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
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“)