Adam Winkler

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • May 5, 2014
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law; Author, Gunfight: The Battle Over the Right to Bear Arms in America

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Heller was right. The Constitution protects the right of individuals to have arms for personal protection. Even if you don’t believe this accurately describes the original meaning of the Second Amendment – the history of which has confounded many – you should support the result if you believe the Constitution protects fundamental, unenumerated rights. There’s a long commitment in American constitutionalism to unwritten rights, including the right to privacy and the right to marry. In identifying which unwritten rights are protected by the Constitution, the courts ask whether the right, as a matter of history and tradition, has been respected by the American people. Under the doctrine of substantive due process, if the right is “objectively, deeply in this Nation’s history and tradition” it will be protected. The right of individuals to have guns for personal protection, especially in the home, easily passes this test.

    The right of individuals to have a gun in the home for self-defense has long been respected by American law. Since the founding, no state has ever prohibited its residents from having a gun in the home. Although Washington, D.C. effectively banned guns in the home for self-defense and Chicago banned handguns (while allowing long guns), these idiosyncratic outliers only highlight the dominant, longstanding legal tradition of allowing individuals to own guns. In numerous due process cases, the Supreme Court has looked to the absence of laws prohibiting the relevant behavior as strong evidence of a deeply rooted right. In Roe v. Wade, the Court explained that abortions in early pregnancy were not barred under the common law. In Lawrence v. Texas, the Court recognized that laws singling out same-sex sodomy for criminal punishment, while allowing opposite-sex couples to engage in the same activity, were contrary to our legal traditions. In Washington v. Glucksberg, the Court denied substantive due process protection for the right to die by pointing to the long history and tradition of laws against suicide. There’s no history and tradition of laws preventing law-abiding people from having guns.

  • June 13, 2013
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.

    The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.

    Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula.  Section 5 might remain "on the books" but it would be essentially a dead-letter.

  • February 5, 2013
    Guest Post

    by Adam Winkler, professor of law at UCLA School of Law and author of Gunfight: The Battle over the Right to Bear Arms in America

    As Congress considers proposed reforms to the nation’s gun laws, opponents of reform have appropriately drawn attention to the Second Amendment. The Second Amendment protects the rights of individuals to have guns and lawmakers have an obligation to consider whether any law they pass is consistent with constitutional law. No member of Congress should vote for a bill that violates the Second Amendment.

    Where opponents have gone wrong is in constitutional analysis. They claim the Second Amendment would be infringed by the proposed reforms, which include universal background checks, limits on high-capacity magazines, and restrictions on assault weapons.

    Yet none of these laws are likely to be overturned by the Supreme Court as violation of the Second Amendment. That is the view expressed by over 50 distinguished constitutional law professors in this Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation. The signatories include Laurence Tribe, Richard Epstein, Eric Posner, Reva Siegel, Geoffrey Stone, Charles Fried, Walter Dellinger, Dawn Johnsen, Larry Lessig. I was one of a number of Second Amendment specialists who signed, including Sandy Levinson, Mark Tushnet, Joseph Blocher, Jamal Greene, Michael Dorf, Carlton Larson, and Lawrence Rosenthal.

  • January 30, 2013

    by Jeremy Leaming

    Sen. Chuck Grassley (R-Iowa) may believe the president has turned the Second Amendment on its head with a push for proposals to curb gun violence, but he’d do well to learn a bit more about the parameters of the amendment.

    A good place to start would be a succinct letter signed by some of the nation’s leading constitutional law scholars that notes the Supreme Court has acknowledged the “presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms that they may have ….”

    Grassley’s comments about the president’s call for new gun control measures came during today’s Senate Judiciary Committee hearing on gun violence. Grassley revealed his opposition to proposals to limit high-capacity ammunition magazines and suggested that violent video games are more responsible for mass shootings in the nation than easy access to military-style weapons.

    UCLA Law School Professor Adam Winkler and University of Chicago Law School Professor Geoffrey R. Stone crafted a statement on the constitutionality of certain measures to curb gun violence. As this blog has noted on more than one occasion the Second Amendment does not provide for an unlimited individual right to bear arms. The professors’ statement, signed by more than 45 law school professors, notes that as well. (Winkler is the adviser to the ACS UCLA law student chapter, and Stone is former chair of the ACS Board of Directors. Winkler is also author of the influential book, Gunfight: The Battle over the Right to Bear Arms in America.)

    Citing D.C. v. Heller, in which the high court found an individual right to own guns, the professors’ statement says in Heller Justice Antonin Scalia recognized that like other constitutional rights, “the Second Amendment is not absolute. The First Amendment, for example, provides that ‘Congress shall make no law … abridging the freedom of speech,’ but the Supreme Court has long and consistently held that some types of speech – for example, defamation, obscenity and threats – can be regulated; that some people – for example, public employees, members of the military, students and prisoners – are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.”

    The statement, available here, goes onto to argue that proposals like universal background checks, regulation of high-capacity ammunition magazines and military-style assault weapons are “clearly consistent with the Second Amendment.” The professors, add that they have “no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes on the core right identified in by the Court in Heller.”