The Supreme Court recently agreed to hear District of Columbia v. Heller, a Second Amendment case on the hotly contested right to bear arms guarantee. It is the first such test of the Second Amendment’s scope since 1939.
Republican presidential candidate Rudy Giuliani has called the case, which would overturn the capital’s total handgun ban, a “very, very strong description of how important personal liberties are in this country and how we have to respect them.”
This from the man who as mayor of New York had a less-than-stellar record on the right to bear arms.
His campaign Web site calls Rudy “a strong supporter of the Second Amendment. When he was mayor of a city suffering an average of almost 2,000 murders a year, he protected people by getting illegal handguns out of the hands of criminals.”
But a UCLA law professor, Eugene Volokh, wonders if by “criminals” Giuliani means “people with a pre-existing criminal record . . . [or] just people who are criminals because we've banned their guns.”
For conservatives and liberals alike, a key campaign question for Giuliani is this: Is Rudy Giuliani committed to an individual right to gun ownership? If he is, it would represent a change from his previous, long-held position.
As the National Rifle Association reports, Giuliani advocated “passage of the Clinton semi-auto ban and . . . federal gun-owner licensing. He also championed lawsuits to hold legal firearms manufacturers responsible for criminals who use firearms to commit violent crime.”
However, Giuliani was also one of the GOP presidential candidates to address the NRA’s September symposium on the Second Amendment, “A Celebration of American Values.” Given his previous support of gun bans, he did surprisingly well at this appearance, stressing his performance on 9/11 but also his effectiveness in fighting crime in New York.
Neither of those issues, of course, has anything to do with individual gun ownership, although he did suggest that 9/11 has had an impact on his thinking and indicated that he has studied D.C. v. Heller and now believes that some of the bans on gun ownership he previously advocated have been taken too far in subsequent interpretations by courts and law enforcement.
He was not asked why 9/11 should have changed his view about guns while World War II, for instance, did not.
At the NRA meeting, Giuliani stressed his newfound commitment to judicial restraint. Just as he has tried to assure abortion foes that, despite his own history of pro-choice advocacy, his judicial appointments won’t make things worse and may make them better from a pro-life perspective (see “Giuliani’s Abortion Hobgoblin”). He tried to convince the attendees at the gun gala that his appointments will be likely to support the Second Amendment.
Perhaps. But neither Giuliani nor any other candidate can say at this point who will be the next member of the Supreme Court. Whoever is appointed will likely succeed Justice John Paul Stevens, who will turn 89 shortly after the next president is inaugurated.
The president proposes, but the Senate disposes; which is to say that were a President Giuliani to nominate a justice who advocates the individual right to carry a concealed weapon, it is far from certain the Senate’s confirmation of the judge would follow.
Gun Control? Yes . . . and No
“I believe,” he said in his speech, “that public safety is the most fundamental right that people have, and I believe that that is one of the social values that we have, which is reducing crime and having a safe society. Because, after all, if you don't have a reasonable degree of safety, you can't exercise your other rights.”
But at no point in his speech did he advocate the individual right to bear arms, and if he didn’t do so in a speech before the NRA, it’s unlikely he’ll do so under any circumstances.
His speech did contain one applause line: “We need to have zero tolerance for crime committed with a gun. After all, it's people that commit crimes, not guns.” No doubt there would have been whoops and hollers had he followed that with an assurance that as president he’d do all in his power to actually make gun ownership easy for law-abiding citizens.
It was at this moment in his speech that his cell phone rang and a bizarre conversation with is wife, Judith, ensued. Clearly unnerved by the stunned silence in the audience that accompanied his chat with Judy, Rudy stammered: “Well, this is — I mean, this is one of the great blessings of the modern age, being always available. Or maybe it isn't. I'm not sure.”
He then came as close as he likely ever will to taking a position that might lead the NRA to actually endorse his candidacy: “It is quite clear that when the Framers of our Constitution gave people the right to have and to bear arms, they meant exactly the same thing as they meant when they gave people the right of free speech, the right of freedom of religion, the right to be secure against unreasonable searches and seizures.”
He then added, “When they said the rights not otherwise committed to the federal government and the states are reserved for the people, it's the people. It means a personal right, an individual right.”
His response to the final question he received at the end of his remarks is instructive: “What's my position on waiting periods? My position is the law should be less the way it is now, given the level of crime in this country. I think the emphasis and the energy should be spent on enforcing the laws that presently exist, and if changes in the law are necessary later, that'll respond to other social conditions.”
Oral responses — as opposed to scripted ones — are often a bit incoherent, but this one is especially hard to decipher. But in this and the rest of his NRA remarks and on the campaign trail elsewhere, Mr. Giuliani has never recognized the role individual gun ownership can play in actually reducing crime.
When he says that “public safety is the most fundamental right that people have,” he is almost surely speaking of the community-wide security provided by effective policing. As libertarian author Jacob Sullum quips: “[Giuliani’s] sudden interest in the Second Amendment, like his sudden interest in strict constructionism, is merely an affectation intended to allay the concerns of Republican primary voters.”
But wasn’t Giuliani tough on crime in New York? Didn’t he turn around the city’s dreadful reputation as one of the most dangerous places in America? Yes — and no.
To begin with, he built his public career on his record as a prosecutor in the 1970s, first as a law clerk to a federal judge, who help Giuliani obtain a deferment to avoid the military draft, and then in the office of the United States attorney.
He eventually rose to become an associate attorney general under Ronald Reagan, at which point he changed his political party affiliation from Democrat to Republican.
In 1988, his outspoken mother, Helen, described the change this way: “He only became a Republican after he began to get all these jobs from them. He's definitely not a conservative Republican. He thinks he is, but he isn't.”
In his capacity as a U.S. attorney, Giuliani developed a reputation for publicly humiliating the criminals he busted, most famously for his use of the “perp walk,” which some have even suggested he patented. When the time came to arrest some prominent Wall Street traders and bankers that were accused of insider trading, Giuliani had the defendants arrested at their offices, and handcuffed and escorted from the building under the eye of the press, which had been alerted ahead of time. This is not to say that his prosecutions were all show — far from it. But the “show” would become a big part of his approach to crime.
Focus on Crime
According to many, Mayor Giuliani’s signal first-term accomplishment was the hiring of William J. Bratton as police commissioner. It was he, as much as the mayor, who embraced the so-called “broken-windows” approach to policing, whereby small crimes were taken seriously in order to mitigate more serious offenses.
By cracking down misdemeanors such as turnstile jumping and aggressive panhandling, two things happened: first, many of those arrested for the small crimes turned out to be wanted felons, and, second, people began to feel safer. But it was Bratton who instituted New York’s CompStat program — a neighborhood-by-neighborhood computer record of every crime, which tracks trends and directs the NYPD to increase foot and car patrols in high-crime areas and which helped lead to dramatic improvements in public safety. And there are some notable dissenters who suggest Giuliani wasn’t quite the crime-fighter he claims to be.
One, economist Steven D. Leavitt of the University of Chicago and co-author of the best-selling book “Freakonomics,” argues that the crime reduction actually occurred nationwide and was caused mostly by abortion, one result of which has been a smaller cohort of young, economically disadvantaged males — the ones who commit the most crimes. And Philip Kafinitz of the City University of New York Graduate Center points out that the slowing of the crime rate had actually begun under David Dinkins, Giuliani’s predecessor.
The real debate isn’t over the drop in crime but rather over who deserves most credit: Giuliani or Bratton.
One can argue that the hiring of Bratton was an example of a first-rate Giuliani personnel decision, but there is the counter argument that Rudy also fired Bratton when he began getting too much credit for the success in the city’s policing practices.
There are others who argue that we should forget about Bratton and focus instead on Bernard Kerik, Giuliani’s third police commissioner, whose ethical troubles are a continuing embarrassment and threat to Rudy’s presidential ambitions.
The Darker Side of Rudy
In November, Kerik was the subject of a multicount indictment by a federal grand jury on charges of conspiracy, mail fraud, wire fraud, and lying to the IRS.
Potentially more damaging to Giuliani’s squeaky clean image are the allegations of improper accounting of expenses related to visits Mayor Giuliani made to his then mistress (and current wife), Judith Nathan — expenses for his security detail, a clearly public matter, incurred during trysts with Nathan.
“I had 24-hour security for the eight years that I was mayor,” Mr. Giuliani said in a statement responding to the charges first made by Politico.com. “They followed me every place I went. I had nothing to do with the handling of their records, and they were handled, as far as I know, perfectly appropriately.”
To be sure, big-city mayors probably do need full-time security. The trouble is, the billing of the expenses related to the former mayor’s NYPD bodyguards appears to have been “creatively” accounted for in the budgets of city agencies unrelated to his mayoral functions, public or private.
As Politico summarized, “documents, obtained . . . under New York’s Freedom of Information Law, show that the mayoral costs had nothing to do with the functions of the little-known city offices that defrayed his tabs, including agencies responsible for regulating loft apartments, aiding the disabled, and providing lawyers for indigent defendants.”
In a Jan. 24, 2002 letter, the New York City comptroller, William C. Thompson, informed the city’s current mayor, Michael Bloomberg, of a particularly troubling discovery during an audit of expenses charged in 2000 to several obscure city agencies, among them the Loft Board, which is charged with regulating the transformation of industrial real estate into residential housing.
“My auditors found non-local travel-related expenses, totaling $34,000, that were Mayor’s Office expenses but were charged to . . . [the] Loft Board,” Thompson wrote. “The Director of the Loft Board confirmed that her office did not incur any of these . . . expenses during fiscal year 2000.”
Giuliani’s assertion that this is the way such things have always been done is unlikely to pass muster.
Scandal rarely does.
“Rudy Giuliani's history with Bernie Kerik is a story of poor judgment,” Sen. John McCain said in a campaign statement recently. “A president's judgment matters, and Rudy Giuliani has repeatedly placed personal loyalty over regard for the facts.”
Imagine what his Democratic rival will say once the presidential campaign begins in earnest.
Brad Miner is a former literary editor of National Review and the author of five books, including the just-published “Smear Tactics: The Liberal Campaign to Defame America” (Harper).
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