Are they coming for our gun laws?
UCLA Law Professor Adam Winkler went straight from New York University School of Law to the defense team of Michael Jackson and then that of OJ Simpson. But even this high-profile litigation couldn’t keep him from his calling to study constitutional law—a field where he has subsequently won acclaim as an expert on the Second Amendment. His most recent book Gunfight: The Battle Over the Right to Bear Arms in America tells the story of the pivotal 2008 Heller case and its complex cast of gun rights and gun control advocates. Winkler has walked a fine line as a scholar amid a contentious debate, not caving to passionate advocates on either side. It’s an accomplishment that many—including Berkeley Law’s Frank Zimring—say serves his readers and the subject. Winkler lectured at Berkeley Law this week and spoke with the Berkeley Human Rights Q&A about the rapidly shifting political climate—everything from changing gun laws to unbridled executive powers to the importance of protest.
Q. Did guns or the constitution or both figure prominently in your childhood?
A. Neither did. I grew up on the West side of Los Angeles in a liberal Hollywood family where we were not even allowed to have squirt guns.
Q. You ended up on the Michael Jackson and OJ Simpson defense teams practically from the get-go.
A. We represented Michael Jackson in that first civil suit against him for alleged molestation of a child. It was a really interesting case to be involved with, mostly because it was happening at a time when the news media was rapidly changing. It was the time of the birth of tabloid television when Hard Copy and Inside Edition—the television programs that spawned TMZ and the gossip and tabloid culture we know today. I would go home after a day of working on one of those cases and watch all of those tabloid television shows and learn things about my case that I didn’t know from the inside.
There’s one key thing that both sides tend to forget: the permanence of guns in America. I think too often both sides assume there is a possibility that we can get rid of all of the civilian guns in America. The kinds of laws that promote disarmament really don’t work in a country that has 300 million guns and counting.
Q. But you turned instead to the thrills of academia and the Second Amendment?
A. Constitutional law was one of those issues that really got me excited about the law and motivated me to become a law professor. My scholarship in the first 10 years focused on a very narrow issue that had little public interest at the time: Whether corporations could be limited in how they spend money [to influence] the political process. In 2008, that issue was a dead issue. I was sick of going to conferences and finding no one to talk to about it. I needed to find a hot topic that had some good debate around it. The Second Amendment lured me in. Then two years later, after I committed myself to the Second Amendment and set aside that research…suddenly it becomes one of the biggest issues in America. It shows you how good my timing is.
Q. What is the future of the Second Amendment?
A. We have all this debate about the meaning of the Second Amendment, but in the meantime almost every state has a constitutional guarantee for the right to bear arms. You have over 150 years of state court cases on the constitutionality of control—not under the Second Amendment. You want to know the future of the Second Amendment? Let’s look at these state cases. The right to bear arms is already judicially respected in the states. Even when courts called the issue a fundamental right, a right of great importance, at the same time they generally upheld the vast majority of gun control laws. That’s an interesting balance where you could have gun rights and gun regulation at the same time. They don’t have to be incompatible. That inspired me to think about the Second Amendment more broadly and inspired my research into my book, Gunfight.
Q. What are the big takeaways from your book Gunfight?
A. The biggest theme that I explore in Gunfight is the way we historically balance gun rights with gun control. I take the 2008 District of Columbia against Heller case that held for the first time that the Second Amendment unambiguously protected the right to bear arms when the court struck down a ban in Washington, DC, on handguns. I used my book to tell the story about that case—a story of civil rights litigation that was modeled after Brown v. Board of Education. I used that fascinating story as a jumping off point to look at the historical balance between gun rights and gun control. As much as we think about the Second Amendment as essential to the American identity, I argue that gun control is just as much a part of the story of America.
There’s a good chance the Trump Administration will pass the NRA’s number one agenda item: national reciprocity. This is the idea that someone with gun in State A can travel to State B and still carry their gun.
Q. What don’t gun control advocates understand about gun rights advocates?
A. There’s one key thing that both sides tend to forget: the permanence of guns in America. I think too often both sides assume there is a possibility that we can get rid of all of the civilian guns in America. The kinds of laws that promote disarmament really don’t work in a country that has 300 million guns and counting. One thing that the Heller case made clear is that [the government] can’t take the guns—even if they could legally, let’s face it, they couldn’t do it pragmatically. We tried to outlaw drugs in this country. It didn’t work. We tried to ban alcohol. It didn’t work. Trying to ban easily concealable things that people feel passionately about is destined to be a mistake.
Q. But can’t everyone agree that we need less gun violence?
A. That is the vexing question. I think there are things we can do to reduce criminal violence with guns. We should take ideas from gun control advocates and gun rights advocates. We should have universal background checks. It’s a simple idea that the NRA supported for many years. We should make it harder for criminals to get their hands on guns. I also think we should take ideas from the gun rights community. They say that we don’t need new laws, but better enforcement of existing laws. We should take the NRA up on that. We need to shut down the pipeline by which guns are transferred across state lines and brought to black market. Frankly, the NRA and allies have made it difficult to enforce those laws by handcuffing the Bureau of Alcohol, Tobacco, and Firearms by reducing its funding and by refusing to confirm the head of the Bureau. If they can’t do their jobs, we’re not going to effectively stop gun trafficking.
Q. What’s going to happen with gun laws under President Trump and the Republican Congress?
A. I think we’re going to see a big change in gun laws under the Trump Administration. We’re going to see more liberalization of gun laws—gun laws made more permissive and not restrictive. There’s a good chance the Trump Administration will pass the NRA’s number one agenda item: national reciprocity. This is the idea that someone with gun in State A can travel to State B and still carry their gun. Some iterations would allow a Utah concealed permit holder to carry their gun in California, even if that person was a resident of California. Utah doesn’t always require you to be a resident in their state to carry a concealed weapon in their state. Then we will have a situation where cities like LA or Berkeley cannot control who has guns on their street. The state of Utah will control them.
Q. What about constitutional rights and, specifically, executive powers, more generally?
A. When you lose [Berkeley Law Professor] John Yoo [see February 7 New York Times op-ed] on executive power, you know you’ve gone too far. John Yoo is one of the most aggressive interpreters of executive power in America. He thought [the power] was so broad it could justify things like torture, even though it was clearly against the law to engage in torture.
Q. How do we keep this power in check? What’s our best defense?
A. There’s two ways in which Trump can be checked and one way he will not be checked. It’s seems clear that Republicans in Congress are not going to check him. Although we are taught in school about the separation of powers and how Congress will check the unbridled powers of the executive branch, the truth is we have separation of parties and not separation of powers. Where will checking come from? We’ll see it from the courts. The courts aren’t going to stand idly by while Donald Trump runs roughshod over the constitution. Second, it’s so important that we have civil society that will actively organize. We have already seen that as bad as January 20 was in the minds of so many, January 21 was also a day that brought much hope—when you saw the biggest protests in American history. I do think that political activism by ordinary citizens can have an effect.
Q. Like on climate change, California seems to be out front on gun research.
A. Absolutely. California will continue to play a major role in gun violence studies. Traditionally the federal government has stayed away from funding gun violence research for fear it is too political. We want to have better knowledge of guns and only when we have better knowledge can we figure out which kinds of gun laws work and which kinds of gun laws don’t work.
Q. Is the gun debate at a perpetual impasse?
A. This gun debate will continue, obviously, for a while. One thing I might look for in the future is increasing variation and difference among the states. With the absence of federal regulation, you’re going to have different states moving in different directions. We’ve already seen that to a certain extent where a bunch of states have made their laws permissive for guns and a bunch of states, like California, have made their laws more restrictive. We’re getting into a world where we’re going to have that kind of polarization about guns on a state level. So depending on where you are in the nation, your gun rights are going to be very, very different than where they might be somewhere else.