Adam Winkler, Professor of Constitutional Law at UCLA School of Law, wrote Gunfight. With an expert understanding of Constitutional law and an eye for telling narrative and historical detail, Professor Winkler explores both recent landmark Supreme Court cases that defined the meaning and applicability of the Second Amendment “right of the people to keep and bear Arms”—District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010)—and the long and complex history of guns ownership and regulation in the United States.

In looking at our history, and in a conclusion he describes as a personal surprise, Profesor Winkler argues that the right to own a gun does belong to the individual. But our history with guns is not one-sided. We have always owned guns and, Professor Winkler illustrates, we have always regulated their use.

Gunfight is a fascinating, informative and surprising look at the Second Amendment, a controversial constitutional provision the meaning of which until recently was unclear, and what it says about who we are and how governing works.

Professor Winkler graciously agreed to an interview. What follows is the video and transcript of the first part of that interview, in which Professor Winkler discusses the basics of Heller, the case that established that the Second Amendment creates an individual right “to keep and bear Arms.”

GWorks Interviews: Adam Winkler

[00:00:16:00] I’m Adam Winkler. I am a Professor of Law at UCLA School of Law here in Los Angeles and the author of Gunfight: The Battle Over the Right to Bear Arms in America.

Part One

Heller

[00:00:31:15] GOVERNINGWorks (GWorks)—Why did you write Gunfight?

[00:00:35:15] Adam Winkler (AW)—Well, I wrote this book for two reasons. One: At the heart of this book is a story of an amazing lawsuit...over...known as District of Columbia against Heller...a Supreme Court case. It was the very first time, remarkably, that the Supreme Court had occasion to clarify the meaning of the Second Amendment.

It had long been ambiguous what the meaning of the Second Amendment was. And, this was the first time that the Court was going to really make clear that the Second Amendment protected an individual right to bear arms. And, that story was a great story.

The litigation was brought by...not by the [National Rifle Association] NRA or any of the major gun rights organizations but by a trio of Libertarian lawyers led by a young lawyer named Alan Gura, a 30-something lawyer who had never taken a case to the Supreme Court, in fact had never even argued a case at the Court of Appeals before this case. And, the NRA fought him at every turn. So, here you have this young rookie lawyer, inspired by his philosophical leanings towards Libertarianism, promoting a view of the Second Amendment that you’d think the NRA would be eager to adopt. But, instead, they sought to scuttle this lawsuit at every turn. So, it had great drama to it, that story.

But, the second reason was that, in my research over guns, I found so many fascinating and surprising stories about the ways in which our efforts to balance gun rights with gun control have shaped profoundly our nation in so many unexpected ways, from the [Ku Klux Klan] K.K.K., which began as a gun control organization, to the Wild West, which had the most restrictive gun control laws in the nation, to the NRA itself, which sought to promote gun control laws that today that same organization seeks to invalidate.

[00:02:20:15] GWorks—What is District of Columbia v. Heller about?

[00:02:24:15] AW—So, District of Columbia against Heller, like I said, it was the first time the Supreme Court clarified what the meaning of the Second Amendment was and clarified that it protected an individual right to bear arms.

The case involved a lawsuit over a ban on hand guns in the District of Columbia. This ban on hand guns had been in effect since 1976. But, the NRA was not challenging it. It was a good law on the books. It wasn’t a terribly effective law. As many people know, Washington, DC in the 1980s, burdened especially by the Crack [Cocaine] epidemic, became the murder capital of the nation.

So, this law was in effect. And, in 2001, when President George [W.] Bush was elected, his Attorney General, John Ashcroft, sent a letter to the NRA,1 saying, ‘Hey, the Administration has changed the official position of the Executive Branch. We now interpret the Second Amendment to protect an individual right to bear arms, unrelated to Militia service.’ And, that really inspired this trio of Libertarian lawyers to bring a lawsuit against the District of Columbia which had the most onerous gun control law in the nation. So, they thought it would be a wise strategic choice to target that particular law.

[00:03:42:12] GWorks—Was the Bush Administration’s policy change stark? What inspired the change?

[00:03:46:12] AW—Well, the position was stark in this sense: So, for decades, the Federal courts had interpreted the Second Amendment to protect a right only associated with state Militia service and had very little relevance for ordinary gun control laws. And the Executive Branch, even under Reagan...Presidents [Ronald] Reagan and others, hadn’t really challenged that point of view...for pragmatic reasons. They hadn’t challenged the view because those gun control laws that were on the books were being used to put away criminals, especially in the War on Drugs. So, for Law-and-Order Presidents, even the conservative Presidents of the past, there was no need for them to articulate a new view of the Second Amendment—or, perhaps an old view of the Second Amendment.

But, the Bush Administration came in with a lot of strong support from the NRA. The NRA was the biggest outside, independent financier of the Bush Administration—sorry, the Bush election campaign of 2000 and obviously had a lot of support by the gun rights movement. So this was seen at the time just sort of an effort to suggest to the gun rights community that, ‘we are on your side.’

What happened, however, is that because of that position that they took, that position paper that the Attorney General John Ashcroft took, inspired drug dealers, gang bangers, anyone accused of a gun crime to bring challenges to their criminal conviction on the basis of the Second Amendment.

These Libertarians said, ‘Hey, we don’t want the next big Second Amendment case to go up to the Supreme Court to be, ‘United States against Crack Head.’ That’s not going to be a great vehicle for reinvigorating the Second Amendment. So, they went out a recruited, strategically, like the [National Association for the Advancement of Colored People] NAACP had done in the Civil Rights movement—really good plaintiffs to target a really egregious law in a way that might warrant the Justices’s sympathy rather than their anger.

[00:05:35:15] GWorks—What did the District of Columbia’s law do?

[00:05:39:15] AW—We often refer to it as a ban on hand guns. But, it was actually even more than that. It banned civilians from owning hand guns with certain exceptions for security personnel and what-not. But also heavily restricted long guns—rifles and shotguns. It said that if you owned a rifle or a shot gun, you had to keep it locked or disassembled. And, you were only allowed to unlock it or assemble it for specified recreational reasons, such as hunting or target shooting. The thing was, in the District of Columbia, there was no place to hunt, there’s no lawful hunting areas in the District of Columbia. And, there’s no places you can shoot a shot gun or a rifle. You need a special kind of long range firing range to be able to be able to shoot them. And so there was no such range available to civilians. So, effectively, if you lived in the District of Columbia, you couldn’t use your firearm for anything. And there was an early court ruling that said that by ‘recreational purposes’…[technical difficulty]2...and did not mean ‘self defense.’ So, the court suggested that if there was a burglar coming into you house, and you had a rifle that was lawfully owned, properly registered and dis assembled the way the law required, you were not even allowed to assemble that rifle and use it in self-defense inside you own home. So, effectively, Washington, DC’s law was a ban on the use of any firearm for personal self-defense—long gun or hand gun.

[00:07:02:15] GWorks—Who is “Heller”?

[00:07:06:22] AW—Dick Heller was—is—was a security guard in a Federal court house in Washington, DC, who, during the day, was required to have a sidearm to protect the judges in the court house that he was in. When he went home at night, he had to leave his gun at work and not have protection of a firearm. Heller lived in a bad part of Washington, DC, where there was a lot of crime and Heller thought that he really wanted a firearm for his own personal self-protection. So, he was one of about six plaintiffs who were recruited by this trio of Libertarian lawyers led by Alan Gura to bring this lawsuit against the District of Columbia.

[00:13:29:15] GWorks—Thank you, Professor Winkler.

[00:13:31:15] AW—Thank you very much for having me.

—End of Part One—

To Part Two

EDITOR’S NOTES

GOVERNINGWorks conducted this interview on Wednesday 31 August 2011. GWorks produced and edited this video and its transcript.

GWorks would like to thank Professor Adam Winkler for his generous participation in GWorks Interviews and Professor Winkler and W.W. Norton, Inc. for providing a Reviewer Copy of Gunfight: The Battle Over the Right to Bear Arms in America before its publication and this interview.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.

1 John Ashcroft, Letter to Mr. James Jay Baker (17 May 2001). “While I cannot comment on any pending litigation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.”

2 A technical issue affected audio recording for several seconds and forced a minor excision of video and audio as Professor Winkler discussed the legal understanding of gun control relating to the “recreational use” of guns and “self-defense.”

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