Will Hillary Clinton Take Away Our Guns?
We talked to a constitutional law professor about how far a new Democratic president's gun-control policies could go—and whether they would be effective in reducing violent deaths.
A member of the Ohio Minutemen with his assault rifle at a July protest in Cleveland. Photo by Michael Robinson Chavez/The Washington Post via Getty Images.
Back in June, Hillary Clinton appeared on ABC and, in an interview with George Stephanopoulos, outlined her plan for "common-sense gun safety measures." She vowed, among other things, to close gun-show loopholes, repeal the law that gives firearm companies immunity from lawsuits, and impose comprehensive background checks on anyone who wants to buy a weapon. All of that is standard liberal gun-control stuff, yet conservatives predictablyresponded that a Clinton presidency would spell an end to the Second Amendment.
In her address to the Democratic National Convention this past July, Clinton made a point of assuring people that she wasn't planning on taking away their guns (an assurance that goes hand-in-glove with any discussion of gun control). But the long-standing myth, pushed by the gun lobby, that Democrats want to literally seize the firearms from the hands of hardworking Americans still persists. In August, the National Rifle Association put out an ad portraying Clinton as an out-of-touch hypocrite who's surrounded by armed guards but would leave less well-off Americans "defenseless" if she had her way. Donald Trump ran with the NRA's message at a rally in Miami, where he joked that Clinton's guards should disarm and then "see what happens to her."
To figure out if there's any way that Clinton could actually do what the NRA, right-wing websites, and Trump say she will, I called up Adam Winkler, who is a constitutional law professor at UCLA and an expert on gun laws. Would Clinton and her allies really seize our guns? If she couldn't or wouldn't do that, what could she reasonably do if she got to the White House?
"Once the goal was to do much more to make the country gun-free," he told me, but "gun-control advocates have really abandoned that idea––largely because of political realities."
Here's the rest of our conversation, lightly edited for length and clarity.
VICE: One of Clinton's least controversial gun-control measures—Donald Trump agreed with her about it during the debate—is to take guns away from people on terrorist watchlists. But is that unconstitutional, given that these people haven't been convicted of a crime?
Adam Winkler: Well, the courts haven't ruled on it, because we don't have a law, which means the courts don't have the opportunity to weigh in. There are definitely constitutional concerns with a no-buy list based on a variation of the no-fly list. But most experts believe that those constitutional concerns can be handled with appropriate procedural protections for gun owners in the no-buy list. The no-fly list has run into constitutional difficulties already.
For instance, the one we have today operates under different procedures than it used to because the courts started to say, "Hey, this violates due process of law, the ability to travel without due process protection." They must have some ability to challenge their inclusion on one of these lists at least at some point. So I think a no-buy list would be constitutionally permissible so long as it had appropriate due process protections for the individuals listed.
Another thing she wants to do is ban "assault rifles," but there's a debate about whether the old assault rifle ban, which expired in 2004, did much good. What do you think of that?
My own view is that there's no way to make assault rifle bans effective. It's an ineffective law, it's an ineffective goal, it's an ineffective policy that's mostly about symbolism and not about substance. The truth is assault weapons are used very infrequently in crimes. I think there is a grand total of about 300 people a year who die from rifles of any sort––assault or otherwise.
But don't we hear about the AR-15, like, all the time?
The boogeyman, the AR-15. But if you look at the numbers, gun crime is not just predominantly, but overwhelmingly, handgun crime. Criminals don't carry around a rifle. Who would carry around a rife if they're gonna go commit a crime? That's not to say it never happens, but why the assault rifle ban is the focus of the attention is because we've seen several high-profile mass shootings involving one of these weapons. But still it's worth remembering that in the vast majority of mass shootings, it's a handgun. When we had the assault weapons ban in effect from 1994 to 2004, the gunmakers just changed the guns slightly, made some cosmetic changes, and then sold the exact same guns with the exact same lethality by the millions.
The last time we spoke, it was about the lawsuit the families of Sandy Hook victims had filed against Bushmaster rifles, and because I thought that their decision to sue the gunmaker over their marketing materials might be the future of gun control. Is that suit a moot point?
If they were 45 percent of shootings, I'd say, Hey, maybe that's something we should try to regulate. When the assault weapons ban was in effect, there was only one credible study of its impact, and that study found that it was not associated with any significant reduction of violence. It was associated with a drop in the number of assault weapons recovered at crime scenes. Which of course makes sense––if you ban people from buying the weapon, they're not gonna use that weapon. The authors suggested that killers just substituted a handgun.
The next president will probably have the chance to appoint a few Supreme Court justices. How would a new court affect gun issues?
There are quite a few [active] cases dealing with gun issues. If the Supreme Court was prepared to overturn the Heller case [which established that people had the right to own handguns], and declare there was no right to bear arms in the Constitution, they're gonna have plenty of opportunities to do that. My sense is that the justices are unlikely to overturn Heller. I think there's a considerable fear among the liberal justices that such a ruling would cause a backlash that would lead to possibly even a constitutional amendment providing even stronger protections.
While the prospect of a constitutional amendment is mostly a fool's errand, I think in the area of guns, it might be one of those areas that such an amendment could happen.
What would that mean? A super Second Amendment?
It's happening right now already at the state level. The NRA is pushing state after state to adopt constitutional amendments providing even stronger protections for gun rights than the states already provide. So we've seen that happen in Missouri and Louisiana already––places that are already pretty gun-friendly. But the NRA still pushed for new amendments providing even greater protections for gun owners.
If there's a liberal elected to the White House, if Hillary Clinton is elected, I actually think we won't see significant gun reforms in the near future. While I think she would prioritize gun control as an issue, as long as Republicans control the House, there's no gun control laws that are going to be adopted. That seems pretty clear.
What's at stake in this election in terms of guns? What would happen if Trump won?
I think that what we're talking about right now in terms of the gun agenda is three things, really. It's universal background checks, a no-buy list for terrorists, restriction on assault-style military rifles, and then the fourth thing, which is what the NRA is pushing for, which is federal regulation loosening laws restricting concealed carry.
If Donald Trump we're to be elected, there's no doubt that one of the first things the NRA would be pushing for––especially if it had a Republican Senate and a Republican House––would be a national reciprocity law that would allow people to carry their guns in any state that they wanted to. So someone from Ohio could go to California and carry their gun [without getting a new permit]. It would basically make it harder for liberal states like California to restrict people's ability to carry their guns. It is definitely high on the NRA's agenda, and if we get a Republican president, we're likely to see significant new gun laws, but loosening them rather than making them more strict.
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