UCLA Law Professor: ‘Assault Weapons Bans Don’t Reduce Crime’

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UCLA Law Prof. Adam Winkler. Check out his book “Gunfight,” it’s available on Amazon, used, for around $7.00.

Most of the prominent voices in the gun debate are partisan, extreme and agenda-driven. I guess I’m no exception to that rule. I’m radically pro-gun, and my agenda is rather transparent: I not only want readers to read the stories I write, but I also want them to become active and enthusiastic gun owners. See, in my writing I’m selling more than words and ideas, I’m selling a way of life.

UCLA Law Professor Adam Winkler is not like me, nor is he like the anti-gunners on the other side of the debate. Apart from examining the gun debate from a legal and historical perspective, Prof. Winkler has no agenda, no dog in the fight. I can appreciate that. And ever since he published his well-researched and well-written book, “Gunfight: The Battle over the Right to Bear Arms in America (W. W. Norton),” in 2011, I’ve been meaning to interview the professor.

Well, I finally got my chance! And below is our Q&A. But before we get to that, a little bit of background information on Prof. Winkler pulled from his professional bio:

Adam Winkler is a specialist in American constitutional law. His scholarship has been cited and quoted in landmark Supreme Court cases, including opinions on the Second Amendment and on corporate political speech rights. His writing has appeared in the New York Times, Wall Street Journal, Washington Post, Los Angeles Times, New Republic, The Atlantic, Slate, Scotusblog, and The Daily Beast. He is a frequent commentator about legal issues and has appeared on CNN, NBC Nightly News, the Newshour, ABC News, All Things Considered, Marketplace, and public radio stations across the country. He is the author of over two dozen scholarly articles; co-editor of the Encyclopedia of the American Constitution (2d Edition); and has written over 100 opinion pieces on legal issues… Read more

Q&A:

S.H. Blannelberry: To start off, let me ask the obvious: What are your personal thoughts on the Second Amendment? Is it: an individual right? A limited individual right that applies only in the context of militia service? Or a collective right that refers to a state government’s right to keep well-regulated militias?

Adam Winkler: As I explain in my book “Gunfight: The Battle over the Right to Bear Arms in America,” I believe the best understanding of the Second Amendment is that it guarantees an individual right to own guns. This right is not limited to militia service, although the founders were primarily concerned with militias when they wrote the Second Amendment. The right they enshrined, however, has long been understood to also affirm the individual’s right to have a firearm for personal protection. Heller was rightly decided.

S.H. Blannelberry: Forgive me for paraphrasing, but in a recent Washington Post article you basically argued that the NRA is doomed because of the changing demographics of the electorate. You wrote:

The core of the NRA’s support comes from white, rural and relatively less educated voters. This demographic is currently influential in politics but clearly on the wane. While the decline of white, rural, less educated Americans is generally well known, less often recognized is what this means for gun legislation.

I’ve been to the shows. I’ve seen the folks there and I don’t necessarily disagree with that assessment. And I agree it is a problem for the NRA. What’s interesting to me though is that there is an odd paradox here. That is to say, the NRA is never more profitable, successful then when the chips are down and the future of gun rights becomes palpably uncertain in the minds of gun owners. We saw that when Obama was elected, membership spiked to five million and contributions poured in.

Once again, heading into 2016, the NRA will use this back-against-the-wall, us-against-them, take-our-country-back narrative to help increase membership and generate money, which will only empower its pull in Washington. Not only that, studies have shown that a fervent and active minority often trumps a large, moderate and somewhat indifferent majority. The NRA wins many battles not because it has widespread public support for its initiatives, but because its grassroots base is consistently engaged on the issue. In short, NRA members show up at the polls, turn up at rallies, petition lawmakers, etc. So, in a way, couldn’t one argue that changing demographics is overrated so long as the NRA keeps it’s base active and engaged and it’s coffers full?

Adam Winkler: My oped didn’t mean to suggest that the NRA was doomed, although the headline writers (who, as a matter of course, do not allow authors any say over them) did use that terminology. The purpose of my piece was to argue that the changing demographics of the country pose a serious challenge to the NRA. The segments of the population that are growing dramatically tend to favor gun control over gun rights; much, though certainly not all, of the NRA’s support comes from segments of the population that are becoming relatively smaller. Also, please don’t mistake my assessment of the demographics to mean that only white, rural people without college degrees support the NRA. Of course that’s not true. Nor do I suggest that people who support the NRA aren’t smart. It’s just that polls consistently show that, among people with college degrees, more tend to support gun control. Maybe they are the ones who are wrong or less intelligent. Pointing out levels of educational attainment, as a matter of demographics, does not involve any judgment, pro or con, about the people who have more or less education. These challenges aren’t insurmountable. But the NRA will likely have to adapt.

S.H. Blannelberry: As significant as the NRA’s diversity problem is, there is another, perhaps, equally significant challenge it faces: former New York City mayor Michael Bloomberg. He has proven via his donation dollars and his organizations — Everytown for Gun Safety, Mayors Against Illegal Guns, Moms Demand Action, The Trace — that he is committed to fighting for tougher gun laws. Arguably, while the NRA is losing momentum with the electorate, it appears that some of these organizations are gaining momentum with the electorate.

What is your assessment of Bloomberg’s agenda and your thoughts on the emergence, popularity and ultimate impact his organizations are having on the gun debate?

Adam Winkler: Michael Bloomberg has been a key reason for the reemergence of the gun control movement. For the past 2 decades, the NRA has vastly outspent supporters of gun control on election campaigns and lobbying. The gun control organizations were weakened by poor funding and a lack of intense, single-issue voters. Over the past few elections, we’ve seen Bloomberg, Everytown for Gun Safety, and Gabrielle Gifford’s super PAC starting to level the election activity playing field. There’s more energy on the gun control side and, as a result, we’ve seen gun legislation passed in states like Colorado, Maryland, Connecticut, and elsewhere that wouldn’t have had any chance of passage a decade ago. Bloomberg’s agenda mistakenly includes bans on “assault weapons”; these firearms are rarely used in criminal activity and are not functionally different from many lawful rifles. It’s not just an error in policy; it’s also an error of strategy, as banning such a popular type of firearm is likely to spark a backlash.

S.H. Blannelberry: Let’s talk confiscation. Gun owners often get accused as being alarmists and radicals for suggesting that gun-control advocates ultimately want to confiscate lawfully owned firearms from citizens via a national buyback program (similar to what Australia did following Port Arthur). But isn’t there enough evidence out there to suggest that the threat is real? Recently, Hillary Clinton said it was “worth considering” and, more poignantly, certain states have already enacted laws, e.g. the NY SAFE Act, that (a) make one register certain firearms and (b) prevent that individual from transferring those firearms to friends or family, essentially drying up the supply of those guns.

What are your thoughts on the political feasibility of a confiscatory federal gun law? Is it just a fear porn narrative meant to gin up support or do you see it as an eventuality?

Adam Winkler: Gun control advocates and gun enthusiasts don’t agree on what counts as confiscatory. The gun rights proponents consider “assault weapons” bans and bans on high-capacity magazines to be confiscatory, while gun control advocates don’t. To them, a law is not confiscatory since gun owners still have lots of choices in the marketplace for effective self-defense firearms. To them, when a person can have dozens of guns of all different sizes and lethality already, no one is denied the right to bear arms by limits on assault weapons any more than by the clearly constitutional limits on machine guns. We aren’t likely to see these laws passed at the federal level regardless of who wins the 2016 election. I’d hope that would be because people would come to see the assault weapon ban as bad public policy, but more likely it will be just because gun control opponents dominate the House.

S.H. Blannelberry: One of the biggest questions facing the gun community is whether a ban on black rifles, aka “assault weapons,” is constitutional. To oversimplify the arguments, gun owners say that they are widely popular and commonly owned tools which are optimally suited for self-defense, particularly within the home, thus making them protected under the 2A. Meanwhile, gun control advocates argue that black rifles are dangerous and jeopardize public safety, highlighting several mass shootings where a semiautomatic rifle with a detachable magazine was used by the perpetrator.

Where do you stand on this debate? Would banning them be constitutional? Additionally, do you anticipate the Supreme Court taking up a case (Friedman) on this matter now or in the near future?

Adam Winkler: So far, courts have consistently upheld bans on “assault weapons” and high-capacity magazines against Second Amendment challenges. But the Supreme Court has yet to rule, and the justices have the final word. They haven’t seemed interested in taking another Second Amendment case recently, but perhaps the ban on assault weapons will be the Court’s next case. There is a stronger constitutional argument against assault weapons bans than against high-capacity magazine bans. Assault weapons bans don’t reduce crime. And because they don’t ban millions of other rifles that are equal in lethality, these laws have the kind of exceptions the justices dislike. High-capacity magazines, while certainly in common use, have a better fit. Most judges are likely to conclude that reducing the number of rounds available between reloads does tend to reduce the lethality of shootings.

***

Want to give a big thanks to Prof. Winkler for taking the time out of his busy schedule to answer some questions.  If you like what he had to say, or if you find his perspective insightful and challenging (in a good way), like I do, you can follow the professor on Twitter.

(Cover photo came courtesy of the documentary,”Assaulted: Civil Rights Under Fire“)

{ 14 comments… add one }
  • Michael Davis November 13, 2015, 11:51 pm

    I feel that all firearms makers and also firearm parts makers should have one policy. If the general public can’t own their product then the police and military should also not be able to purchase that product. No assault rifles to the public should mean no assault rifles to the police or military and the same should apply to ammo, magazines, bullet proof vests, body armor, etc. My fear is not being outgunned by the criminals, but rather by our ‘own’ government.

  • buurga November 13, 2015, 3:30 pm

    Assault rifles are not owned to reduce crime. They are owned to HANDLE crime.

  • Aardvark November 13, 2015, 3:29 pm

    This guy is a highly educated (indoctrinated) college professor, author, and expert witness on the second amendment, yet he can’t (or won’t) correlate the lack of college education of gun rights supporters (NRA members) with the fact that many gun owners are from smaller communities or rural areas where higher education may not be as readily available. Living in a large metro area surrounded by junior colleges and universities, as well as liberal politicians promoting welfare benefits, allows much more opportunity for people to attend college. Larger metro areas also attract more anti-gun liberal voters as well. The entire west coast is a perfect example: The large metro areas (LA, San Francisco, Eugene, Portland, Seattle) are all extremely liberal, yet the rural areas such as much of Northern California, Eastern Oregon and Eastern Washington, are very conservative (in general). People in these rural settings may not have a college degree, but it is not a sign of ignorance. The ignorance is apparent in the liberals that push for gun control however, never looking at the facts of crime and mass shootings, but instead just chanting the liberal politicians Marxist slogans.

  • Andrew N. November 13, 2015, 1:48 pm

    It takes less than one second for a well-practiced individual to change a magazine. How many people are fast enough to “rush” the shooter in less than one second? I guess that guy on the TV show “Flash” could do it, but that’s about it. And, like the real benefits from large capacity magazine bans, each example is fiction. There is no “Flash”, and there is no benefit to large capacity magazine bans.

  • pete November 13, 2015, 11:50 am

    The fallacy of the ‘bans don’t work’ argument is of course that the bans are never inclusive enough nor allowed to last long enough to HAVE an effect. Duh! They obviously would work if done differently. Now much harder to implement due to the country being awash in hi-cap mags and assault-style weapons (the whole point of the euphemism campaign of rebranding them ‘modern sporting rifles’ btw). Our long primitive obsession with insane firepower continues (’cause it’s fun and we’re not adult enough to see the other side – the need for other’s rights to life, liberty, and pursuit of happiness being at least just as important as ours). We’re in the infant stage similarly with drones right now – something that is legal and physically possible but maybe not such a good idea without more regulation than currently in place.

    • DC November 13, 2015, 1:06 pm

      The “fallacy” in your statement is that you are not talking about bans, which don’t work, you are talking about confiscation. Which, doesn’t really work either because the only people left with guns are the criminals and the general populace is at their mercy. See Australia stats. Pretty straight forward. But then, you are probably more concerned with the rights of criminals (others) than with law abiding citizens. And speaking of euphemisms, the “assault-style weapons” euphemism was coined by anti-gunners to create their own cute little narrative. Duh! Please go troll somewhere else.

    • Aardvark November 13, 2015, 3:48 pm

      By “re-branding”, you mean like “Global Warming” to “Climate Change”?
      If you had done some research you would have found that AR stands for ArmaLite Rifle, named after the company that developed it. It does NOT stand for “assault rifle” like the socialist politicians try to describe it. And if you were being honest in your argument, you would admit that even though American gun ownership is at the highest levels ever, the violent crime rate continues to decline. You would also admit that most of the “mass shootings” in America happen in the inner cities by gang members, not schools by some bullied psycho. They just get all the attention because it is fuel for the socialists anti-gun agenda. You would also admit that most of the mass shooters that are so widely publicized were taking prescribed psychotropic drugs and had no father at home. One other little tid-bit: There are about 11 times as many deaths from mistakes at hospitals each year than people that are killed by guns. So where is the call to ban hospitals? After all, these hospitals are so negligent that they are killing tens of thousands of people.

  • David November 13, 2015, 10:31 am

    Interesting that even Prof. Winkler seems to think the purpose of a magazine is crime, instead of self-defense. Given the rise of the home invasion technique, and the fact that it is normally multiple intruders, shouldn’t the defensive use of these magazines by citizens trump the control of the nearly non-existent pshcyo shooters who don’t obey the law anyway?

    Those magazines already exist, the nut-jobs and criminals will find and steal them in burglaries if not just buy them outright. Why shouldn’t I be permitted to have them to protect my family from those very same guys?

  • Kalashnikov Dude November 8, 2015, 5:48 pm

    Yup.

  • Tom Horn November 5, 2015, 9:30 pm

    I am afraid the professor is right about the changing demographics of the USA, and how it will affect our 2nd Amendment Rights. As more illegal aliens are given amnesty, we are diluting the U.S. population with folks who have no understanding of our 2nd Amendment Rights, our history, and it’s importance and significance to our freedoms. Whereas, most Americans are having less than two children (and not replacing themselves), the new immigrants are still having many children, and will soon outnumber those with a basic understanding of our 2nd Amendment. These folks will be sheeple for those (like Bloomberg, Clinton, Obama) with an agenda to strip our ability to own firearms, so as to have TOTAL, unfettered control over the American population.

    By the way, a gun ban IS a confiscation. Feces, by any other name, is still a pile of Sh*t!

  • DRAINO November 5, 2015, 10:32 am

    “….shall not be infringed”, and guns don’t murder people…crazy people murder people. Once everyone realizes those 2 things….the world will be a better place. And everyone has an agenda……some just aren’t as obvious.

  • JR November 4, 2015, 3:08 pm

    “High-capacity magazines, while certainly in common use, have a better fit. Most judges are likely to conclude that reducing the number of rounds available between reloads does tend to reduce the lethality of shootings.”

    Absolute tosh, any way you look at it.
    1) Standard capacity magazines are not “high-capacity”.
    2) Actual high-capacity magazines reduce the lethality of shootings because they are jammomatics, as seen in multiple mass murders, enabling the murderer to be taken down.

  • Mark N. November 4, 2015, 1:07 am

    If he has no agenda, why have I seen his name on a number of declarations filed in court cases as an expert hired by gun banners? In particular, he has filed declarations in the “may issue” “shall issue” debate in California basically saying that “more guns equals more gun crime,” and that therefore police chiefs and sheriffs should have discretion to deny concealed weapons permits.

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