GWorks Interviews: Adam Winkler
In GWorks Interviews: Adam Winkler, Professor Adam Winkler discusses the history and jurisprudence of the Second Amendment right to "keep and bear arms."
Adam Winkler is Professor of Law at UCLA School of Law and author of Gun Fight: The Battle of the Right to Bears Arms in America, a history of the Second Amendment.
Part One: Heller District of Columbia v. Heller, the 2008 landmark Supreme Court decision that established an individual right "to keep and bear Arms."
Part Two: A Triumph of Originalism Heller's reasoning, dissents and potential importance.
Part Three: States & Rights How the Second Amendment affects the states and what the gun cases say about understanding constitutional rights.
Part Four: Guns, History & Understanding The history of guns in America and its impact on understanding guns and gun control.
Part Five: Government, Guns & Race The relation of government, guns and race.
Part Six: Conclusions What surprised Professor Winkler in his research and what the Second Amendment says about who we are.
Part One: Heller
I found so many fascinating and surprising stories about
the ways in which our efforts to balance gun rights with gun control
have shaped profoundly our nation in so many unexpected ways, from
the [Ku Klux Klan] K.K.K., which began as a gun control organization,
to the Wild West, which had the most restrictive gun control laws in the nation,
to the NRA itself, which sought to promote gun control laws
that today that same organization seeks to invalidate.
GOVERNINGWorks (GWorks) [00:00:31:15] Why did you write Gunfight?
Adam Winkler (AW) [00:00:35:15] Well, I wrote this book for two reasons. One: At the heart of this book is a story of an amazing lawsuit...over...known as District of Columbia against Heller...a Supreme Court case. It was the very first time, remarkably, that the Supreme Court had occasion to clarify the meaning of the Second Amendment.
It had long been ambiguous what the meaning of the Second Amendment was. And, this was the first time that the Court was going to really make clear that the Second Amendment protected an individual right to bear arms. And, that story was a great story.
The litigation was brought by...not by the [National Rifle Association] NRA or any of the major gun rights organizations but by a trio of Libertarian lawyers led by a young lawyer named Alan Gura, a 30-something lawyer who had never taken a case to the Supreme Court, in fact had never even argued a case at the Court of Appeals before this case. And, the NRA fought him at every turn. So, here you have this young rookie lawyer, inspired by his philosophical leanings towards Libertarianism, promoting a view of the Second Amendment that you’d think the NRA would be eager to adopt. But, instead, they sought to scuttle this lawsuit at every turn. So, it had great drama to it, that story.
But, the second reason was that, in my research over guns, I found so many fascinating and surprising stories about the ways in which our efforts to balance gun rights with gun control have shaped profoundly our nation in so many unexpected ways, from the [Ku Klux Klan] K.K.K., which began as a gun control organization, to the Wild West, which had the most restrictive gun control laws in the nation, to the NRA itself, which sought to promote gun control laws that today that same organization seeks to invalidate.
GWorks [00:02:20:15] What is District of Columbia v. Heller about?
AW [00:02:24:15] So, District of Columbia against Heller, like I said, it was the first time the Supreme Court clarified what the meaning of the Second Amendment was and clarified that it protected an individual right to bear arms.
The case involved a lawsuit over a ban on hand guns in the District of Columbia. This ban on hand guns had been in effect since 1976. But, the NRA was not challenging it. It was a good law on the books. It wasn’t a terribly effective law. As many people know, Washington, DC in the 1980s, burdened especially by the Crack [Cocaine] epidemic, became the murder capital of the nation.
So, this law was in effect. And, in 2001, when President George [W.] Bush was elected, his Attorney General, John Ashcroft, sent a letter to the NRA,1 saying, ‘Hey, the Administration has changed the official position of the Executive Branch. We now interpret the Second Amendment to protect an individual right to bear arms, unrelated to Militia service.’ And, that really inspired this trio of Libertarian lawyers to bring a lawsuit against the District of Columbia which had the most onerous gun control law in the nation. So, they thought it would be a wise strategic choice to target that particular law.
GWorks [00:03:42:12] Was the Bush Administration’s policy change stark? What inspired the change?
AW [00:03:46:12] Well, the position was stark in this sense: So, for decades, the Federal courts had interpreted the Second Amendment to protect a right only associated with state Militia service and had very little relevance for ordinary gun control laws. And the Executive Branch, even under Reagan...Presidents [Ronald] Reagan and others, hadn’t really challenged that point of view...for pragmatic reasons. They hadn’t challenged the view because those gun control laws that were on the books were being used to put away criminals, especially in the War on Drugs. So, for Law-and-Order Presidents, even the conservative Presidents of the past, there was no need for them to articulate a new view of the Second Amendment—or, perhaps an old view of the Second Amendment.
But, the Bush Administration came in with a lot of strong support from the NRA. The NRA was the biggest outside, independent financier of the Bush Administration—sorry, the Bush election campaign of 2000 and obviously had a lot of support by the gun rights movement. So this was seen at the time just sort of an effort to suggest to the gun rights community that, ‘we are on your side.’
What happened, however, is that because of that position that they took, that position paper that the Attorney General John Ashcroft took, inspired drug dealers, gang bangers, anyone accused of a gun crime to bring challenges to their criminal conviction on the basis of the Second Amendment.
These Libertarians said, ‘Hey, we don’t want the next big Second Amendment case to go up to the Supreme Court to be, ‘United States against Crack Head.’ That’s not going to be a great vehicle for reinvigorating the Second Amendment. So, they went out a recruited, strategically, like the [National Association for the Advancement of Colored People] NAACP had done in the Civil Rights movement—really good plaintiffs to target a really egregious law in a way that might warrant the Justices’ sympathy rather than their anger.
GWorks [00:05:35:15] What did the District of Columbia’s law do?
AW [00:05:39:15] We often refer to it as a ban on hand guns. But, it was actually even more than that. It banned civilians from owning hand guns with certain exceptions for security personnel and what-not. But also heavily restricted long guns—rifles and shotguns. It said that if you owned a rifle or a shot gun, you had to keep it locked or disassembled. And, you were only allowed to unlock it or assemble it for specified recreational reasons, such as hunting or target shooting. The thing was, in the District of Columbia, there was no place to hunt, there’s no lawful hunting areas in the District of Columbia. And, there’s no places you can shoot a shot gun or a rifle. You need a special kind of long range firing range to be able to be able to shoot them. And so there was no such range available to civilians. So, effectively, if you lived in the District of Columbia, you couldn’t use your firearm for anything. And there was an early court ruling that said that by ‘recreational purposes’…[technical difficulty]2...and did not mean ‘self defense.’ So, the court suggested that if there was a burglar coming into you house, and you had a rifle that was lawfully owned, properly registered and dis assembled the way the law required, you were not even allowed to assemble that rifle and use it in self-defense inside you own home. So, effectively, Washington, DC’s law was a ban on the use of any firearm for personal self-defense—long gun or hand gun.
GWorks [00:07:02:15] Who is “Heller”?
AW [00:07:06:22] Dick Heller was—is—was a security guard in a Federal court house in Washington, DC, who, during the day, was required to have a sidearm to protect the judges in the court house that he was in. When he went home at night, he had to leave his gun at work and not have protection of a firearm. Heller lived in a bad part of Washington, DC, where there was a lot of crime and Heller thought that he really wanted a firearm for his own personal self-protection. So, he was one of about six plaintiffs who were recruited by this trio of Libertarian lawyers led by Alan Gura to bring this lawsuit against the District of Columbia.
—End of Part One—
Part Two: A Triumph of Originalism
It’s almost like [James] Madison, who wrote that provision,
finally discovered the comma and wanted to put as many of
them as he could within that text.
GOVERNINGWorks (GWorks) [00:00:16:07] What does the Second Amendment say? And what issue did the Supreme Court address in Heller?
Adam Winkler (AW) [00:00:31:15] As most Americans know, the language of the Second Amendment in maddeningly ambiguous. It says,
“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.”3
It’s almost like [James] Madison, who wrote that provision, finally discovered the comma and wanted to put as many of them as he could within that text. But, as a result of all those commas, it is kind of unclear exactly what the Second Amendment was designed to do, at least on the face. And the Supreme Court was facing two competing interpretations, really.
One interpretation, which had traditionally been adopted by the Federal courts, was that the Second Amendment protected the right of state Militias to be free from Federal interference. So, the Federal government could not disarm the state Militias. A competing view grew...has arisen and, in fact, has been in American dialogue and political debate since the founding, which was that the Second Amendment protected a right of individuals to own guns for personal self-defense, totally apart from service in a state Militia.
So, the Supreme Court was really charged with sorting out which of these two views of the Second Amendment is the right view of the Second Amendment. And the Court, in a landmark decision, held that the view that the Second Amendment protects an individual’s right to bear arms was the correct one.
GWorks [00:02:05:04] How did the Court reach its decision?
AW [00:02:09:04] Well, the Court got there through what was purportedly an originalist methodology by the lead proponent of originalism in the Supreme Court, Justice Antonin Scalia. He wrote the majority opinion for the Supreme Court, a 5–4 decision in the Heller case, striking down that DC gun law. And, he got there mainly by looking at history, by saying, ‘when we look back at what the Founding Fathers intended, they intended that ordinary civilians be armed.’
The Founding Fathers were very much opposed to the idea of a Standing Army. This has reasons to do with the traditions that they were used to in England. They thought a Standing Army would be used by the King to control the people, to disarm the people and provide a security force that he would use to tyrannize ‘We the People.’
So, when the Framers wrote the Second Amendment and referred to a “well regulated Militia,” they were talking not about a Standing Army, they were talking about a citizen Militia: ‘We the People, called out to arms to defend our nation and to fight.’ And the Framers believed that civilians with guns would prevent government from becoming too tyrannical.
GWorks [00:03:29:08] How did Justice Scalia address the language of the Second Amendment?
AW [00:03:33:08] Well, there are so many different issues that he had to address. What does the Second Amendment mean by “the right of the people to keep and bear Arms”? Did that mean the people as a collectivity? That’s what the ‘Militia theory’ had argued—that ‘We the People’ come together as a collectivity…act in the Militia to protect our liberties.
However, Justice Scalia said, if we look at the way the phrase “the people” is used throughout the Bill of Rights, in the First Amendment it says, “the right of the people to peaceably assemble.”4 We don’t interpret that to mean anything other than an individual right of persons to associate and organize for political reasons. When the Fourth Amendment says, “the right of the people to be secure in their homes from unreasonable searches and seizures,”5 we don’t interpret that as a collective right. We interpret that as the right of individuals to be free in their own home from government over-reaching.
So, he says, ‘Well, we must understand “the people” in the same way in the Second Amendment as we do in the First Amendment and the Fourth Amendment and in some other provisions of the Constitution.’ We interpret those really as a reference to the people having individual rights.
And, there was disagreement among this view. Justice [John Paul] Stevens, in his dissenting opinion in the Heller case, argued that, “We the People” was a collective reference and wasn’t quite the same as the Fourth Amendment or the First Amendment.
Justice Stevens and Justice Scalia disagreed on a number of other textual matters in the Second Amendment. What does it mean “to keep and bear Arms”? Justice Scalia said that’s an individual right to have an arm in your home for self-defense. Justice Stevens said that’s a right that’s associated with military service. You ‘bear arms’ in a military context not outside of a military context in his view.
And so, they disagreed on many aspects...almost every word of the amendment occasioned some disagreement between the two contending sides.
GWorks [00:05:28:22] Would you discuss Justice Stephen G. Breyer’s dissent?
AW [00:05:32:22] Sure. No good Supreme Court opinion goes without a number of concurring or dissenting opinions.
Justice Breyer’s opinion was a dissenting opinion. He sided with Justice Stevens but wrote for himself to suggest that, regardless of the nature of the right to bear arms, whether it’s an individual right or a collective right, that there must be ample room for states to carve out gun control laws. And that he thought the District of Columbia was well within its rights to ban hand guns, which are a type of firearm often used in crime. The vast majority of criminal acts committed with a firearm are committed with a hand gun. They do a lot of damage. Easy to conceal. Easy to port...transport around. So, Justice Breyer thought that the Court should balance the right versus the ability of cities and states to protect public safety.
GWorks [00:06:28:02] Are Justice Scalia’s views in Heller “originalism”?
AW [00:06:32:02] Well. They are but they’re not.
So, on the surface, Justice Scalia’s opinion seems like the real embodiment of originalism. And, in fact, right after the decision came down, it was heralded as a triumph of originalism, the crowning achievement in Justice Scalia’s decades-long effort to make originalism, not living constitutionalism, the foundation of constitutional meaning today.
But, as I argue in Gunfight, actually his opinion is quite a bit more complicated than that. And, in very important ways, seems to adopt a living Constitution approach.
There’s a really important paragraph towards the end of Justice Scalia’s opinion, where he says, ‘nothing in this opinion should be taken to cast doubt upon long-standing prohibitions like bans on felons or the mentally ill from having firearms, laws restricting guns away from sensitive places like schools and government buildings, or commercial sales restrictions, like background checks, things like that.’6
And that is an important paragraph because, when interpreting the Second Amendment, we must do more than just identify the nature of the right. We must use that amendment to try to figure out what are the exacts limits on what government can do. That’s…Can it pass this law? Can it pass that law? That’s where the rubber hits the road in constitutional analysis. And Justice Scalia, by saying that laws banning felons and the mentally ill and laws banning guns from sensitive places, laws restricting commercial sales—by saying those things are all legitimate, the Court was not embodying an originalist methodology, because none of those kinds of laws were in existence when the Founding Fathers wrote the Second Amendment. Those laws trace their heritage mostly to the Twentieth Century and are a result of modern-day regulation. So, in many ways, Scalia’s opinion turns out to rely on the same kinds of living constitutionalism that Justice Scalia inveighs against so often.
GWorks [00:08:33:12] If the opinions in Heller agree there is room for gun regulation, are the opinions distinctions without a difference?
AW [00:08:39:12] I don’t think that they’re distinctions without a difference. And, I think one of the important differences they might have is in terms of public debate.
I think that if the Supreme Court had said that the Second Amendment does not protect an individual right to bear arms, it would lead to a lot of unhappiness, it would lead to a real re-invigoration of the guns rights movement—it’s already a strong movement in America. But I think you’d see a much more powerful movement. In fact, there are some who have suggested that the election in 2008 of Barack Obama might have been very different had the Supreme Court that summer held that the Second Amendment did not protect an individual right to bear arms because it might have stimulated gun owners who are known to turn out in force for their favorite candidates to really show up and give more support to John McCain who might...they imagine might have pushed for Justices more friendly to the individual right to bear arms.
So, there are differences in a variety of ways.
But one of the distinctive features of Scalia’s opinion, that people often miss, is how it did carve out plenty of room for states and localities to enact gun control laws. And, indeed, to this day, there have been well over 200 Federal court decisions on the constitutionality of gun control since Heller was decided. The vast majority of them uphold the challenged gun control laws. Only a very, very small number of laws have been called into question.
GWorks [00:09:58:14] How is life after Heller different?
AW [00:10:02:14] Well, I think for the vast majority of gun control laws that were politically feasible, I guess that’s a small number these days, there’s really no effective difference. The Court’s not going to strike down the laws and these laws, whether they get passed or not, really doesn’t have much to do with the Second Amendment per se.
I think there’s a big implication in the Heller case that might be positive for the gun debate more generally.
I’m hopeful that, by clarifying that the Second Amendment protects and individual right to bear arms, that government can never come and take away all of the civilian guns, that that might quiet the gun debate in the long run, that maybe in the long run gun owners will not feel that every gun control law puts us on a slippery slope towards disarmament because the Supreme Court hopefully will say repeatedly that government can never take away all the guns. And if they do that, I think there are a lot of gun owners out there who would support laws that gun control organizations call ‘common sense’ or ‘reasonable gun control laws,’ things like extending background checks to all gun purchasers, restrictions on the most dangerous types of weapons, other kinds of laws, might be supported by many gun owners who today refuse to support them because they’re afraid of losing their right to bear arms entirely.
So, I’m hopeful that Heller points a way to restore some balance into the gun debate and maybe help us break the current stalemate over guns in America.
GWorks [00:11:32:29] Did the Court consider the political implications of deciding Heller?
AW [00:11:36:29] It’s so hard to say what was in the minds of the Justices when they write their opinions. All we really have are the opinions themselves. Maybe years later we’ll get some draft opinions that will provide more answers as to exactly what they were thinking when they wrote the opinions. But, I think it’s clear to any student of constitutional history that, over the course of American constitutional law, our interpretations of this fundamental charter have shifted and moved with social movements, with changes in understanding about how we think about different phrases.
There is no question that the framers of the Fourteenth Amendment in the 1860s, passed right after the Civil War, did not intend the guarantee of equal protection of the laws to outlaw racially segregated schools. Now, we know that because they had racially segregated schools at the time and even the most liberal, progressive state, like Massachusetts, had racially segregated schools. And no one at the time ever suggested that the Fourteenth Amendment outlawed racially segregated schools. It wasn’t until about 80 years later that the Supreme Court held that indeed the Fourteenth Amendment protected the right of individuals to be free from race discrimination in places like public schools.7 And that’s a result of the Civil Rights movement, it was a result of World War II and how that...how our experience in World War II changed fundamentally our understanding of what...the harms of race discrimination.
So, there’s no doubt that the law moves and shifts with social movements and with development of ideas. And, I think there is no doubt that in America today, the view the Second Amendment protects the individual right to bear arms is very well accepted, very well established and, even if you believe in a living Constitution, I think you should agree that the Second Amendment protects the individual right to bear arms.
—End of Part Two—
Part Three: States & Rights
In the Heller case, the Supreme Court said the Second Amendment
limits the ability of the Federal government, District of Columbia included,
to restrict firearms. Left unanswered in that case was whether that
right applied with equal force to state and local governments.
GOVERNINGWorks (GWorks) [00:00:31:15] In 2010, the Supreme Court decided a case related to Heller, McDonald v. City of Chicago. What is McDonald about?
Adam Winkler (AW) [00:00:35:15] McDonald against City of Chicago was the follow-up case to District of Columbia against Heller.
In the Heller case, the Supreme Court said the Second Amendment limits the ability of the Federal government, District of Columbia included, to restrict firearms. Left unanswered in that case was whether that right applied with equal force to state and local governments. And the McDonald case dealt with a ban in the City of Chicago on hand guns and the Court...by the same five-four majority—there was one shift on the liberal side: Justice [David H.] Souter had retired and was replaced by Justice Sonia Sotomayor—but essentially the same five-four break-down occurred and the Supreme Court held that the Fourteenth Amendment did indeed extend the protections of the Second Amendment to the state and local governments. So that was an important case because obviously the vast majority of the gun control laws on the books today are enacted by state and local governments.
GWorks [00:01:38:13] What is at issue with applying the Second Amendment to the states?
AW [00:01:42:13] Virtually every historian today believes that the Fourteenth Amendment was designed in part to extend the protections of the Bill of Rights to state and local governments.
People don’t often realize it but the Bill of Rights, the first eight amendments to the Constitution, were really only designed to limit the power of the Federal government and had nothing to say about what state and local governments did. That’s why the First Amendment says, ‘Congress shall make no law abridging the freedom of speech.’8 It doesn’t say, ‘the State Legislature in Massachusetts’ or ‘the New York City Council.’ It says, “Congress” because it was a restriction only on the Federal government.
But even though the Framers of the Fourteenth Amendment sought to extend those protections to state and local governments, the Supreme Court, right after the Civil War, held that the Fourteenth Amendment did not extend those protections. And, in a series of cases that historians now view as notorious for gutting the Fourteenth Amendment, the Supreme Court denied really the promise of the Fourteenth Amendment to We the People.
When, in the early 1900s, the Supreme Court decided, ‘Well, maybe some of these historians are right; maybe we should apply some of these provisions of the Bill of Rights to the states,’ they didn’t know which provision in the Fourteenth Amendment to look to. Earlier Court decisions, right after the Civil War, had said that the ‘Privileges or Immunities of citizenship’ were limited in their scope and did not include these basic Bill of Rights protections.9 And so the Court used a different provision of that same Fourteenth Amendment—the “Due Process Clause”10—to protect these rights. But that was always very controversial. The Supreme Court has done...has basically now incorporated virtually all of the Bill of Rights to apply to the states—not all of it but most of the provisions in the Bill of Rights to apply to the states and done it through the Due Process Clause.
There was an effort in the McDonald case, an effort, by the way, that I was a part of—I signed a Brief11 that made this argument—that argued...it’s time for the Court to drop the Due Process Clause and to recognize the historical accuracy of understanding the Privileges or Immunities Clause to protect these Bill of Rights provisions, that the Framers of the Fourteenth Amendment, when they said that, ‘no state shall deny to any citizen the privileges or immunities of citizenship,’12 they were intending to refer to the privileges and immunities identified by the Bill of Rights.
But, the Supreme Court did not take us up on that. As usual, my argument loses in the Supreme Court. But, in this case there was only one Justice [Clarence Thomas] who agreed that we should restore the Fourteenth Amendment’s privileges or immunities clause to its rightful place.
GWorks [00:04:27:29] Would there be a difference, if the Court were to use the Privileges or Immunities Clause?
AW [00:04:33:29] For most practical purposes, there’s really no difference. I don’t think that there was anyone suggesting that the Court should radically re-write the Constitution or radically re-write most its jurisprudence in interpreting the Fourteenth Amendment. But just recognize that the Court had been forced by...circumstances, namely an early Fourteenth Amendment case that had gutted the Privileges or Immunities Clause, the Court had been required to look at the Due Process Clause. But it never really made much sense. The Due Process Clause says that, “no state shall deny to any person life, liberty or property without due process of law.”13 But, the Court read that provision to protect substantive rights even apart from Due Process. So, you can’t deny some rights even if you provide all the process in the world. Well, that never really made much sense in terms of understanding the text. It says, “due process.” It doesn’t say, ‘you cannot restrict these rights.’ In fact, it seems to suggest you can restrict these rights as long as you have the appropriate procedures in place.
But, so the Court had used this Due Process Clause but it had never quite fit the history or the language. And in fact I think part of a powerful criticism that conservatives have made over the years is that by interpreting this Due Process Clause expansively to protect substantive rights when the phrasing of the clause clearly indicates it was designed to protect procedural rights—not substantive rights—that maybe by switching to the Privileges or Immunities Clause we might restore a real, historically accurate meaning to the Constitution and one that would make sense. If I said to you that, ‘look, the Constitution protects you in the enjoyment of your Privileges or Immunities of citizenship, the Privileges or Immunities’ not language we use often today, but what they meant by that were the privileges embodied in the Bill of Rights, it would be...I’ll tell you, it would make it a lot easier for me when I teach Constitutional law every year to explain what the Court’s doing in these cases because the textual provision would be that much more clear.
GWorks [00:06:37:10] Maybe there is a real difference in how we think about a right?
AW [00:06:43:10] I think the real difference is in it makes more sense of the Constitution. I don’t think it necessarily makes a big difference on the ground in terms of what laws are constitutional and what laws are not constitutional. But, from my perspective, it’s important to get the history right in constitutional interpretation. I don’t think history is the be-all-end-all in constitutional interpretation. But, I do believe it’s important and it’s an important factor in how we understand what the Constitution means. And, relying on a textual provision that doesn’t really make any sense, I think discredits the process of constitutional interpretation and the method of constitutional interpretation. And providing a more sound footing would, I think, help illuminate for all Americans the breadth and scope of these constitutional rights.
GWorks [00:07:32:23] In a recent article in The New Yorker, Jeffrey Toobin suggests that Heller and McDonald are victories for Justice Clarence Thomas. Is there a winning jurisprudence in these cases? How might Heller and McDonald affect the Court in the future?
AW [00:07:40:23] Well, to understand Justice Thomas’s victory—I don’t think it’s much of a victory, he was one of the dissent...he was one of the majority voters in the Heller case but did not write the opinion and he was...he sided with the majority but wrote his own opinion in the McDonald case, and in the McDonald case he was the lone Justice to support the idea that the Privileges or Immunities Clause should be reinvigorated rather than the Due Process Clause. So, I don’t see those cases as a great victory for Justice Thomas.
To the extent they say anything about Justice Thomas, I think they show one of the things that Toobin was really getting at in that piece which is that he’s [Thomas] become a real intellectual leader on the Supreme Court, that he’s much more consistent in his originalism and much more willing to bite the bullet on the hard questions than Justice Scalia is. Justice Scalia is the more famous originalist. But I think the majority opinion in Heller shows that in many ways he’s not nearly as originalist as he claims and that a living constitution idea really is embedded within so many of the important parts of the Heller decision.
But, nonetheless, I think because it was, at least superficially, a triumph of originalism, the Heller case, I think it definitely helps the cause of originalists more than it helps the cause of anyone else. So, to the extent that Justice Thomas is a true originalist, then he’s helped as well.
GWorks [00:09:05:18] Do Heller and McDonald signal that originalism is a viable argument before the Court?
AW [00:09:09:18] There’s no doubt that, with the current conservative majority on the Court, with Justices Scalia and Thomas being such strong proponents of originalism, and Justices like [Chief Justice] [John G.] Roberts[, Jr.] and [Samuel A.] Alito having gone to law school and been among the early first-movers in the conservative revitalization of originalism in the 1980s, that there is no doubt that originalism plays an important role in constitutional interpretation. And, years ago Justice Scalia used to say in his standard stump speech out there that you could shoot a canon through the law faculty of any major law school and not hit a single originalist. And I think there’s no doubt that today originalism is alive and well and has become a really important if not the dominant way in which lawyers think about some of these constitutional questions.
—End of Part Three—
Part Four: Guns, History & Understanding
[T]he fact that we have a right to bear arms does not
mean that the government cannot enact gun safety laws
that could be effective to prevent crime or criminal misuse of guns.
GOVERNINGWorks (GWorks) [00:00:31:15] How would you characterize our history with guns?
Adam Winkler (AW) [00:00:35:15] Now that the Supreme Court has reinvigorated the Second Amendment, clarified its meaning, the question is, what does that mean for gun control? Does that mean that many forms of gun control are unconstitutional?
What I tried to do in this book is to look back and to say, ‘How have we tried to balance gun rights with gun control through the course of American history?’ For, while the Second Amendment has long been ambiguous to many lawyers, it’s very clear that the right to bear arms is still one of the most established constitutional rights that Americans have. We don’t have to look at the Second Amendment. We can look at the state constitutions. Every one of the 50 states has its own constitution. Forty-three of those states protect an individual right to bear arms clearly unrelated to Militia service with cases going back to the early 1800s clarifying that this is an individual right to bears arms for personal self-defense.
But what I found in doing my research is that right has always co-existed with gun control. In other words, the fact that we have a right to bear arms does not mean that the government cannot enact gun safety laws that could be effective to prevent crime or criminal misuse of guns.
So, one of the larger...over-arching points of the book is to show that gun rights and gun control have long existed side by side and then to show all the fascinating and surprising ways in which efforts to balance those two—gun rights and gun control—have shaped the nation.
GWorks [00:01:58:27] Would you describe early gun control?
AW [00:02:02:27] Well the NRA today claims to be an inheritor to the founding vision of protecting gun ownership. But, the Founding Fathers had gun control laws that were so burdensome that, were Madison running for office today, the NRA would never endorse him.
The Founding Fathers not only barred large segments of the population from owning guns—namely, slaves and also free blacks, who otherwise had the vast majority of property rights, were denied this particular right. But also political dissenters. In the years before the Revolution, if you didn’t swear allegiance to the Crown, you could be disarmed. And then, once the Revolution took hold and the political winds changed, if you didn’t swear an oath of loyalty to the Revolution, you would be disarmed.
Now, we’re not talking about people who were fighting for the other side who got disarmed. We’re talking about people who were exercising their freedom of conscience and their political beliefs and who just didn’t support the Revolution—thought it was a bad idea. Historians believe that about 40 percent of Americans at the time thought that the Revolution was a bad idea and that we should remain part of the Crown. But, those people were subject to disarmament.
But then there were also a whole series of laws related to the Militia. As I mentioned earlier, the ordinary citizens were the Militia. You’ve heard about the Minutemen, who had to go grab their gun in a minute and show up to fight. Well, that was the Militia.
But, the Founding Fathers had very strict laws that they imposed on members of the Militia. Number One: They had to go out and purchase a military-style firearm that met certain specifications under law. So, even if you had a gun or didn’t want to own a gun, you had to go get the specific type of gun. It was their own version of the individual mandate that proven so controversial in President Obama’s healthcare overhaul. And then when you were...when you had this gun you had to show up at mandatory musters where your gun would be inspected and registered on governments rolls.
The Founding Fathers believed in civilian ownership of guns and the government should never be able to take away all those guns because that would lead to tyranny. But, they did not believe that gun ownership was a Libertarian license to do whatever you wanted with a gun. They imposed very burdensome restrictions on gun owners.
GWorks [00:04:12:12] Is it clear what the Founding Fathers—James Madison in particular—meant with the Second Amendment?
AW [00:04:16:12] No. There were very few definitive statements. What you do have in the history is a lot of discussion of We the People being the Militia and We the People as a Militia needing the right to keep and bear arms to protect ourselves.
One of the most important dates in American history actually happened long before the Revolution. And it was back in 1689, when the English Bill of Rights was first signed.
The English Bill of Rights was adopted when William and Mary took over the Crown from King James II. James II had tried to disarm the people and had violated a whole scope of...a whole set of their rights, including their right to be...petition their government for redress, a right to be...to due process of law before you were imprisoned. And one of things, when they ousted James II, one of the things they did...the elites in England...was force William and Mary, as a condition for taking the throne, that they sign this English Bill of Rights that protected the rights of free English people.
The Framers used that same Bill of Rights as a model for them a hundred years later when they were devising their own Bill of Rights. And indeed protected many of the same rights, including the right to be free of unreasonable searches and seizures, the right to due process of law and the right to keep and bear arms.
So, we know more from the historical context than anything else. There were a lot of statements about...I don’t mean to suggest there were no statements about what the meaning of the Second Amendment was…but hard to translate into today’s meaning because all we know really is that it was really focused on protecting the rights of We the People as part of an unorganized Militia to have guns and to be free from disarmament by the government. But, it doesn’t tell us very much about background checks or bans on machine guns.
—End of Part Four—
Part Five: Government, Guns & Race
I do think that one of the mistakes we make is over-emphasizing
the Second Amendment and not recognizing the importance of the
Fourteenth Amendment. For, whatever the framers of the Second
Amendment thought, and there’s been a lot of dispute about that,
it’s pretty clear that the framers of the Fourteenth Amendment sought
to protect the right of individuals to have guns for their own personal self-protection.
GOVERNINGWorks (GW) [00:00:31:15] Is the Second Amendment meant to protect a particular kind of existence with government?
Adam Winkler (AW) [00:00:35:15] I think it is. I think it’s designed to protect a democratic people. I think the framers of the Second Amendment really, sincerely feared that a government that disarmed the People would be a tyrannical government that would run roughshod over their liberty. That was their experience with James II; it was their experience with King George III and the colonies who tried to disarm the rebellious colonies. So, it did try to protect a view of democratic self-governance that the framers thought was not possible.
But, things change with the Fourteenth Amendment.
I do think that one of the mistakes we make is over-emphasizing the Second Amendment and not recognizing the importance of the Fourteenth Amendment. For, whatever the framers of the Second Amendment thought, and there’s been a lot of dispute about that, it’s pretty clear that the framers of the Fourteenth Amendment sought to protect the right of individuals to have guns for their own personal self-protection.
And, it is a great story that I tell in Gunfight about the rise of the KKK as a gun control organization.
In the Civil War, before the Civil War, in the South blacks were never allowed to own guns. Right. Completely barred from owning guns.
But what happens in the [Civil] War is that blacks arm up for the first time. Some fight for the Union Army and the Union Army, who owes its soldiers back wages and can’t pay them, allows the soldiers to take home their guns, if they wish. So, the black soldiers take home their guns. Other blacks in the South who don’t fight are easily able to buy guns on the Black Market, which is literally flooded with the hundreds of thousands of firearms that had been manufactured for the war but were, once the war ended, no longer needed.
So, blacks arm up in the South because they know that whites are not going to give up on their view of white supremacy too easily. And the KKK and other groups form to go out at night and take away those guns from the freed men. Because they knew, so long as the freed men had guns, they’d be able to fight back and they wouldn’t be as subservient as whites wanted them to be.
The framers of the Fourteenth Amendment clearly thought that, by protecting the Privileges or Immunities of citizenship, including, as they said numerous, numerous times on the floor of the Senate and the House, including the right to keep and bear arms. They were trying to protect the right of the freed men to be free of disarmament effort by state and local governments. Things like the Black Codes which barred blacks from a whole series of constitutional rights, including their right to keep and bear arms.
So the Fourteenth Amendment, in fundamental ways, protects an individual’s right to own firearms for personal self-defense perhaps even more so than the Second Amendment as it was originally understood and meant by the Framers.
GWorks [00:03:09:05] Does this understanding of the Fourteenth Amendment affect Heller?
AW [00:03:15:05] The role of the Fourteenth Amendment was not central to the Heller case and the Heller decision, which was really focused on whether the Federal government, which is bound by the Second Amendment, was restricted in its ability to ban hand guns or other kinds of gun control laws.
It was the McDonald case, decided in 2010, that fundamentally relied on the Fourteenth Amendment because the question in that case was, did the founders of the Fourteenth Amendment intend to protect the right of the People to keep and bear arms free from state and local interference. The Court said that it did.
GWorks [00:03:47:23] How would you characterize the role of race in gun rights and gun control?
AW [00:03:51:23] One of the most remarkable things I found in my research for Gunfight was the profound role that race and racism has played in our approach to guns. The Founding Fathers, who wrote the Second Amendment, supported laws restricting on the basis of race gun ownership. Like I said earlier, slaves and free blacks even, who otherwise had most of the rights, were not allowed to own firearms. The KKK begins in some ways as a gun control organization, its primary strategy in its early days to take away the guns of black people so they couldn’t fight back.
And that element of race and racism goes throughout our history and our approach to guns.
In the 1960s, I tell a great story of how the Black Panthers inspired the rise of the modern gun rights movement. That is was laws that were passed in the 1960s to disarm black leftist radicals—urban black leftist radicals—that ironically sparked a backlash and resentment among rural white conservatives. And the NRA becomes radicalized in the 1970s, if you will, and becomes a much more die-hard, no compromises organization when it comes to gun control. And in part they were responding to laws that were adopted by...among...conservative Republicans, including Governor Ronald Reagan here in California...laws that they supported, along with liberals, to disarm African Americans.
So, race has played a really fundamental role in how we thought about and how we approached guns from our earliest days.
GWorks [00:05:29:05] What has been the NRA’s role?
AW [00:05:33:05] Well, the NRA has really shifted a lot and changed and transformed dramatically. And so, I tell the story in the book also of how the NRA back in the 1920s and 30s used to be the nation’s leading gun control organization. That they used to draft and promote gun control laws. And, in fact, drafted and promoted a wave of restrictions on concealed carry of firearms that swept the nation in the 20s and 30s thanks to the help of the NRA. The NRA today tries to invalidate and overturn those very same laws that it supported 80 years ago.
And the NRA...as the NRA histories will officially admit, really transformed in 1977. That, in the 1970s, there was an effort by leadership to retreat from political advocacy, to close up their Washington lobbying office and to become much more focused on outdoor activities, hunting and shooting, recreational stuff, with a new headquarters in Colorado Springs. And, that helped inspire a group of hard-line gun rights activists who didn’t agree with leadership to actually mount a hostile takeover, a coup d’état, if you will, of the NRA at the 1977 annual meeting of the membership. And this new hard-line group takes over, re-commits the NRA to political advocacy, takes a much more hard-line, no-compromises approach to gun control and becomes the political powerhouse that we know today.
GWorks [00:07:05:13] How have Heller and McDonald affected race and gun rights?
AW [00:07:09:13] I’m not sure how exactly they have impacted the issues of race.
I don’t think that gun control today is primarily designed with race in mind. I think that’s somewhat of an historical relic. It’s not exclusive. I think that you might see race pop up here and there. We haven’t moved completely beyond our obsession with race in America. So, we’ll see those things continue to pop up. But, they haven’t really been central to the gun debate these days.
Indeed, part of the problem is that it is very difficult to see which way the gun debate is moving because it doesn’t seem to move at all these days. There is a real stalemate in American politics over guns. You had Barack Obama coming into office, many people in the gun control community believing he would adopt new, vigorous gun control regulations. But, in fact, President Obama has seemed very reluctant to do so and has indeed liberalized access to guns in a variety of ways since he’s been in office. Passed some new restrictions, too, through regulation. But, it hasn’t been quite the same as it once was.
There are still, though, if you go to a gun show...still find...go through the literature of the really hard-line extremists in the gun debate, you’ll see plenty of obsession with race and racism. A lot of people have not still given up the battles for white supremacy.
GWorks [00:08:26:03] How has the NRA changed?
AW [00:08:30:03] The NRA is obviously the leader of the gun rights movement. But, they’ve been very quiet about the Heller case for a variety of reasons, some very expected.
They fought tooth and nail to scuttle this Heller lawsuit. They did not want the Supreme Court to rule on this case.
When the Libertarian lawyers first brought the idea to the NRA, and said, ‘we’re thinking about challenging this law,’ they tried to convince them to drop it or, if they were going to pursue the case, to add in other kinds of claims that weren’t Second Amendment claims so that the courts could rule on some other issue other than the Second Amendment. When that didn’t work, they tried to mount a hostile takeover of the litigation, where they would derail the litigation, if you will, and focus on non-Second Amendment issues, other issues other than the Second Amendment. That didn’t work. They tried to get a law passed through Congress and, surprisingly, the NRA as strong as it was, was not able to get a law passed through Congress that would overturn DC’s laws and moot the idea of a Supreme Court case. So, they fought against it tooth and nail.
They only came around really at the very last minute, once the Supreme Court had already agreed to hear the case. They did help Alan Gura at the very end.
But, ever since then, they’ve been a little bit quiet about the Heller case—haven’t really talked as much about it as perhaps one might expect.
But, Alan Gura has his own theory as to why that was. And he told me that, you know, he thinks the NRA was so opposed to his lawsuit not just because they were protecting their turf but because they were afraid of two things: One, they were afraid of losing and having a conservative Supreme Court dismiss their view of the Second Amendment. Seven of nine Justices on the Supreme Court when the Heller was decided were Republican appointees. So, they didn’t want them to come out against them.
But, Gura suspected there was another reason: That they might be afraid of winning. And if they won, government would be disbarred from taking all the guns away. And the most successful fundraising strategy the NRA has employed over the last 30, 40 years is to tell gun owners, ‘you have to contribute now because your gun rights are slipping away. The government is coming to take your guns. You better help us fight them.’
Gura suspected that the NRA was afraid of losing that major fundraising appeal. And indeed, there’s many ways in which the NRA seems not to really acknowledge the Heller case and still seems to tell gun owners, ‘Obama’s coming to get your guns,’ even though the Supreme Court has said, ‘we won’t let him.’
GWorks [00:10:49:25] What of the effort to regulate guns as “inherently dangerous,” as a “defective product”?
AW [00:10:53:25] There was a move a few years back, maybe in the mid-1990s, a move by gun control organizations to get rid of guns through the back channel. And the back channel was, ‘Well. We can’t get any laws passed that restrict gun ownership, really. So, what we’re going to do is we’re going to go to court and say that guns are defective products, like a Ford Pinto that explodes when it gets into a car accident, kills all its passengers.’ And, if it’s a defective product, the manufacturers will have to owe a lot of money to victims of gun violence. So much money, because the injuries are so devastating, that they would be basically forced out of business. And no one would be able to sell guns in America without a huge liability risk.
These cases didn’t go very far. Number One: Because, as courts frequently ruled, it is hard to say a gun is a defective product. It does exactly what it is supposed to do, which is to fire a projectile at a super-high speed to injure or kill someone or something, if that thing is a danger to the owner of the gun. In the same way a knife is not a defective product even though 2000 people every year are killed by knives. They’re not defective because they’re doing exactly what the manufacturer intended, which was to provide a sharp blade.
So, these didn’t go very far in court. And the NRA was strong enough to get finally a Federal law passed that banned these lawsuits and said as a matter of Federal law guns are not defective products simply because they fire a projectile.
Obviously, you can have a defectively manufactured gun and there’ll be liability for such a thing, if it’s indeed manufactured in a defective way. But not for a gun that’s manufactured appropriately but someone is just unhappy with the result.
I think one of the bad parts of this move was that, I don’t think it was really well thought out at the time...because what it...all it did was convince the gun owners that the gun control people really do just want to get rid of the guns any way, shape or form and will stop at nothing to do so. So, it only strengthened the gun rights movement rather than diminished its power. So, I think it was one of those things that…like a defective product, back-fired on the gun control...and their credibility in the gun debate.
—End of Part Five—
Part Six: Conclusions
If I thought of how I should interpret the Second Amendment
the way I think other amendments should be interpreted,
I increasingly came to realize that I did support an individual right to bear arms.
GOVERNINGWorks (GW) [00:00:31:15] What surprised you most in your research?
Adam Winkler (AW) [00:00:35:15] Well...there were...I found so many surprises, from the Founding Fathers’s gun control to the NRA being a big gun control advocate before it stopped; from the KKK and the role of race in guns.
But, I’ll tell you, I think in some ways the most surprising things for me was my own personal development. I grew up in Los Angeles. I didn’t have any interest in guns when I was growing up. I was never allowed to play with guns or anything like that. And, I don’t consider myself a huge gun “nut,” so to speak.
But, what I found in doing my research was, I was forced to confront a lot of the issues I had avoided thinking about the Second Amendment. What did it really mean? When I looked back at the history, how did I make the most sense of it? If I thought of how I should interpret the Second Amendment the way I think other amendments should be interpreted, I increasingly came to realize that I did support an individual right to bear arms. That I thought that was the best reading of the Second Amendment. But, at the same time, I didn’t think...and I think the history shows...that you can still have gun control and the right to bear arms.
So, for me, that was the most fascinating discovery—that maybe both sides in the debate are wrong; that maybe some of my own personal development shows that I have a commitment to a theory of interpretation that includes the Second Amendment and doesn’t dismiss it out of hand.
GWorks [00:01:52:10] What does the Second Amendment say about who we are—who we are—how we believe in a Constitution? What we believe about governance?
AW [00:01:58:10] I think the Second Amendment is a sign that the Framers of the Constitution ultimately trusted We the People with our rights and our liberties and didn’t really trust government to protect them. I think so often today, especially among my friends on the Left, the idea is that, ‘Well, we can’t really trust people, we can trust the government.’ But, I think that fundamentally, the Second Amendment was part of a series of constitutional provisions that said, ‘you know what, we trust We the People.’ And that government should be able to work for us in the way that We the People want it to work. But, it should not work against us and take away our rights.
And so, I think ultimately, at the end of the day, the Second Amendment—just like the First Amendment, just like the Fourth Amendment or the Third Amendment or the Fifth Amendment—all of those amendments are really fundamentally about a trust in We the People.
GWorks [00:02:51:06] Thank you, Professor Winkler.
AW [00:02:53:06] Thank you very much for having me.
—End of GWorks Interviews: Adam Winkler—
GOVERNINGWorks conducted this interview on Wednesday 31 August 2011. GWorks produced and edited this video and its transcript.
GWorks would like to thank Professor Adam Winkler for his generous participation in GWorks Interviews and Professor Winkler and W.W. Norton, Inc. for providing a Reviewer Copy of Gunfight: The Battle Over the Right to Bear Arms in America before its publication and this interview.
GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.
1 John Ashcroft, Letter to Mr. James Jay Baker (17 May 2001). “While I cannot comment on any pending litigation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.”
2 A technical issue affected audio recording for several seconds and forced a minor excision of video and audio as Professor Winkler discussed the legal understanding of gun control relating to the “recreational use” of guns and “self-defense.”
3 Second Amendment. Please note: The Constitution includes a comma between “Arms” and “shall.”
Transcriptions of citations to the United States Constitution use the United States Constitution as published by the Legal Information Institute at the Cornell University Law School. This includes a link to the CRS Annotated Constitution, an invaluable publication of the Congressional Research Service. For punctuation and capitalization, GWorks uses the Pocket Edition of The Constitution of the United States and the Declaration of Independence as published by the Government Printing Office.
4 The First Amendment reads in full,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
5 The Fourth Amendment reads in full,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
6 District of Columbia v. Heller, 554 U.S. __ (2008) (slip op., at 54–55). Justice Scalia writes:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
7 Brown v. Board of Education, 347 U.S. 483 (1954).
8 See First Amendment supra at Note 3.
9 See Fourteenth Amendment, Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” [Emphasis added.] See also The Slaughter-House Cases, 83 U.S. 36, 77–78 (1873):
“Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”
10 See Fourteenth Amendment, Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of live, liberty, or property, without due process of law.” [Emphasis added.]
11 Brief of Constitutional Law Professors as Amici Curiae in Support of Petitioners.
12 See Fourteenth Amendment, Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of live, liberty, or property, without due process of law.” [Emphasis added.]
13 See Fourteenth Amendment, Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of live, liberty, or property, without due process of law.” [Emphasis added.]
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