Second Amendment

  • September 1, 2011
    The Battle over the Right to Bear Arms in America
    Adam Winkler

    By Adam Winkler, a professor at UCLA School of Law.

    I’ll never forget the scene outside the Supreme Court building the day of oral argument in District of Columbia v. Heller. Scores of reporters and camera crews were there to cover the hundreds of protestors who turned First Street into a lively theatre of debate over the meaning of the Second Amendment. A man with a bullhorn boomed, “More guns!” In response, gun rights supporters in the crowd hollered, “Less crime!” “More guns!” “Less crime!” A group of gun control proponents whispered among themselves and the next time the man with the bullhorn chanted “More guns” they yelled, “More crime!” As in the gun debate more generally, however, the gun controllers were easily drowned out by the more numerous and vocal gun rights advocates. 

    Although the language of the Second Amendment has confused generations of lawyers, the protestors in front of the famous marble steps of the Supreme Court knew exactly what it meant. To gun rights supporters, the amendment clearly guaranteed individuals the right to own guns and placed strict limits on gun control. To proponents of gun control, the amendment merely provided for state militias and had little relevance for ordinary gun laws. Although the two sides reached very different conclusions, they shared a common view of the right to bear arms. Both sides believed an individual right to have guns was fundamentally incompatible with gun control. We must choose one or the other.

    Gunfight: The Battle over the Right to Bear Arms in America shows that, contrary to the extremists on both sides, we’ve always had both a right to bear arms and gun control. The founding fathers who wrote the Second Amendment had gun laws that the modern gun lobby would never accept. Not only did they prohibit free blacks and slaves from owning guns to promote public safety, they also restricted the gun rights of political dissenters. They required ordinary citizens to buy military style firearms — an early version of an “individual mandate”—and ordered them to appear for mandatory “musters” where their guns would be inspected and registered on public rolls. To them, the Second Amendment was not a libertarian license. We the people were the militia, but that militia was required to be “well regulated.”

  • August 15, 2011

    by Nicole Flatow

    Justice Antonin Scalia may be the Supreme Court’s “ultimate originalist,” but when it comes to the Second Amendment, he has recently embraced a living Constitution, UCLA law professor Adam Winkler suggests in a column for The Atlantic adopted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America.

    In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”

    The National Rifle Association, founded as an organization to improve American soldiers’ marksmanship, was “at the forefront of legislative efforts to enact gun control” in the 1920s and 1930s, and only shifted to become a “lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens” in 1977, Winkler explains.

  • October 21, 2010
    Following a recent ACS panel discussion on the future of gun control regulation in the wake of landmark Supreme Court cases regarding Second Amendment rights, UCLA School of Law Professor Adam Winkler told ACSblog that those high court cases provided little guidance to lower federal courts on handling constitutional challenges to gun laws.

    Winkler, co-author of a recent ACS Issue Brief called "The Standardless Second Amendment," said that the vast majority of lower federal courts have upheld gun control regulation, but on divergent standards. Winkler said the lower federal courts are "generally confused about how to address the constitutional question" in cases involving gun control laws. As long as the lower court cases remain unsettled on what standard to apply to Second Amendment challenges to gun control laws, the more likely the Supreme Court will have to weigh in again on the matter.

    Winkler also noted his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America. "The story of America's so-called gun culture is that we've always tried to balance gun rights with reasonable efforts to protect public safety by regulating the most dangerous people or the most dangerous guns," Winkler said of the book, which is set to be published next year. Winkler's interview is below and the entire panel discussion is available here. You can also download it as a podcast here.

  • October 18, 2010
    The Supreme Court's landmark rulings on the Second Amendment provided little guidance to lower federal courts on how to interpret challenges to gun control regulations, authors of a new ACS Issue Brief maintain.

    In "The Standardless Second Amendment," Tina Mehr, an attorney fellow at the Los Angeles County District Attorney's Office, and Adam Winkler, a professor of law at UCLA School of Law, note, "Traditionally, the Supreme Court articulates a standard of review for lower courts to apply to laws burdening fundamental rights."

    But in D.C. v. Heller, where the Supreme Court found that owning a gun is an individual right protected by the Second Amendment, and then held that the right applies to the states in McDonald v. Chicago, the high court "declined to establish a clear standard or test for the Second Amendment," they write.

    Since Heller and McDonald, lower federal courts have dealt with more than 200 cases challenging gun control regulations, and while the courts methods for interpreting the laws have varied, most have been upheld as "public safety exceptions," that do not violate the Second Amendment, Mehr and Winkler write.

    But as the authors note, Justice Stephen Breyer's dissent in McDonald includes a prescient observation. Breyer predicted confusion among the federal courts, writing, "Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons?"

    See the authors' Issue Brief here. For more discussion on Second Amendment rights and gun control regulation, watch video of a recent ACS panel discussion here.

  • October 15, 2010

    Two recent Supreme Court cases that recognized an individual right under the Second Amendment have not had the revolutionary impact on gun rights that some envisioned, UCLA School of Law professor Adam Winkler said during an ACS panel discussion on gun regulation in the wake of District of Columbia v. Heller and McDonald v. City of Chicago.

    Some 200 federal court gun regulation decisions have come down since Heller and McDonald struck down gun bans in Washington, D.C. and Chicago, and not one has invalidated a law on the basis of the Second Amendment, Winkler said, although he noted that some settlements have resulted in changes to laws.

    "In many ways, Heller's bark was worse than its right," said Winkler, who coauthored a recent ACS Issue Brief on the Second Amendment.

    Moderator Jamal Greene, an associate professor at Columbia Law School, noted the history of the Second Amendment, which, until the 1980s, was understood as "implying a right to keep and bear arms in connection with the duties of a state militia. It was not understood to be an individual right or something that is justiciable as an individual right."

    Heller affirmed that there is an individual right to bear arms, Greene explained, but it did not announce a standard of review "or tell us very much about other gun laws that implicate rights."

    This was the challenge presented to the District of Columbia following Heller, explained Councilmember Mary Cheh, who represents Ward 3 on the D.C. Council, and is a professor at George Washington University School of Law.

    "What we did was adopt a series of regulations that probably are the strictest in the nation and might set us on this path of figuring out what's permissible and what's not permissible," Cheh explained.

    She said the key to passing new regulations was ensuring that written testimony, oral testimony or other evidence was available to justify the law in court.

    "Because we are the nation's capital, I think we are a special jurisdiction," Cheh said. "And I think we've done the best we can in terms of a legal challenge to insulate ourselves. Whether we prevail or not is going to be another question."

    Watch the full discussion below.