The name Adam Winkler should be one that many of you are familiar with. Winkler is a professor at the UCLA School of Law and a go-to “expert” for journalists who need someone with credentials to parrot an anti-gun talking point.
Winkler has never seen a gun control law he doesn’t support and has never backed away from trying to misrepresent reality to frame anything and everything that shows it doesn’t work as really just a failure of not even gun control.
To say he’s outright hostile toward the Second Amendment is to put it mildly.
I bring him up today because he took to the pages of the Los Angeles Times with an op-ed that claims the Supreme Court has completely messed up gun laws in this country, and he says it like it’s a bad thing.
He starts by discussing the Ninth Circuit’s ruling on open carry in California.
Major American retailers have already made their stance clear. Following several high-profile shootings, chains such as Starbucks, Target, Walmart, CVS and Walgreens have all requested that customers refrain from openly carrying firearms in their stores, even in states where it is legal. For most gun owners, the “right” to open carry is effectively checked by the reality that they would be asked to leave their local grocery store or coffee shop if they exercised that right.
Even if it does not lead to widespread changes in public carry of firearms, the broad ruling of the federal court could have a huge effect on gun laws more generally. Indeed, if the court’s reasoning in this case is applied to widely popular, mainstream laws such as background checks and felon bans, those laws would have to be overturned too.
The court demands that, in order to ban open carry today, California must show a “history and tradition” of earlier bans on open carry. This the state cannot do; for most of American history, states banned concealed carry but permitted open carry. Although disclaiming any such intent, the federal court here required a “historical twin” — that is, previous legislation that banned open carry.
First, I’m going to point out that I’ve seen openly carried firearms at all of those particular businesses locally and no one has ever been asked to leave. Not a one. No one blinks.
Corporate makes statements, but they don’t run the individual stores, and most people around here don’t care, so already, Winkler is making an assumption that isn’t reflected in reality.
And then it gets worse, because he acknowledges that open carry bans aren’t historical or traditional, and open carry was common and without issue until relatively recently, and there’s still no evidence of openly carried firearms being a public problem beyond some people getting the vapors at anyone exercising their Second Amendment rights.
Then we get to this:
Background checks, the primary tool we now use to prevent criminals and the mentally ill from buying firearms, would similarly be unconstitutional under this logic. There were no background checks in the 1700s or 1800s. Background checks are a modern invention: The federal Brady Handgun Violence Prevention Act wasn’t adopted until 1993. Because James Madison didn’t have a computer to check criminal records, the government might lack the authority to require that today.
And since 1993, have criminals continued to get guns? I ask because it’s one thing to say that it’s the primary tool, but if it doesn’t work, that should be enough reason to crater the entire thing.
But yeah, background checks likely couldn’t survive…unless there’s an analog. The Court ruled in Rahimi that the analog doesn’t have to be a one-to-one, so maybe the courts would find that vetting someone to make sure they’re eligible to vote is a sufficient enough analog here. I don’t know, but if it’s not, then so be it. Since background check requirements aren’t working to keep bad people from getting guns anyway, I fail to see the problem
The same applies to laws prohibiting felons from possessing firearms. In the 1700s and 1800s, there were no laws on the books banning felons from having guns. The first federal ban was enacted in 1938.
If the courts continue to demand 18th century precedents for 21st century reforms, we are heading toward a legal landscape where even the most basic, popular and life-saving regulations are stripped away because they didn’t exist in the era of the musket.
Ah, the “era of the musket.” I love that line. Do you know why? Because it shows you just how little Winkler and “experts” like him understand.
The term “musket” isn’t a synonym for muzzle-loaded guns. It’s a smooth-bore muzzle-loader.
In the “era of the musket” he refers to, though, many Americans had actual rifles, meaning guns that had rifling. They were still loaded via the muzzle in most cases, but they were, in fact, rifles and were more deadly than the most common military arms of the day, which were actual muskets.
However, I will give Winkler his due. He actually does make one valid point.
Regardless of the ultimate outcome here, the 9th Circuit’s ruling illustrates the chaos created by the Bruen case and its requirement that gun laws be consistent with the laws of two centuries ago. This history and tradition test has caused a mess in lower courts across the country, with judges reaching conflicting conclusions about the constitutionality of ghost guns, age restrictions and even bans on firearms in post offices.
The reason the justices adopted the history and tradition test, they said, was to minimize judicial activism and prevent judges from imposing their views on the Constitution. But the exact opposite has happened. The ambiguity of the required historical analysis — find a similar law, but it doesn’t have to be a twin — has opened the door for more partisan gun rulings than ever before. Republican-appointed judges tend to strike down gun laws; Democratic-appointed judges tend to uphold them.
Bruen didn’t create the chaos, though. That was because of Rahimi.
By saying the analog didn’t have to be as close as the defendants’ attorneys argued, it meant that we didn’t have guardrails that showed us what was close enough and what wasn’t. As a result, anti-gun courts continue to decide that anything they can twist enough is constitutional, while more pro-gun courts tend to see it the other way around.
Yet let’s also remember that the Ninth Circuit, which issued the California ruling, was long one of the most anti-gun courts in the nation.
Bruen, even following Rahimi’s “clarification,” laid groundwork that even they couldn’t ignore, as Winkler himself acknowledged. There was no analog for open carry bans because no one who is openly carrying is likely to be a threat.
To say that Bruen messed up gun laws in this country, though, Winkler is predicating it on the idea that gun laws are, by their very nature, good and necessary. They’re not. I get that Winkler is an anti-gun shill, but he’s still making too much of an assumption with that, and I’m not interested in arguing past that. It needs to be said, because that predicating idea underlies literally every argument he makes, and it’s false.
But I doubt anyone at the LA Times is going to call him out on that.
Editor’s Note: The mainstream media continues to lie about gun owners and the Second Amendment.
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