Guns

Vegas, Bump Stocks and the NRA: Is the Gun Debate Changing?

A Q&A with law professor Adam Winkler on whether we've reached a watershed in the debate over the Second Amendment.

Ready to compromise?

Photographer: Victor J. Blue/Bloomberg

Every weekend, I write up an interview with somebody who knows a whole lot more than I do about a big news event of the week. Invariably, that news is not very heartwarming. But the Las Vegas massacre on Sunday was a whole new level of depressing.

Yet looking ahead, things may not be so bleak. A new bipartisan push in Congress to ban so-called bump stocks -- an aftermarket modification that allows a semi-automatic weapon to fire nearly as rapidly as a machine gun -- could be a breakthrough in the nation's seemingly intractable argument over gun control. On Thursday, miracle of miracles, the National Rifle Association even (kinda sorta) added its support.

For a more informed opinion on the state of great gun debate, however, I sought wisdom from somebody who has been at the center of it for years: Adam Winkler, a constitutional law professor at the University of California, Los Angeles. In 2011, Winkler wrote "Gunfight: The Battle Over the Right to Bear Arms in America," which the Los Angeles Times called "an antidote to so much in the gun debate that is one-sided and dishonest."

Winkler's academic credentials are sterling: an undergraduate degree from Georgetown, a master's in political science from UCLA, a law degree from NYU and clerkship with the U.S. Court of Appeals for the Ninth Circuit. But what makes him an indispensable voice on this issue are a calm willingness to see all sides of the argument, an ability to put the current debate into hundreds of years of historical context, and a prose style that engages a lay audience as well as legal scholars. Here's an edited transcript of our give-and-take:

TOBIN HARSHAW: Adam, before we get to either the matter of the moment, Las Vegas, or the heart of the whole debate, the Second Amendment, let's talk a bit about some seminal moments for the current gun culture. First, in a much-discussed 2011 essay in the Atlantic, you traced the modern-day guns rights movement to an unexpected source: the Black Panthers. Can you briefly explain what happened in 1967 and after?

ADAM WINKLER: Well, Toby, one of the most amazing spectacles in the history of the gun debate was the day in May 1967 when 30 members of the Black Panthers marched right into the California capitol building openly carrying loaded rifles, pistols and shotguns. They weren’t there to commit violence, they were there to protest a proposed gun control law that would ban open carry of firearms.

Huey Newton had gone to law school for a year and learned that California did not prohibit carrying arms openly, so long as the weapons weren’t pointed at anyone. Using this law, the Panthers had begun conducting armed patrols in Oakland to protect black residents from racist police. The Panthers argued that the Second Amendment guaranteed their right to have guns on the public streets, and that arms were for not just for self-defense but fighting back against a tyrannical government.

Black radicals with guns horrified many lawmakers. California Governor Ronald Reagan, who would later become the first presidential candidate endorsed by the NRA, said then there was “no reason” a citizen should be “carrying loaded weapons.” The open carry ban passed, as did a number of other gun laws that were aimed partially at disarming minorities. These laws ultimately helped fuel an emerging gun rights movement that feared government was coming for their guns next.

TH: Way back in the 1970s, when I was a middle-schooler with a freshly minted junior hunting license from the Wisconsin Department of Natural Resources, I went to after-school courses where NRA volunteers taught gun safety, wildlife preservation and other nonpolitical matters. How did it transform into this bastion of Second Amendment absolutism?

AW: The NRA was not always the die-hard, rarely-compromise opponent of gun control we know today. The NRA was founded after the Civil War -- ironically, by a reporter for a newspaper not known today for its support of gun rights: the New York Times. In the 1920s and '30s, the NRA was at the forefront of the gun control movement, drafting restrictive gun control laws and promoting them in state after state.

When Congress was considering the first major federal gun control law, the president of the NRA was asked whether it violated the Second Amendment. Today, his reply is astounding: “I have not given it any study from that point of view,” he said. The organization also supported the Gun Control Act of 1968.

In the mid-1970s, the leaders of the NRA were plotting to move the headquarters to Colorado Springs and retreat from political lobbying. This angered a group of hardliners in the membership who took over the organization, literally overnight. At a membership meeting, they staged a coup and replaced the entire leadership and recommitted to fighting gun control. 

TH: And yet, after years of standing in the way of nearly any effort to place limits on gun rights, the NRA now says that bump stocks and other "devices designed to allow semiautomatic rifles to function like fully automatic rifles should be subject to additional regulations.” Were you shocked and amazed?

AW: Anytime the NRA supports a gun safety measure in the wake of a mass shooting, when the organization usually stays quiet, is surprising. At the same time, the NRA’s statement was flimsy. The organization called not for any new laws but only that the Bureau of Alcohol, Tobacco, Firearms and Explosives reconsider its earlier determination that the device was not prohibited by current law. That’s simply a stall tactic.

The bureau under President Barack Obama didn’t approve bump stocks because they thought they were swell. The bureau concluded that its hands were tied; these devices simply haven’t been outlawed by the terms of federal law. Another review should lead to the exact same conclusion. If the NRA were serious, it would call for a law prohibiting any device or mechanism that increases the rate of fire of a firearm in such a way as to simulate automatic fire.

TH: I'm betting that, like me, most Americans had never heard of bump stocks. Are there other after-market alterations or gun accessories that should be garnering more scrutiny?  

AW: Bump stocks are just the tip of the iceberg, and if a law or regulation merely prohibits these particular devices we will not have made much headway. Manufacturers in recent years have devised a number of other devices and modifications that can pull the trigger faster to simulate automatic fire. For example, there’s the AutoGlove, a glove with an electric motor that pulls back the trigger finger rapidly. It’s important that federal law prohibit not just the bump stocks but any future device designed to increase the rate of fire.

TH: I also know that the NRA and its allies in Congress have been pushing to remove gun silencers from the list of devices regulated by federal authorities under the 1934 National Firearms Act. One argument put forward is that firearm noise is causing hearing loss among sportsmen. Do you find that line of argument as absurd as I do?

AW: Maybe not. Anyone who has spent some time at a shooting range knows how loud firearms are. Most gun enthusiasts spend hours on the range, where their ears can be damaged. Although they wear ear protection, silencers would lower the potential damage. Moreover, silencers aren’t as quiet as portrayed in the movies. Firing a gun with a silencer is still quite loud.

But nonetheless we should be very cautious about repealing the ban. Once these devices are commonplace, they will be hard to ever control. And, even though they aren’t silent, many criminals will prefer them because they do muffle the sound somewhat. For a criminal, that can be all the difference between being discovered and getting away before being found. 

TH: The gun lobby also has what seems to me an odd stance about laws regulating transporting guns across state lines. Can you explain that and whether it seems more sensible to you than to me?

AW: The NRA’s primary legislative goal is “national reciprocity” regulation. They are selling it as a law that would allow a Virginia resident with a Virginia concealed-carry permit to carry while on a business trip or vacation in states like California, where the practice is more heavily restricted. Yet some proposals in Congress would allow a California resident to obtain a permit in Virginia (where you can get one online without any residency requirement) and carry at home.

That isn’t “reciprocity” for the occasional tourist, but a disguised effort to overturn the strict carry policies of places like California. It would lead to stark increases in the number of guns on the streets of Los Angeles, New York and Boston. Today, Los Angeles allows fewer than 500 people to have carry permits. If the egregious versions of national reciprocity pass, soon there will be hundreds of thousands. 

TH: Many gun-rights advocates tend to argue in the face of such tragedies that we don't need new laws, we need better enforcement of what's on the books. Do you think they have a point?

AW: We should take the NRA up on their suggestion that we better enforce the laws on the books. While the NRA says that, the leaders of the organization have spent years handcuffing the Bureau of Alcohol, Firearms, Tobacco and Explosives, the main federal law enforcement entity on guns. The NRA repeatedly has prevented the confirmation of anyone to head the bureau, limited the ATF’s funding, capped the number of inspections agents can do, and made record-keeping very difficult. Moreover, it is hard to take seriously the claim that we need to enforce the laws on the books when the same organization is mounting legal challenges to those same laws.   

TH: Let's get to the heart of it all: the Second Amendment. As you once wrote:

The text of the Second Amendment is maddeningly ambiguous. It merely says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Yet to each side in the gun debate, those words are absolutely clear.

Gun-rights supporters believe the amendment guarantees an individual the right to bear arms and outlaws most gun control. Hard-line gun-rights advocates portray even modest gun laws as infringements on that right and oppose widely popular proposals—such as background checks for all gun purchasers—on the ground that any gun-control measure, no matter how seemingly reasonable, puts us on the slippery slope toward total civilian disarmament.

As a constitutional law professor, do you see any way to reconcile those two sides?

AW: One problem with the gun debate is that each side tends toward extremism. Yet most Americans are in the middle. They believe we have a right to have guns for personal protection. Polling data show that support for the right to bear arms is at an all-time high. But Americans also believe we can have better and more effective gun control. Polls show overwhelming support -- greater than 80 percent -- for reforms like universal background checks and a no-buy list for suspected terrorists.

We can have a right to bear arms and gun control. The Founding Fathers who wrote the Second Amendment regulated guns, and gun safety legislation has always been a part of our law. The founders prohibited the possession of guns by people deemed untrustworthy, such as loyalists, registered privately owned guns for the militias, and barred loaded weapons in homes and warehouses. Gun control short of disarmament has nearly always been upheld by the courts.  

TH: Since you wrote those words, we've had: the Aurora, Colorado, movie shooting (12 killed); the Sandy Hook, Connecticut, school shooting (26 killed); the Pulse nightclub in Orlando, Florida (49 killed); the Charleston, South Carolina, church shooting (nine killed); the shootings at Umpqua Community College in Oregon (nine killed); and the Islamic State inspired shootings in San Bernardino, California (14 killed). So, with the surprising reactions in Congress and the gun lobby this week, do you think the Las Vegas massacre will be the event that finally brings about change?

AM: We are seeing some surprising support for potential gun control measures from Republicans in Congress, which certainly is unexpected and unusual. Yet it nonetheless reflects a longstanding consensus that there’s no place for automatic fire in a civilized society. They aren’t useful for self-defense, and they pose a tremendous hazard. We’ve effectively banned machine guns for decades, and the bump stocks are an obvious end-run around the law.   

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Tobin Harshaw at tharshaw@bloomberg.net

    To contact the editor responsible for this story:
    Philip Gray at philipgray@bloomberg.net

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