were never seriously supported by Obama, who, trying to do the opposite of what Bill and Hillary Clinton did in 1993, that is, standing at a distance to the legislative "sausage making" instead of presenting a fully-baked plan to Congress, went too far in the opposite direction, serving more as mediator and prodder-in-chief even as his loyal foot soldiers were taking tough votes only to have him cut them off at the knees.  Moreover, Obama never sold his vision for the importance of universal coverage, how it would benefit everyone (lowering costs across the board, improving medical outcomes, moral right as a society to provide health coverage to all) and instead allowed unwieldy legislation to advance that was combed through and picked apart by the right (death panels, health rationing, etc.).  

While there is no question the final bill included good policy, including prohibiting denial of coverage based on pre-existing conditions and allowing kids to stay on their parents' plans until age 26, much of that was originally proposed as the so-called "Patient's Bill of Rights" when Bill Clinton was President.  Given one opportunity in a generation to swing for the fences on this issue, Obama at best, tapped out a single.  Major portions of the legislation do not even take effect until 2014, and even if the Supreme Court does not strike down the individual mandate, if Obama loses re-election, the law is likely to be repealed or scaled back dramatically, making all the effort put into passing it chimerical.  

This was also true in financial regulation and Obama's general attitude toward big banks and Wall Street.  While much of the Tea Party activism that emerged in 2009 is rightly understood as recycled Republican activism wrapped in new clothing, there was (and is) an ambient discontent among ordinary Americans about unfairness as it relates to the aftermath of the financial collapse in 2008.  While the economy limps along and everything from unemployment numbers to poverty in our country are at distressing levels, more than three years after the Lehman crash that precipitated an economic meltdown that helped vault Obama to the Presidency, his actions to support working Americans have been modest at best.  Instead of tackling the issue of home foreclosures, modifying bankruptcy law, granting greater authority for judges to modify loans or deeply investing in both "shovel ready" infrastructure projects and long-term investments in education, research and development and other areas that will be critical to our future, like his immediate predecessor, Obama went for the expedient over the practical, handing out tax cuts to honor a campaign pledge instead of thinking strategically about how to re-structure the economy. 

Tellingly, the American Recovery and Reinvestment Act (the so-called "stimulus bill") contained an enormous amount of tax cutting (something Republicans invariably fail to note even though it should be catnip to them) but in doing so, diverted precious resources from works projects and infrastructure spending that had a far better chance to stabilize the employment rate, which would, in turn, have helped replenish the tax base. While the stimulus did provide money in those areas (and more to states and localities to stave off layoffs), here, Obama should have taken a lesson from Clinton, who went back on a pledge to provide middle-class tax relief after he was elected in favor of deficit reduction.  Instead of clinging to a campaign promise, Obama could have re-calibrated where stimulus would have done the most good.  Instead, he went for the cotton candy of stimulus (tax cuts) and, in the balance, passed legislation that was too small for the problem it was meant to address - the worst of all possible policy outcomes.  

Even so, the President's failure to defend the ARRA, which non-partisan analysts have suggested saved or created millions of jobs (http://scarylawyerguy.blogspot.com/2011/11/i-found-jobs-mr-speaker.html) has allowed his opponents to mischaracterize it and in the process, made the passage of needed additional stimulus spending almost impossible.  Part of this may have been naiveté on the President's part, he seems to assume that the media will act as neutral arbiters of political discourse when their role in modern day politics is to inflame it.  Rare is the journalist who challenges the talking points put forward by either party on cable news or pushes aggressively against mistruths spoken in the name of political gain.  

When Obama was faced with the choice between allowing all of the so-called Bush tax cuts to expire, as they were scheduled to do based on legislation drafted by the very Republicans who were now pushing for their extension, or extending them in full, Obama caved.  In the aftermath of this defeat, Obama argued that he could not let taxes rise on the 98 percent he wanted to protect from increases because Republicans would not allow taxes to rise on the wealthiest 2 percent of households.  Again, that might be true so far as it goes, but he never considered other alternatives.  For example, he could have called the Republicans' bluff and, if the tax cuts did in fact expire, would have allowed him to come forward with a new plan that provided more targeted tax cuts while also reminding Americans that a new debate was necessitated because Republicans would not allow taxes to rise on people who had disproportionately benefited from tax policy not just in the past decade, but the last 30 years.  Had Republicans caved, Obama would have scored a strong policy win while also showing that he could not be pushed around.

Unfortunately, the tax cut showdown foreshadowed the debt ceiling debate that took place a few months later.  Here again, Republicans were able to extract enormous concessions from the President in exchange for "agreeing" to raise the debt ceiling, something that had been done routinely dozens of times in the past and without putting the full faith and credit of the United States in jeopardy (the country's credit rating was downgraded by one ratings agency after the imbroglio).  That the American people ended up taking a dim view of both parties was of no matter to Republicans because dragging Obama's ratings down increases the likelihood that he will not get re-elected and even if he is, Congressional districts are now drawn so narrowly that Republicans will gladly risk running in a poisoned political atmosphere without fear of losing their House majority and at worst, retaining their ability to filibuster anything in the Senate.  

Of course, Republicans also get bad behavior rewarded on petty and small things from blowing Obama's swearing-in by Chief Justice Roberts to having a sitting member of Congress call the President a liar during a Joint Session of Congress.  It's little wonder that Speaker Boehner not only did not take a call from the President when the debt ceiling negotiation they undertook fell apart, but then bragged about the snub.  Obama's diminished statute is connected directly to his failure to assert himself as President, not just to confirm his "relevancy" as Bill Clinton did after the Republicans took over Congress in 1994, but affirmatively through the articulation of policies that go beyond tax cuts and reach to the core of what is needed in America today.  

While these slights and squabbles would be mitigated if Obama was achieving the change he promised to bring, what has happened instead is that economic policy has become perverted by the very policies Obama championed.  For example, because Obama would not push for things like direct employment (public works) or additional infrastructure spending, he went for more tax cut stimulus, lowering the payroll tax deduction from 6.2 percent to 4.2 percent.  While this might have provided some benefit in the short run, it did two things that in the long run are likely to be quite damaging: first, it drained billions of dollars from the Social Security Trust Fund by reducing its collections by 20 percent and accelerating the Trust Fund's inability to pay out fully to recipients; second, once a tax is cut, raising it to its pre-cut level is next to impossible, thereby exacerbating the short-term problem over the long run.  Not only that, but Obama is now proposing to cut the payroll tax again, by another percentage point for workers, and, for the first time, for businesses as well.  It would be a cruel irony if a Democratic president expedited a crisis in the very program that was the cornerstone of the New Deal, but sadly, that is where we are headed.  

Moreover, he has become doctrinaire in refusing to allow tax cuts to expire for households earning less than $250,000.  While that might be convenient policy, the reality is that very few people in America (2 percent of married couples) make that much money and in foreclosing raising taxes at that level, he is not only raising our long-term debt projection, but restricting our tax base.  Again, had Obama simply allowed all the Bush tax cuts to expire, he could have reframed a tax policy proposal that looked at modifying rates, or re-orienting the line below which he was unwilling to raise taxes in a thoughtful way instead of relying on the framework left over by President Bush.  While he might have taken a short-term hit politically, he could have re-grouped around sound tax policy and then campaigned for it in a thoughtful way, something that is now impossible because all that Congress (and the public) will focus on is extending (again at the end of 2012) the Bush-era tax cuts.  

Finally, he has put what were once sacred cows of Democratic orthodoxy "on the table" for future negotiation, including raising the Medicare age, modifying the way in which Social Security benefits are calculated and instituting pay freezes for federal workers (which has already occurred).  Conversely, the purported compromises Republicans were willing to make on taxes did not go nearly as deep and indeed, were couched in the vague language of "expanding the tax base" by lowering marginal rates at the expense of jettisoning certain exemptions for high-income earners.  Moreover, alternative budget ideas, like one advanced by the House Progressive Caucus (http://cpc.grijalva.house.gov/index.cfm?sectionid=70) are not given consideration even though that particular proposal achieves greater long-term deficit reduction than either the President's plan or the one passed by House Republicans and championed by Congressman Paul Ryan.  

The consequence of these policy and political missteps is that President Obama is probably a slight underdog for re-election.  The hope and change he promised has long ago been kicked to the curb in the name of attempting to win small victories at the margins like (yet more) tax incentives, this time for businesses to hire veterans and a possible extension of unemployment benefits.  Meanwhile, slow but steady private sector growth is being tempered by a rash of layoffs at the state and local level and Obama has no credibility or cache to drive his "American Jobs Act" through a Congress that long ago recognized that it will pay no political price for giving Obama the metaphorical finger.  

Interestingly, it was during the debt ceiling debate that Obama,in a moment of frustration, accidentally hit on what I wish he would not only remember, but use to motivate his Presidency.  During a press conference to announce that his talks with Boehner had collapsed, he made the following observation:

The difference was that we didn’t put all the burden on the people who are least able to protect themselves, who don’t have lobbyists in this town, who don’t have lawyers working on the tax code for them -- working stiffs out there, ordinary folks who are struggling every day. And they know they’re getting a raw deal, and they’re mad at everybody about it. They’re mad at Democrats and they’re mad at Republicans, because they know somehow, no matter how hard they work, they don’t seem to be able to keep up. And what they’re looking for is somebody who’s willing to look out for them. That’s all they’re looking for.

And for us not to be keeping those folks in mind every single day when we’re up here, for us to be more worried about what some funder says, or some talk radio show host says, or what some columnist says, or what pledge we signed back when we were trying to run, or worrying about having a primary fight -- for us to be thinking in those terms instead of thinking about those folks is inexcusable.

I remember watching that press conference and thinking where has THIS guy been?  What Obama framed perfectly in those remarks is exactly what he should have been fighting for, politically, rhetorically and publicly, from the day he was sworn in.  Fortunately, the election is still nearly a year away, but in order to reignite the passion that fueled his initial run for President, he will need to articulate a clear and compelling message of what he is going to do to improve the lives of the people who worked so tirelessly on his behalf.  Otherwise, he will be remembered as a failed politician who did little more than give inspiring speeches while allowing his political enemies to transform him from a beacon of hope into a second Jimmy Carter.