Berkeley Human Rights Q&A #11: Adam Winkler

Adam Winkler 2Are 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.




Berkeley Human Rights Q&A #8

California takes lead on gun violence research, thanks to this man

Dr. Garen Wintemute

Dr. Garen Wintemute—an emergency medicine doctor and one of the nation’s leading firearm violence researchers—has reason to be optimistic. After weathering the federal government’s decades-long divestment from gun research (by simply funding it himself with more than a million dollars of his own money), he will direct the new state-funded University of California Firearm Violence Research Center from his UC Davis campus. And he’s got at least $5 million to do it.  Wintemute and his colleagues have led a public health approach to gun violence, which results in 30,000 deaths and 75,000 injuries a year. He studies the epidemiology of that violence—conducting rigorous research to combat myths, illuminate truths, and feed policy recommendations. He comes to campus this week as the first speaker in Berkeley’s Gun Violence in America series.

Watch the livestream on Wed. 9/21 at 5 pm.

Q. What was your relationship to guns growing up?

A. There were guns in the house—it was the 1950s and 1960s. The thing to do in my neighborhood was to play army. All the kids had toy guns, and we would play with them for seemingly hours on end. I actually was offered a job by the YMCA teaching riflery full time—at least as summer employment—but chose another job instead. And to fast forward that into adulthood, I enjoy shooting. I used to be pretty good at it, just haven’t done it in a long time.

You have to keep pushing, because people are dying, but it’s unrealistic to expect that society is going to turn on a dime…

Q: Where did your commitment to firearm research come from?

A: I was working as an emergency medical physician in the 1980s and became very interested in preventing the injuries that brought people through the doors of the emergency department. On top of that, early on I spent five months in Cambodia. This was right after Pol Pot’s time, in an area where combat still went on. We would hear landmines go off and wonder if we would see that person or not.

Q: What are some of your more surprising research findings?

A: I work hard at maintaining equipoise and so I am not often surprised. The trick is to go in without prior expectations, if possible. More than surprise, it is the sheer joy of discovery—of crunching some numbers or interviewing some people and realizing in one way or another: here’s important new knowledge and right now I am in that rare and very privileged position to be the person who knows about it and can bring it to the world and relieve suffering as a result.

They were concerned that research might be substrate for changing firearm policy in ways that harmed their interests. So they arrived at the entirely logical conclusion that if the research was threatening, the thing to do was to prevent the research from being done in the first place.

Q: That must be really gratifying, but isn’t it incredibly frustrating when the response to some of this nuanced research is met with simplistic arguments?

A. Yes, there is frustration, but the important thing is to let the frustration go. This is a controversial issue, and there are people who will react negatively without bothering to see what the research is actually about. Frustration comes from impatience and it’s really important to be patient. You have to keep pushing, because people are dying, but it’s unrealistic to expect that society is going to turn on a dime on this issue.

Q: Do you think we’re close to any kind of tipping point for gun regulation?

A: Whether it’s regulation or something broader, I absolutely do. We’ve seen for the past four years now, a breadth and a depth of concern in society about firearm violence that simply was not there before. Although they are relatively rare events, public mass shootings have a great deal to do with that change in attitude. There is a reason for this: with ordinary homicide, much of any society can tell a story that writes them out of the risk picture, if you will. They can say, “homicide happens to people who don’t look like me, who don’t have my demographics.” Suicide, which is much more common, we just don’t really talk about much at all, so it’s easy to ignore. But public mass shootings can’t be put at a distance. “They don’t happen in places I know not to go to. They happen in precisely the kinds of places that I do go. They don’t happen to people I can distance myself from either socially or demographically. They happen to people just like me.” So, for the first time, I think, everybody recognizes that the risk extends to them. And frankly we greatly overestimate on average our risk of being in a mass shooting, but the critical difference is that everyone understands that this is not somebody else’s problem; it’s their problem.

Q: You’ve said that public perceptions about mass shootings are also one of the biggest myths surrounding guns.

A. Public mass shootings account for less than one percent of deaths from firearm violence in the United States. But they are one of the things driving the current public perception about firearm violence. Firearm violence is in the public mind on a day-to-day basis now in a way that it just hasn’t been. Some of the reactions are beneficial. There is clearly an interest in doing more about preventing violence. But other reactions are arguably detrimental. Every time there is a mass shooting, sales in firearms spike. There is solid evidence that having easy access to firearms increases one’s risk of death or serious injury from firearms. Firearms are durable products, and every time sales spike, there’s an influx of these durable products into society. We are going to be living with the results of that influx for decades.

Not doing research on firearm violence is like not doing research on motor vehicle injuries and, although the scales are different, not doing research on cancer or on heart disease.

Q. What are some of the big myths you see in terms of public perceptions about guns?

A. There are so many. One is that rates of firearm violence are decreasing. They are not. If you combine suicide and homicide at the national level they haven’t budged an iota in the last 15 years—although they may have ticked up in 2015 and 2016. We just don’t have the data yet. Interestingly, during that same period of time, when there has been no change overall nationwide, the rate of fatal firearm violence has gone down here in California by more than 20 percent. We are going to be investigating the very interesting question of why that is.

Q. Is there shoddy research out there?

A. There is. People have accepted data uncritically, or not thought carefully through the assumptions that underlie their work. Or they have leapt to inappropriate conclusions. A number of us have had to spend time—sometimes privately as reviewers and sometimes publicly as commenters and editorialists—calling out junk science. This really makes me angry on several grounds. I would rather be doing good science than critiquing bad science. When I read these papers, I think these people are doing unsophisticated, careless, slipshod work. But to be honest, the thing that makes me angriest comes from not my background as a scientist but my work as a clinician. Real people are dying. Real people are being disabled. To do crummy science is to show disrespect for those people. And to me that’s absolutely intolerable.

Q. Why and how did the Centers for Disease Control defund research about guns?

A. In the late 1980s, rates of firearm violence started climbing rapidly again in the United States. We did something very laudable, something that we take pride in as a country when faced with a crisis. We mobilized. Money was becoming available for research. People were starting to do really solid research. Congress was interested in putting the results of that research into action. But that, from the point of view of some vested interests, was precisely the problem. They were concerned that research might be substrate for changing firearm policy in ways that harmed their interests. So they arrived at the entirely logical conclusion that if the research was threatening, the thing to do was to prevent the research from being done in the first place.

Q. Who spearheaded this effort in Congress?

A. Jay Dickey, from Arkansas, who described himself at the point person for the NRA, caused to be adopted into CDC’s budget language a provision that CDC’s funds could not be used to “advocate or promote gun control.” Nothing was actually said about research. But what Congress did was take from CDC’s budget an amount equal to the amount that it had been providing for research and give it back to CDC earmarked for another purpose….President Obama brought this up in January 2013 after Sandy Hook. Research, he said, is not advocacy. He directed CDC to do research. He asked Congress for $10 million to fund it. He is still asking. Mr. Dickey himself has had a change of heart and for several years has called for more research on firearm violence. He and Dr. Mark Rosenberg, who headed CDC’s injury prevention program in the 1990s, wrote a letter to the California Legislature strongly supporting the creation of the new research center.

Q. So you funded the research yourself.

A. Not doing research on firearm violence is like not doing research on motor vehicle injuries and, although the scales are different, not doing research on cancer or on heart disease. It’s absurd to think that we can deal effectively with a complex problem like this without understanding it. I came to the decision that I would keep this program running.

Q. But that’s all changing now in California. Will Governor Brown’s new commitment to researching gun violence make the state a leader, like we have been on climate change?

A. Yes, no question about it. …The existence of the center and the work that it will do will create a foundation of evidence that won’t exist anywhere else.

Q. Where will you start?

A. There’s absolutely no part of firearm violence about which we know enough. We’re going to start with the very basics. We are going to look in detail at the epidemiology of firearm violence in California. For some of that work we will use available data because the available data are good. The last time anybody did a solid, even cross sectional look at the epidemiology of firearm violence in California was 1987. I know because I did that study. We are also planning to do a large-scale survey to learn about the prevalence of firearm ownership, factors associated with firearm ownership, and the benefits that firearm owners attribute to firearm ownership. We will also be asking about firearm violence. What are the prevalence and intensity and consequences of exposure to it?

Q. How many more researchers will be involved?

A. Nationwide there are maybe a dozen or 15-ish people who have had this problem as their major focus for a long time. And this is a health problem that kills 30,000 people a year and is responsible for perhaps $200 billion in aggregate societal costs. And here are these 15 people. This is just wrong. There’s going to be a core group of four investigators here at UC Davis, and we have many collaborators here and at other institutions. And there will be one or two people as the nucleus of a team at each of the partner campuses. And we’ll build from there. Speaking of which, we are recruiting…

Q. How will the research you do become policy?

A. We’re in Sacramento, not in Davis, and not just because that’s where the hospital is. I work with the legislature and state agencies all the time. They are 10 minutes from where I am standing now. It’s absolutely possible to do research and talk with policymakers about the implications of that research and to work with them directly on the translational effort that moves research into effective policy. In California, it almost goes without saying that once the policy is adopted, it gets enforced and someone circles back to see if it’s doing what it’s supposed to do.

Q. Do you ever feel that if you could just prove one thing, it would change everything? Is there some Holy Grail out there on gun violence?

A. There is no Holy Grail, no final dispositive piece of truth that will make all this right. Truth is not a destination. Truth is a direction. We continue to learn. Good research is better than the research that comes before it and not as good as the research that follows. We build on each other’s efforts. It’s important to remember that we are doing science in the public interest. One of the reasons I like doing clinical work in the emergency department is that it reminds me of who I am working for.

Q. It must be so exciting to finally have resources to do something.

A. I can’t put into words how thrilling this is. Today, our little building was buzzing with people working on three or four different projects at the same time. I just stood in the center of the building listening and looking around and thinking: This is a dream come true.