Adam Winkler

  • April 7, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Adam Winkler, ACS Board Member and Professor of Law, UCLA School of Law

    One might think that the Second Amendment has never been more important to constitutional law. In the past decade, the Supreme Court for the first time held unambiguously that the Second Amendment guaranteed an individual’s right to have guns and we have seen hundreds of Second Amendment cases arise in the lower federal courts. The provision, which was for decades legally moribund, has been brought to life. That is why it may be especially surprising to realize that the Second Amendment is, in fact, becoming increasingly irrelevant. And the reasons why tell us something about the nature of constitutional law and the relative importance of political mobilization as compared to legal mobilizations.

    Of course, the Second Amendment is a potent tool of political rhetoric; elected officials will continue to invoke it to justify permissive gun laws. In that sense, the Second Amendment is not irrelevant as a matter of politics. Yet, the story is much different if we look at the Second Amendment as a matter of constitutional law. One of the central purposes of a constitutional provision is to shape the law of the nation, separating out valid laws from invalid ones. Today, however, the Second Amendment already has little legal impact – and it is likely to become even less impactful over the next decade.

    Consider perhaps the most important, cutting-edge Second Amendment question currently pending in the federal courts: discretionary permitting for concealed carry. This is an important doctrinal question, but one with a limited impact. Since the mid-1980s, a wave of reforms has swept the nation and now less than 10 states have discretionary permitting; the vast majority have nondiscretionary permitting and many states are moving to unrestricted carry, in which no permit is required. Even if the courts were to hold discretionary permitting laws to violate the Second Amendment, only a handful of states would be affected.

    And the impact looks likely to get even smaller over time. The political Second Amendment is leading towards reforms that would effectively end discretionary permitting. A proposed “national reciprocity” law, which is the NRA’s highest legislative priority and likely to be considered by Congress soon, could make it lawful for a resident of a discretionary permitting state to obtain a permit to carry from a permissive state like Utah, which does not require residency, and carry his or her gun at home. If that law passes, the constitutional debate over discretionary permitting becomes mostly meaningless. Whatever the courts say about discretionary permitting will not have much, if any, impact on the law on the ground.

    At least for the foreseeable future, we are likely to continue to see the political Second Amendment outpacing the legal Second Amendment on a host of issues. For advocates of gun control, this is a troubling development. They are winning in the courts, as nearly all gun control laws have been upheld under the Second Amendment. The opponents of gun control are nonetheless winning in the state and federal legislatures. Those political victories are proving to be far more important than judicial interpretations of the Second Amendment. That legislative success is a function of political mobilization – and highlights to gun control advocates how they must direct their activities. Winning broader political support for gun control will likely have a more profound impact on the law than any Supreme Court decision on the Second Amendment.

  • March 21, 2017
    Guest Post
    by Adam Winkler, Professor of Law, UCLA School of Law
    Tuesday’s confirmation hearing on the nomination of Judge Neil Gorsuch to the Supreme Court went exactly according to script. Against a background of Republican praise and Democratic skepticism, Gorsuch showed himself to be smart and articulate without saying much of substance on any of the major issues of the day. The nominee parried nearly every question by invoking the law’s first principles: A judge should apply the law, not make it. No man, not even the President, is above the law. Justice requires adherence to precedent, open-minded judges, and equal treatment of rich and poor alike. Anyone seeking insight on how Gorsuch would rule in particular controversies could only come away disappointed from the latest instance of the confirmation process’s “kabuki theatre.” 

    Gorsuch is nothing if not polished. Handsome, charming and easy with a smile, Gorsuch joked with committee members on both sides of the aisle. He showed the calm intelligence and detailed knowledge of doctrine for which he is known. He came prepared, and when asked about his tendency to rule for big business and against the “little guy,” he offered a list of cases in which he ruled in favor of the latter. Gorsuch even threw in some one-liners, insisting in response to a question about his independence that a judge wields “a gavel, not a rubber stamp.” But, by the end of the day, the picture of what Gorsuch would be like as a justice had not come into any sharper focus.

    Yet maybe that is about all we should expect from Supreme Court confirmation hearings. Most of the senators asked questions that seemed poorly designed to draw out a thoughtful and revealing response from the nominee. The day began with Sen. Grassley asking Gorsuch if he could rule against Trump, prompting the nominee to call it a “softball.” For a skilled lawyer like Gorsuch, they were just about all softballs. Even when senators had some difficult questions, they often seemed more interested in expressing their disagreement with Gorsuch’s rulings than soliciting further explanation from him. Others were content to refer to the nominee’s strong bladder and his favorite fishing stream. Meanwhile, the nominee only revealed what he wanted and claimed over and over again his adherence, over all, to those first principles of the law. 
  • September 16, 2016
    Guest Post

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

    *This post is part of the ACSblog symposium: Constitution Day 2016

    Happy Constitutions Day!

    No, that is not a typo. I know that tomorrow, September 17, is officially “Constitution Day,” marking the date in 1787 when the Constitution was submitted to the states for ratification. And I know there is only one document called the Constitution of the United States, not multiple different ones. Yet given how much the Constitution has changed, how different our perceptions of its requirements and the many other constitutions in American lives, perhaps we should nonetheless refer to it as “Constitutions Day.”

    Of course the original version of the Constitution is of vital importance to American history, culture and law. We must remember, however, that the states found that document wanting because it lacked a clear specification of individual rights. Several states conditioned their ratification of the Constitution on the adoption of significant amendments. Their objections to the Constitution led to the addition of the Bill of Rights in 1791. Four years after the first Constitution was proposed, we end up with a new one, revised and improved.

    Since then, we have added another 17 amendments to the Constitution. Some, like the Reconstruction Amendments (13th, 14th, & 15th) are of tremendous significance, radically reshaping the Constitution once again. The effect on American life and government from these amendments, which overhauled the relationship between the federal government and the states, was profound. Other amendments, like the 27th, which deals with congressional salaries, are relatively minor. Yet all of them have one thing in common: they each created a new Constitution. The Constitution today is different than the Constitution Americans lived with 50 years ago, which is different from the one 50 years before that.

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.

  • September 16, 2015
    Guest Post

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

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    On this Constitution Day, we would do well to focus on politics. While it is true that the Constitution is “the supreme Law of the Land” (Article IV, section 2) and that there are important differences between law and politics, time has come for those who love the Constitution to turn to politics – and not just any politics but politics of the basest kind: partisan, electoral politics. For the future of the Constitution rests in the hands of the men and women who are running to be elected “President of the United States” (Article II, section 1).

    Candidates are vying for the voters’ support by endorsing major policy initiatives, such as Bush’s tax plan or Clinton’s voting reforms. Regardless who wins, these legislative efforts require the support of both the House and the Senate (Article I, section 7), which aren’t likely to go along easily. The House is expected to stay Republican, inhibiting anything a Democratic president could achieve. The Senate is expected to shift Democrat, limiting any GOP president’s legislative agenda.

    One place where the president will likely have a strong impact is the future of the Constitution. While Supreme Court nominations require “the Advice and Consent of the Senate” (Article II, section 2), in practice few nominees are rejected absent a glaring lack of qualifications or an obviously extreme judicial philosophy. And the next president is almost certain to select at least one and possibly four Supreme Court Justices. When the next president is sworn in on January 20, 2017 (20th Amendment, section 1), three justices will be over eighty (Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy) and one nearing that age (Breyer).