The name Adam Winkler might be familiar to some of you. I’m not a fan of this so-called gun law expert. Sure, he’s got the credentials to know what he’s talking about, but having seen his commentary for years now, I can assure you that he doesn’t in most cases. It’s kind of laughable how wrong he is most of the time.
Yet the media loves to talk to him. Maybe it’s the fact that he’s a law professor at UCLA, which makes him sound credentialed without getting into the Ivy League types.
Either way, Winkler has opinions, and he thinks that the Supreme Court has made a botch of gun laws lately.
Even before these decisions came out, especially after the 2022 opinion in Bruen, you wrote that the Court has made a mess of gun laws. How so?
When the Supreme Court issued its ruling in Bruen, it established that the current gun law has to be consistent with the history and tradition of gun laws in America – and, in particular, the gun laws that were in effect in the 1700s when the Second Amendment was adopted and the 1800s when it was expanded to apply to the states. “History and tradition” is ambiguous in many ways and often not very helpful in understanding modern gun laws.
In the 1700s and 1800s, we banned Black people from having guns, but obviously that is unacceptable today. And today we have gun laws, like background checks and felon-possession bans, that early Americans did not.
The Court has said the government need not show a “historical twin,” but figuring out how close the match between historical and current laws has proven to be elusive and unpredictable. Bruen said that relying on history and tradition would reduce judicial discretion, but the test is so unclear that, instead, the lower court decisions are all over the map.
Bruen said that relying on history and tradition would reduce judicial discretion, but the test is so unclear that, instead, the lower court decisions are all over the map.
The lower courts are all over the map because they’re not using rational thinking, but rationalizing thinking. They manipulate the history where convenient to justify what they wanted to do all along, even if it makes no sense. For example, ruling that an AR-15 looks like a machine gun, so it should totally be regulated because of that, even though the Second Amendment’s text doesn’t allow for that, nor does any history from the periods the Court said lower courts should look to.
When anti-gun judges feel they have to find excuses to “interpret” rulings and the law to defend gun control, rather than defending the Constitution, you get what looks like a muddled mess.
Oh, and lest I ignore this bit:
But the Supreme Court has certainly departed from its own history and tradition before, right?
Of course. The most famous case is Brown v. Board of Education. The very first paragraphs of that opinion say we can’t look back to what the law was right after the Civil War, when the 14th Amendment was first adopted, to figure out whether public schools should be segregated: Those historical traditions are too unclear, too ambiguous, and we can’t be bound by them, due to the profound changes in society.
It’s interesting because that’s precisely what the Court argued, more or less, in Wolford. The law used to defend the vampire rule was a Jim Crow-era law that existed to keep black people from carrying guns without permission. We cannot be bound by those precedents because of the time. It’s the same reason the courts rightly reject using racist gun control measures as grounds for defending current gun laws.
With Winkler, I honestly think that his real problem with the Court here is that they’ve laid the groundwork for a system that should rarely see a gun control law survive judicial scrutiny. He’d prefer a world where gun control is accepted and considered the norm, where the courts do little except, maybe, keep the worst gun control excesses at bay.
But that isn’t the world our Founding Fathers wanted for us.
The history courts are supposed to use is clear. The attorneys from both sides present the arguments, which should be taken from a neutral point of view, but it’s clear that what’s happening is nothing of the sort.
If there’s an issue with Bruen and the Court since then, it’s that too few jurists have the moral fortitude to actually do what’s right. That’s not a Supreme Court failing, either.
And, frankly, if Winkler doesn’t like what’s happening, it’s probably a sign that it’s a move in the right direction.
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