Preet Bharara:

Hey, folks, I’m recording this message on the night of Wednesday, September 10th. The news has just broken that conservative activist, Charlie Kirk has been assassinated. This is a wretched, horrible, disgusting, depraved criminal act. I reject violence, I deplore violence, we all should, especially political violence of any type.

We work out our differences in this country with ballots, not bullets. I hope the perpetrator meets swift and sure justice. The conversation in this episode about guns was recorded days ago before this terrible act, but it is as relevant now as ever. We’ll have more coverage in the coming days about this terrible, awful, inexcusable murder.

From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned, I’m Preet Bharara.

Adam Winkler:

There are more people who are gun enthusiasts today, who collect guns, who shoot guns as a recreational matter, who believe guns are a good thing for them and the safety of their homes, regardless of whether the public health data supports that or not.

Preet Bharara:

Gun violence is one of the leading causes of death for children and teens in the United States. News of yet another mass shooting breaks out almost weekly, and yet gun reform remains fiercely partisan. It is indeed a cultural flashpoint in a country that feels as divided and polarized as ever. This week I’m joined by John Feinblatt, the president of Everytown for Gun Safety, and Adam Winkler, a constitutional scholar and expert on the Second Amendment.

We discuss whether gun culture is changing for the better, whether legal reforms are making any progress, and whether the private sector can step up in the face of political deadlock. That’s coming up. Stay Tuned.

Where do Americans stand on gun reform today? Gun Safety Advocate, John Feinblatt, and Second Amendment expert, Adam Winkler, join me to discuss. Adam and John, welcome to the show, it’s a real privilege to have you both here.

John Feinblatt:

Oh, thanks so much for having us. Appreciate the invitation.

Preet Bharara:

This is an issue we come back to again and again and again. It’s central to both of your careers, but very important to mine also. First as a prosecutor and now as someone who tries to talk about the rule of law and public safety and policy and all sorts of things. Before I get to a law or a statute or the constitution or policy, I want to ask you a different question.

And the most recent mass shooting that got a lot of attention was at this Minnesota church. And I will tell you that I was watching the news coverage unfold like many people in the country, and I heard a young boy speak. And like you all, I’ve been through a lot of these and heard a lot of kids including Parkland and other astonishingly horrifying events. And the way this little boy was describing what happened gravely and matter-of-factly, it just broke something and I could barely finish watching him speak.

And then of course later in the day, his segment was played again and again and I couldn’t watch it. I turned it off, I changed the channel. And I feel kind of mixed about that. Someone like me who used to be in law enforcement and talks about these issues and has convened the two of you to talk about them, the fact that I could barely bear to listen to him because of all that it meant. If I couldn’t bear it, how do other people bear it and how do we deal with the problem of people turning away because they just can’t listen to it because it’s too painful and heartbreaking? Does that make sense as a question? And do you have an answer?

John Feinblatt:

Well, look, I think it is heartbreaking and it’s devastating, particularly when it involves kids. It’s almost unimaginable that we live in a country where you’re vulnerable, whether you’re at school praying or whether you’re at church or whether you’re at a supermarket or whether you’re at a sporting event. But I think things have changed. Sometimes it’s hard to really understand that when in the face of what happened in Minnesota.

But if you can roll back sort of time and think about what happened after Sandy Hook, 2012 to 2013, the most modest bill imaginable was put on the Senate floor. It had giveaways right and left to the NRA, which I have to say I was part of the person who was involved in drafting that. And you had virtually every Republican voting against it and a handful of Democrats voting against it. And that was unimaginable, that when 20 kids get shot in a Connecticut schoolhouse that Congress turns its back.

And for me and for those that I work with, we just took a step back and thought, “If you can’t pass laws in the face of Sandy Hook, when can you?” And I think that we made four conclusions out of that. One was the NRA had to be diminished. They were treating the White House like their clubhouse. You needed a grassroots, you needed to get noisy. The NRA could send down an alert, an emergency alert to members of Congress, and suddenly they genuflected and there was no noise on the gun safety side.

The third was that you can’t just knock your head against the same wall over and over again and expect a different result. And we took a page right out of marriage equality and went state by state. And the fourth one, you had to convince lawmakers that at election time this was something to run on and not to run away from.

And in the face of Minnesota where we started this conversation, it’s hard to actually see how much has changed, but so much has changed in terms of the politics of this issue, particularly in the suburbs, particularly among women, particularly among independents. And I think we’re seeing that in Virginia right now, where in the Tidewater area of Virginia, this is rated as the number two or number three issue for in the governor’s race there.

And when you think about the number of states that have taken action, it’s remarkable. 22 states have background checks. 21 states now have red flag laws. 15 states have restrictions on assault weapons ban. And Preet, you know better than most, we’re a country of laws, or at least we used to be, I think we are, I hope we are still. And laws matter. I mean, when you look at the states with the strongest laws, like a Massachusetts, and compare it to a state like Mississippi that has probably the weakest laws in the country, the gun death rate is 10 times in Mississippi what it is in Massachusetts. Laws matter.

Preet Bharara:

Adam, do you want to respond to or amplify anything that John just said?

Adam Winkler:

No, I think John’s right that there has been a lot of movement at the state level, but stubborn resistance to movement at the federal level. And in part, this is not just a story about guns, right? We have a federal government that has proven mostly incapable of handling any of the major issues that affect our society right now, perhaps due to the filibuster, certainly due to polarization out there.

And we don’t see any real significant action at the federal level. We have seen one under President Biden, we saw a bipartisan bill passed for gun reform, but it was very, very minor in terms of its goals and in terms of its accomplishments. I think for many Americans they do, there is some hand wringing over gun violence. But for the most part, they’ve accepted that there is a right to bear arms, that the state of American constitutionalism and American politics makes it unlikely that any kind of significant gun reform is likely to be enacted at the federal level. And so they accept it the way we kind of accept cancer.

Yeah, there are efforts to fight it and efforts to do research, but if someone in your family gets cancer, you can bang your head against the wall, but the cancer is still there and you can take your treatments. And it might not be the best analogy in the world, but I think Americans have come to the conclusion by and large that gun violence is here to stay and the guns are here to stay and it isn’t worth the time to do too much hand wringing over the latest incident.

John Feinblatt:

We can argue whether the bipartisan bill was weak sauce or strong sauce. It’s probably, in my view, middle sauce. But I think the most important thing about the bipartisan bill of three years ago is that 15 Republicans voted for it, including Mitch McConnell, Lindsey Graham, Thom Tillis. And there’s a pretty clear reason why, which was that the midterms were around the corner and elections are usually won or lost in the suburbs, and they did not want to go into the suburbs as the party opposing gun safety. So I think that there is significant change politically. Will something happen right now? No. Is there anything happening right now in Congress? No. Do we have a Congress? I don’t know. Do we? Not sure. Not sure.

Preet Bharara:

Middle sauce, middle sauce Congress, John?

John Feinblatt:

Yeah. Well, yeah.

Preet Bharara:

As you said. So further to those points, I’ve asked this question every few months for eight years since I’ve been doing this broadcast. The question is, there are some things about which there’s a lot of polarization and disagreement, but there’s some things about which there is a lot of consensus, including I believe universal background checks in a way that would get around the gun show loophole and some other things.

Most people, including I think NRA members, believe universal background checks are a good thing. That includes people who have guns, that includes people who are staunch supporters of the Second Amendment. Why on God’s earth, given how many things we’re divided about, can such a thing not pass our Congress?

Adam Winkler:

Well, I think part of the story there is the nature of American elections. First of all, we should recognize that there’s a difference between the breadth of support for an idea and the depth of support for an idea. And those are two very different things.

Preet Bharara:

So the depth of support for universal background checks is not great?

Adam Winkler:

It’s not there. There’s not the same intensity of preference in favor of it. I remember John talks about in the wake of the shooting up in Connecticut, the Newtown shooting, a universal background check bill was proposed. And there were democratic senators who were talking about the fact that while 90% or 85% of public opinion poll respondents said they support universal background checks, calls to their offices were running ten-to-one against background checks.

That’s intensity. The pro-gun side is fundamentally more intense on this issue. They vote on this issue, they’re single-issue voters. They organize on this issue, they get their friends to vote on this issue. And when it comes time for the election, not the general election, but the primary election primarily, we have Republican candidates in particular who are very fearful of being ousted from their positions on the general election ballot by people to their right on this gun issue.

And so there’s so much intensity in the pro-gun side. I think John’s pointing to the fact that we’ve seen growing intensity on the gun reform side, but it’s not even close to equal yet.

John Feinblatt:

Well, I think, look, we have to also be cognizant of the fact that one of the huge differences between 12 years ago, 13 years ago and today is the state of the NRA, the state of the NRA couldn’t be weaker, no question about it. This was a major effort on every town’s part and others’ part to really weaken and expose the NRA. I have to say, they more self-imploded than anything.

I think we think we did some of the job. I think they did most of the job of imploding. But the best example is in 2016, they were one of Trump’s largest outside donors. By 2024, they were scraping together one or $2 million and Trump sort of threw them to the curb. And there is no group that has taken their place. And I think that is making a huge difference.

But there’s no question about it, diminishing the NRA’s power, which certainly had a huge role in primaries, was essential to this. And they are just a shadow of their former self. They’re spending one in $5 on lawyers’ fees right now. And I think that is why you have, for instance, in Virginia, which is a swing state, let’s not only think about Northern Virginia and the suburbs of Washington, where gun safety is ranked. And we just did a poll that came out last week is ranked either the number two, number three issue. Number one of course is the economy.

It’s always the economy is number one. And you’ve got Spanberger running on the issue of gun safety pretty vigorously. The things that are interesting to note about Spanberger is before she was a member of Congress, before she was part of the CIA, she was actually a volunteer with Moms Demand Action, which is every town’s grassroots arm. And she wears that proudly.

Adam Winkler:

Let me just respond a little bit if I can. Number one, I think that John has talked about Virginia, mentioned it a couple of times here, there’s 38 states where that’s not the case, right? There’s 38 states where gun politics are as strong as ever. And in fact, I disagree with John about the impact of the NRA’s demise.

There’s no doubt that the NRA has been fundamentally weakened as an organization. But I think it repeats the mistake that gun reformers have made for the last 20 years is to believe that the reason why gun rights are so popular today is because of the NRA. If we get rid of the NRA or weaken the NRA, we’re weakening the gun rights movement. That has not happened.

Gun rights today are stronger than ever. We have a Supreme Court that’s expanding gun rights left and right. We have a gun control movement that has passed a couple of laws on the outskirts but has not done anything to really significant lower gun violence in America. And anything that the gun reform movement gets adopted is not only susceptible to challenge, it will be challenged and likely overturned. And so-

John Feinblatt:

Wait, wait, wait, let’s really-

Adam Winkler:

Well, let me finish my answer.

John Feinblatt:

… talk the Supreme Court.

Preet Bharara:

A little respectful disagreement here. I like that.

Adam Winkler:

Well, we want to stir it off a little bit, especially because we don’t have any gun rights people on the call. But I think there is no doubt that the gun rights are stronger than ever and the NRA is weaker than it’s been in the last 30 years. And so the gun rights movement does not depend on the NRA. It has single issue pro-gun voters and the NRA is part of that story, but it’s not the whole story at all.

John Feinblatt:

Of course, it’s not the whole story. But let’s talk about the Supreme Court because the Supreme Court’s been a little surprising recently. Let’s talk about the decision on ghost guns. That was a seven to two decision in favor of upholding the Biden ban on ghost guns or making ghost guns equivalent to any other gun, meaning that they had to have a background check and they had to be serialized. And how about the domestic violence case that was before the Supreme Court?

Preet Bharara:

I was going to ask about that.

John Feinblatt:

Eight to one.

Preet Bharara:

Rahimi.

John Feinblatt:

Thomas, the only person voting against it. The interesting of the recent Supreme Court case is the only one that they actually turned down was the Trump bump stock ban and upheld the two Biden rulings. So I think the Supreme Court, look, I don’t want to paint lipstick on a pig by any stretch of the imagination about the Supreme Court. And I don’t want to actually disagree with you, Adam, about the fact that the NRA is the only mover on gun rights because I think gun rights are a proxy for government control and sort of have significance well beyond just the issue of guns.

But the Supreme Court has been surprising on this issue, and they just recently denied cert on assault weapons. And if you look at, I think, the six circuits that have actually decided an assault weapons ban, all six have upheld them. So I think we have a knee-jerk reaction today, “Oh, this Supreme Court, they’ll never actually uphold any gun safety laws.” It’s just not true. The proof is in the pudding, eight to one, seven to two.

Preet Bharara:

So Adam, you’re the scholar here. How do you explain that?

Adam Winkler:

Well, I think it’s interesting that at this point we are just commending the Supreme Court for upholding the most mainstream, widely accepted gun laws in the country, like the domestic violence ban. That’s what we’re left with. The Supreme Court as a result of the Bruen decision. The Bruen decision decided a few years ago that raised the bar for gun control. We’ve seen lower courts strike down age restrictions on guns. We’ve seen courts strike down a variety of sensitive places restrictions on guns. We’ve seen, because of the Bruen decision, states like California and New York are being pushed by courts to allow concealed carry of firearms.

Yeah, the Supreme Court I don’t think surprised us with the domestic violence ban unless you thought the Supreme Court was going to overturn every single potential gun law that could come before it. I don’t think that was ever-

Preet Bharara:

Eight to one was a surprise to many people, probably including you.

Adam Winkler:

Yeah, I will say I thought it was going to be a little closer than eight to one.

John Feinblatt:

Yeah, seven to two was probably a surprise to you too.

Adam Winkler:

But at the same time, that worst surprise that the Supreme Court’s upholding the most mainstream, readily accepted gun law in the country, right? A law that is in place in some way, shape or form in almost every State of the Union, including the Republican states.

Preet Bharara:

Right. But it wasn’t historically. And if you believe that the various ultra conservative Supreme Court justices who were on the side of the eight, not the one, in talking about the importance of history, if I have this logic correct, couldn’t place domestic violence laws in the tableau of history going back. So it is a bit of a departure, is it not, from recent jurisprudence?

Adam Winkler:

But no, Preet, that’s exactly what they did. That if you read Chief Justice Roberts’ opinion, it is an ode to history and tradition and that the court goes out of its way to say that this law, this domestic violence restriction is historically grounded. That there were laws passed in the 1800s-

John Feinblatt:

Well, ghost guns were not historically-

Adam Winkler:

But that wasn’t a Second Amendment case, John. It was an administrative agency case as was the bump stock case.

John Feinblatt:

Well. Let’s, look-

Adam Winkler:

Let me just respond to Preet’s question, which is that the court in the domestic violence case analogizes that to laws in the 1800s that restricted violent people from having guns. I think probably John and I, one area of probably agreement we’d have is that the court actually makes a remarkably weak argument in that regard. That the analogies the court cites are poor analogies. And it does show in favor of John’s perspective that the court is when it comes to a gun law they want to uphold, they’ll do anything they can to uphold it.

Preet Bharara:

They’ll figure out a way to do it, and they’ll do the same with abortion in the other direction.

Adam Winkler:

But the court has not backed down from its history and tradition approach, which is why we’re seeing so many gun laws struck down in the lower courts.

Preet Bharara:

Right, with a lot of bad history. Can I ask a question? Since we’re talking about what they will and will not uphold. So I believe in the work that you all do and care deeply about gun violence, and I’ve prosecuted and oversaw the prosecutions of many, many people under a particular statute called 18 United States Code 922, one of which provisions we just talked about, which is to prevent people from having firearms if they’ve been adjudicated to have engaged in domestic violence.

But the most common version is somebody who has been convicted of a felony. And if you’ve been convicted of a felony, you may no longer possess a firearm and you can be prosecuted for that and you can go to jail for a long period of time. And that’s the law. It strikes me as a little bit odd, even though I’m supportive of the law and prosecuted people under the law that in a different context, voting for example, there is a huge movement to say, “Once you’ve committed your felony and you’ve served your time, you should have your voting rights and any supervised release, in some states, you should have that fundamental right restored.”

And if it is the case that the right to bear arms by individuals is a fundamental right, the Second Amendment to the Constitution, why is it the case that gun rights shouldn’t be restored to people who’ve been convicted of felonies as a general conservative article of jurisprudence? Am I on the wrong track here? Why isn’t that about to fall with the Supreme Court?

John Feinblatt:

Yeah, I don’t think you’re wrong here. I think that the problem is how you do restoration and what are the standards for restoration and what was the crime that you originally committed and what’s happened in between the time that your gun rights were taken away and today? That has to be a very serious thing. No different than when we consider people for parole or when we consider people for early release from probation. But what I fear is-

Preet Bharara:

But when a constitutional challenge comes to bear on felon possession of a firearm, is that going to be a one in one direction or the other?

Adam Winkler:

Well, good question. Predicting the future is hard. Yogi Berra said it hasn’t happened yet, but I think it’s likely that the court will uphold the felon in possession ban, at least in some way, shape or form as indicated.

Preet Bharara:

But what’s the logic of that? What’s the logic of that? If you’re a steadfast believer in the Second Amendment and its broad application, how does that work?

Adam Winkler:

So I think the court would use the same analysis likely as they used in the domestic violence context, that there’s a history of banning dangerous people from possessing weapons. And so we can ban felons from possessing weapons. There’s high recidivism rates. These are dangerous people.

I do think that it’s not unlikely that we might see the Supreme Court narrow the felon in possession ban. Justice Amy Coney Barrett, when she was a seventh circuit judge on the lower court, held that the felon in possession ban banning all felonies was unconstitutional, that it had to be violent felonies.

And I think there’s also been some pushback in the lower courts on the felon in possession ban being a lifetime ban and something triggered again by any felony. If you committed, you were in a bar fight when you were in college and got arrested for assault 30 years ago, that’s not clear that you should be denied your firearm today.

So I think the felon in possession ban is in general on firm grounds given what we saw in the Rahimi case, that’s the domestic violence case of a couple of years ago. But I wouldn’t be surprised to see the Supreme Court narrow it in terms of who it applies to and how long it applies.

Preet Bharara:

I’ll be right back with John Feinblatt and Adam Winkler after this.

This other sort of paradoxical thing going on with this administration that I think legally and policy-wise is utterly incoherent. And that is the reporting that there have been some discussions behind the scenes to ban trans people from possessing firearms. A., do you know if that’s true that those discussions have happened? B., would you expect that the gun rights advocates would lose their minds because this would be a harbinger or some bad other things to come to pass? How would such a ban be treated in the courts? So a lot of questions.

John Feinblatt:

I think the industry would lose its mind because they don’t want to see any restrictions that actually cut.

Preet Bharara:

And categories of people.

John Feinblatt:

And they don’t want to see any restrictions that cut to their bottom line. This is an industry that’s actually in a slump right now. When Democrats are elected, more guns are sold. When Republicans are elected, less guns are sold. And any restriction on who can buy a gun impacts their bottom lines. But there’s so many paradoxes about what’s going on in Washington right now.

Sure, people talk about the fact that Washington stats have gone down and they have gone down. But the truth is, for a community that’s still hurting from gun violence and gunshots are everyday life, stats are very little comfort. But the way that the administration has approached it feels more like political theater than it’s a long-term strategy.

There’s so many things if Washington wanted to help, they could do. They could improve technology, so we had license plate readers. They could improve technology so we had more cameras. They could improve lighting and clean up eyesores in communities. They could reverse the cuts that they’ve done on community violence intervention programs. They could increase the number of cops on the street just as happened during Clinton.

There’s just an array of things that one could do that would have a tremendous impact on fighting crime and lowering crime even more than it has. But stationing National Guard at monuments in Washington is hardly addressing the issue. And what’s even more paradoxical about it is the cuts that they’re doing. ATF no longer really has much muscle. They’ve cut funding for community violence intervention programs.

And so in one hand, they cut things that actually help fight crime while they do political theater. And it’s hard to say that it’s much more than political theater. And look at some of the cities, Adam, you talk about the fact that crime hasn’t gone down. Look at Baltimore. Baltimore used to be the city that was on everybody’s top of their list when they talked about crime. And if you looked over the past two years, murder rates have gone down 54%.

And why? Because they’ve made incredible investments in technology. They’ve made big investments in community violence intervention programs. They’ve put more cops on the street. And the mayor, to his credit, has made this the number one issue that he talks about. And so we have made progress, but I would never be one to say that stats should give you comfort. Stats are important, but you got to also understand how people are living and the destructiveness of crime in neighborhoods.

Adam Winkler:

Yeah, one thing I would say, I agree with John, and I don’t mean to be heard, to say that crime has not gone down in America. Actually, we are at historic lows in terms of violent crime in America. And part of the sort of charade of what Trump is doing in Washington DC and in Los Angeles and in other places where they’re bringing out military forces is it’s under the pretext of combating this out-of-control crime wave when crime is at historic lows. So I agree with John about that.

One thing about the proposals that are being bandied about perhaps behind closed doors to ban trans people from possessing firearms is I think one thing it highlights is that guns are a culture war issue. Like we talk about it in terms of constitutional rights, but it fundamentally is a culture war issue. And tying in trans people and finding another way to assert and communicate hostility to trans people, it’s become a real fundamental feature of certain participants in American politics. And I think that’s where this comes together. It’s just how can we once again find a way to hurt trans people as a matter of a culture war issue?

Preet Bharara:

But is that right or left or has that changed over time? Because I’m old enough to remember not that long ago that there are lots of liberal democratic politicians, including the chairman of the Judiciary Committee when I was a staffer there, named Patrick Leahy, Bernie Sanders and others who were from states that were very pro-Second Amendment and gun rights.

And on other issues, extremely liberal, left-wing, one of them is a socialist. So the right-left divide didn’t track as closely back then, at least, with advocacy for gun rights. Has that changed over time or are there still examples of that? And if it has changed, why do you think that’s so?

John Feinblatt:

Look, I think the problem has been that the issue of guns, yes, it is a culture issue, but I think the problem is that it has been argued at the extremes. You’ve got the far right saying sort of, “Guns for anybody, anytime, anywhere,” and you’ve got the far left saying, “Guns for nobody, no how, no way.” And of course, that has no bearing on where the American public stands.

The American public wants to be able to defend itself. The American public wants to have guns, but the American public also wants safety and responsibility. Just last week, every town announced something called Train Smart, which is a training program for people who are contemplating buying a gun, for people who have just bought a gun or for people who have been having guns all their life. And it was designed by veterans. It’s being taught primarily by veterans. And it’s because what we’ve made the mistake of in this country on so many issues and guns in particular, is that we’re all living in our own bubbles.

And I think if there’s any lesson I can take from the last election is that you got to talk to people on all sides of the issue. And I think that responsibility is something that most people believe in, but they don’t believe in having their guns taken away.

But they don’t want their teenager who’s having suicidal ideation to be able to get their parents’ gun. They don’t want their 6-year-old who’s curious and plays hide and seek in the sweater drawer to end up killing themselves or injuring their brother, sister or cousin. They don’t want their family member who is having some mental decline or depression or has lost their job having access to guns. And they don’t want guns getting into the black market through burglary, home burglaries or car break-ins.

And so really the argument has been too much about whether you can own a gun or not own a gun or referendum on guns. The argument really needs to be about responsibility. And that’s I think where the American public actually agrees.

Adam Winkler:

And one thing I would say too, I add to that is that as I mentioned earlier, when we think about why Congress hasn’t enacted a really significant gun reform with the Biden bill, or my disagreeing with John notwithstanding-

John Feinblatt:

Is this a slight disagreement?

Adam Winkler:

… these aren’t-

Preet Bharara:

We’re on the same side, John.

Adam Winkler:

… necessarily gun issues, right? There are issues in American politics that are affecting this as well, and guns are just a part of it. So we’ve seen in American politics a resorting of the political parties over the last 20 years. American politics are very different from when the three of us were youngsters and learning about American politics. When there was liberal and conservative Republicans and liberal and conservative Democrats. We’ve seen a resorting of American politics.

And as a result, guns are one of those issues that it becomes much harder to find where there’s common ground between the two political parties because we don’t find common ground between the two political parties on very much at all anymore. And that’s because changes in the political parties, I think, more than changes in guns.

John Feinblatt:

I think to some extent that is definitely true. But let me remind you of one thing, I think it was 10 years ago, it might be a little longer, 25% of Democrats sought and received A rating from the NRA. Today, it’s zero.

Preet Bharara:

So why is that, because we’ve just become polarized in all things?

John Feinblatt:

Look, we live in a very polarized country. That could be the subject of your next podcast, but we do. And look, I think the problem has been one of the problems on guns. And look, I don’t want to simplify this, because I think it’s a complicated issue. When the argument becomes can you own a gun or not own a gun, what you’re really tapping into is the issue of government control.

And so in some ways it becomes a larger issue than it actually is. It isn’t about safety, it isn’t about responsibility. It isn’t about protecting your family, it isn’t about making sure that suicide rates comes down. It’s about whether government can tell you what you can own and what you can’t own. And that’s been a huge mistake.

Adam Winkler:

Just to add onto that, I think the gun reform movement continues to make that mistake. While I think most of the mainstream gun organizations have given up on the idea that was popular in the ’70s and ’80s of banning handguns and really restricting civilians’ access to firearms in general, we’ve seen that go by the wayside.

It remains one of the top priorities among Democrats and among gun reformers to prohibit assault weapons. And there may be good reasons to do it, but assault weapons are the most popular rifles in America. Sales of these things have skyrocketed over the last 20 years, and gun enthusiasts love these guns, and yet Democrats are once again and gun reformers are once again talking about, “We need to ban these guns.” So I-

Preet Bharara:

And you think that’s a mistake?

Adam Winkler:

Well, I think it’s a mistake politically, right? Whether it’s a better public policy to get rid of assault weapons, that’s a separate question. And then that adds the question about whether we could do that, even if that were adopted as a policy. Like we’ve banned high capacity magazines in a variety of places and no one’s given up their high capacity magazines. So it hasn’t been particularly effective, and I imagine-

John Feinblatt:

15 states have restrictions on assault weapons now, and I think you raise, Adam, an interesting point about the issue ban. Ban is a terrible word. And so, one of the things that happened just this year was in Colorado where we spent a good bit of time with the legislature and with Governor Polis and came up with a completely different approach to assault weapons, which was to create a specialized permit.

And what’s the point of that specialized permit? It’s just, it’s an extra prophylactic to make sure that the people who are buying assault weapons are people who aren’t dangerous. So it’s not a ban, assault weapons can continue to be bought, but it’s got an extra layer of actually scrutiny, which I think is appropriate given the damage an assault weapon can do.

Adam Winkler:

But if we want to think of that as a public policy reform, we have to ask how effective is it at achieving its goals? And I haven’t seen any data on this, but my hypothesis would be that the percentage of assault weapons owners in Colorado who’ve obtained the special permit is, I could count them on one hand, less than 5%, certainly less than 10%.

So have we achieved a public policy goal or what we’ve done is just create another basis by which someone who just happens to be arrested for a totally different reason or their home searched for a totally different reason, will end up being brought on additional charges because they didn’t get the permit?

Rather than have a system in which everyone who has an assault weapon or nearly everyone who has an assault weapon, no law is perfect, has that special permit. I think that’s what we haven’t seen and what we are unlikely to achieve, even with a permitting kind of reform.

Preet Bharara:

If this is a culture issue and there’s not full agreement on that, then what should people be doing beyond fighting for different statutes, red flag laws and other things, and what you talked about in Colorado, John? Should we have TV shows that mainstream points that align with what John Feinblatt’s organization is trying to do? Do you need to have education of liberals? Is there value in that? To have the ones who are so anti-gun and anti-second Amendment, there’s some of them who understand a little bit more why some people think that the right to bear arms is inviolable. I’m just spit balling here, but how do you think about reform in that regard?

John Feinblatt:

I think we think a lot about legislation. I happen to think legislation is important. And if you look at the states-

Preet Bharara:

Well, it’s concrete. It’s concrete.

John Feinblatt:

Yeah. Look, if you look at the states with the strongest laws, they have lower per capita gun murder rates, but there’s so much more that you can do. One thing is holding the gun industry accountable. The gun industry, what? 25 years ago got blanket civil immunity. It had a chilling effect on suing them. If you think about where Ralph Nader would be, if the car industry had blanket civil immunity, we might be in a very different spot. If you think about whether the tobacco industry had blanket civil immunity, people might be smoking outside your apartment or your studio today, Preet. And then think about opioids.

So the question is what can industry do, whether we’re talking about the gun industry or we’re talking about other industries. The gun industry could do three simple things. They could develop and invest in palm print recognition. That means only the rightful owner could buy a gun. So what difference might that make? Well, that six-year-old who’s playing hide and go see couldn’t be killing themselves or their cousin. The burglar coming in to a house or to a car, that gun that they recovered would have no currency in the black market. They could re-weight actually the trigger, so a two-year-old or a three-year-old couldn’t actually discharge the gun. So that’s what the industry could do.

But look at social media. Social media has the same protections in some ways that the gun industry has through Section 230. There’s plenty that they could do. If you look at the Buffalo case, basically YouTube was a lesson on how to arm and kill somebody. So the industry has a lot that they can contribute here. But you got to go back to the basics, which oddly was the NRA’s beginnings, which is training people about safety and responsibility, not having this discussion about gun ownership or non-gun ownership, have a discussion about safety.

We just started training medical students on how to talk to patients about guns. Not a discussion about whether you should own a gun or not, but how do you safely store a gun? Medical students talk about bike helmets. They talk about the detergents under the sink. They talk about the gizmo you’re supposed to put in front of the electric socket, which I could never get off once I put it on. We need to teach people about behavioral changes and we have to talk about safety just as we’re doing in training people who are gun owners.

Preet Bharara:

Yeah. You anticipated my next question, I think, which is to what extent this is properly and strategically wisely framed as a public safety issue? Is it helpful? Is it not? Is it just an adjunct to everything else? Adam, do you have thought about that?

Adam Winkler:

Well, it is a public safety issue, but obviously I think for many Americans, it’s not just a public safety issue. It’s about dignity. It’s about the size of the government and the kind of people we want to be and the sort of independence that we want to have. But I think that the answers are just a lot harder to come by that will have an actual impact. I completely agree with John that one thing we need to have is a real commitment to training and safety and responsible gun ownership.

One thing probably John and I agree with, agree on is that the guns aren’t going anywhere. There’s over 400 million guns in America. We’re seeing 20 million background checks a year approximately, give or take a couple million. Guns are being sold and are very popular if not more popular than they’ve been in decades, in recent years.

So the guns aren’t going anywhere. And while I think reforms like handprint recognition or fingerprint recognition or firearm tracing mechanisms that go on the pin that make it easier to figure out where a particular casing found at a crime scene came from, those are good ideas, but recognize their limits. They don’t apply to the 400 million guns that are already out there. And so the six-year-old is still likely to get their hands on a gun that will enable them to shoot themselves, that someone who breaks into your car will still most likely get a gun that they can use again and use to commit a crime. So-

John Feinblatt:

Now, that’s like saying we shouldn’t restrict opioids because people still have them in their medicine cabinet.

Adam Winkler:

Well, I don’t think that’s quite the case because I don’t think they’re quite as popular. And if you take the opioids, they go away, right? They’re not replenishing. The firearms don’t go away. The firearm that you bought 50 years is still a factor.

John Feinblatt:

The black market’s still there. The black market’s still there.

Adam Winkler:

Yeah, there’s always going to be that black market. And there’s something to be said about recognizing the limits of public policy, which only I think goes to highlight the importance of what John said in terms of responsibility, training responsibility, a public education campaign to get people to have more responsible gun ownership. And in the absence of that, the kinds of reforms we’re going to see are not restrictions on guns, but their security restrictions.

Restrictions on how you get into a football stadium, restrictions on how you get into a library or a college campus or a private business of various sorts. And we’re seeing, we’ve seen a real increase in security in those spaces. I don’t think it’s the be all end all, but I think that’s what we are likely to see in light of the fact that we are unlikely to see the Supreme Court change its approach to the Second Amendment in the near future.

We’re unlikely to see any significant national gun reform that really makes a major difference in gun violence in America. It’s left to private businesses and other entities in the private sector to try to create some spaces where gun violence is less likely to occur.

Preet Bharara:

There are lots of areas where law and culture intersect that evolve. And these are very disparate, and I don’t mean to say that they’re like the gun issue at all. But smoking public health issue, a public health education campaign has had huge, huge impact. Drinking to a lesser extent, but that’s also come down by recent reporting. Something as different as openness to same-sex marriage, attitudes change, those are cultural issues, those are constitutional and legal issues.

Even something like public safety with respect to seat belts and openness to that kind of thing, where seat belts, when they were first introduced, were called an example of government being big brother. Those things evolved over time.

That’s my question is, is that possible with respect to gun rights or is that a different kind of persistent feeling that is strongly held in a way that is not susceptible to evolution and change like some of these other disparate issues are?

John Feinblatt:

I think, look, we have to recognize exactly what you said. This is a combination of a legal issue and a cultural issue. And to believe that there’s only one solution to this, that legislation is going to solve it or lawsuits are going to solve it alone is unrealistic.

I think we’ve seen a good bit of change here, but there’s so much more work clearly to be done. It’s why we’re making huge investments in behavioral change and responsibility, because in the end, I think laws matter. Lawsuits matter, but behavior change matters too. And that is about responsibility.

But look, think about marriage equality. An issue that I worked on when I worked in City Hall, the resistance was huge over years and people think, “Oh, it happened like this.” Well, it didn’t happen like that. It happened over a very long period of time, and some of it was a result of generational change. There was a huge, what I call, vertical help where you had young people talking to the people who were their parents and their aunts and their uncles, and their minds got changed.

And I think that we have to understand that this is not a sprint by any stretch of the imagination. It is a marathon. But I’m seeing very significant changes in more than just the 12 states that Adam pointed out. Mississippi and Alabama, Tennessee, outlawed Glock switches all in the past year in states that you would never think that might happen. So I think we just have to move on all fronts. We have to recognize the complexity of it, and we would be incredibly naive to not understand that this was the intersection of law and culture.

Preet Bharara:

So Adam, we just need a few more years of education and then people will evolve?

Adam Winkler:

I agree with all that, but we have to recognize that cultural change doesn’t only happen in one direction, the direction that you want it to happen in. So in the 1980s, we saw a huge push against drug use. Just say no, there was a big effort to try to create public support for drug regulation and drug prohibition. We end up 40 years later with marijuana being legal in a remarkable number of states.

I think most of us if we had had this conversation in 1985, and I said how majority of states would be legalized marijuana or moving towards legalization of marijuana, you’d say, “Absolutely not.” Because all of the cultural efforts of cultural reform were about reducing access to marijuana, reducing use of marijuana.

And one thing we’ve seen, I think that the gun rights movement has been very effective, that the gun enthusiasts and the gun culture has only grown in America. That there are more people who are gun enthusiasts today, who collect guns, who shoot guns as a recreational matter, who believe guns are a good thing for them and the safety of their homes, regardless of whether the public health data supports that or not.

And so I think it’s very possible that what we might see in the coming years, especially given the Supreme Court and where it is, given the state of American politics, we might see movement in the other direction where there’s more cultural acceptance of firearms. And it might even be the case that efforts by John’s organization and others to promote responsible firearms ownership helps to promote that underlying cultural acceptance of guns.

John Feinblatt:

Well, we’re for safety, but let me give you an optimistic sort of fact here. Couple of years ago, we have, as part of our grassroots organization is called Moms Demand Action. It’s got 11 million supporters. It’s probably the largest grassroots movement in the country, regardless of what topic.

And a couple of years ago, we decided that many of our advocates were ready to run for office. We’ve now elected 525 of our supporters to elective office. 50% of them are in state legislatures. If you look at the Democratic Caucus of the House of Delegates in Virginia, 20% of them are Moms Demand Action volunteers. We are running 750 of them in 2026. And we, a few years ago, started a questionnaire, like many advocacy groups have, for politicians to fill out. And 20,000 people have sought our questionnaire to fill out on gun rights.

So I think, look, the movement is effective. I think this one is a marathon, as I have said, but I think that where we have made the mistakes is making this a referendum on gun ownership. That has been a huge mistake. It’s why the first thing that every town did was try to ban the word gun control and turn it into gun safety, because that’s what we’re really about, safety not control.

Preet Bharara:

Final words from either of you on what you’re most optimistic about in terms of this issue?

John Feinblatt:

I’m most optimistic about the fact that people all over America are running on this issue. They’re winning on this issue. 14 states have five or more Moms Demand Action volunteers in their state legislatures. And I often ask myself the question, Preet and Adam, why are they successful? And I think there’s one reason, they’re authentic. They can answer the question, why am I running? Which so few politicians can answer.

Adam Winkler:

I’m most optimistic, Preet and John, that we’ll be having this discussion again in 10 years time and that things will not have really significantly changed. There will be change, but it won’t be all that significant.

Preet Bharara:

But that’s optimism?

Adam Winkler:

Well, I don’t know. I enjoy this conversation. I think we’re doing a public service.

Preet Bharara:

Oh, boy, but okay.

Adam Winkler:

But I do think that if we are going to see significant reform, John is on the right track, which is we need to see the change happen in American politics. We need to see a gun reform movement that is better at recruiting candidates, better at communicating with candidates. And when gun reform becomes the single issue, intensely held preference of a greater number of voters, that’s when we’re going to see more significant gun reform. And not until then.

Preet Bharara:

Adam, John, thanks for a smart, wise, insightful and spirited conversation. Really appreciate it. We’ll have you back. Thanks so much.

John Feinblatt:

Thanks, Preet. Thanks, Adam.

Adam Winkler:

Thank you. Thank you, both.

Preet Bharara:

Our gun violence panel continues for member of the CAFE Insider community. To try out the membership head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned, after the break, I’ll answer a question about what the US Marshals Service actually does and when congressional witnesses are required to take an oath.

Now let’s get to your questions. This question comes in an email from Russell. During a Senate Finance Committee hearing this week, Senator Ron Wyden asked that Health Secretary Robert F. Kennedy Jr. be formally sworn in before giving testimony, but the request was denied. Is it normal for those testifying before a Senate committee to not be sworn in?

So Russell, that is an interesting and indeed fascinating question, and I’ll admit even after serving in the Senate as a staffer for a number of years, it’s a little murky when and why committees decide to put witnesses under oath.

Here’s what happened in this case. On September 4th, HHS Secretary Robert F. Kennedy Jr. was scheduled to testify before the Senate Finance Committee. During his opening statement, Senator Ron Wyden, the ranking Democrat, said, quote, “Mr. Chairman, it’s unfortunate that I have to say this, but this is a witness who has lied to members of the Senate Finance Committee. I would ask now that the committee formally swear in Robert Kennedy as a witness,” end quote.

Unsurprisingly, committee chair Mike Crapo, a Republican, denied the request. So what’s the rule here? Federal law says the chair of a congressional committee is, quote, “Empowered to administer oaths to witnesses in any case under their examination,” end quote, but that authority is permissive. It’s not mandatory. That means the law doesn’t require chairs to swear in witnesses, and it doesn’t say when they should.

So in practice, it usually depends on the type of hearing. In my time in the Senate, I saw many witnesses sworn in for high stakes investigative hearings or confirmation hearings where the scrutiny was more intense. But in routine legislative hearings, it was less common. But by the way, there was often controversy even in confirmation hearings.

My first week as a staffer in the Senate is now 20-something years ago. And in that first week, the most important issue that was before the Senate Judiciary Committee was the confirmation hearing of nominee Alberto Gonzales to be Attorney General. And if I remember correctly, the same thing played out back then. The Senate was controlled by the same party as the President. Somebody asked that nominee Gonzales be sworn in. That request was rejected. There was a little bit of a backlash about it, a back and forth about it.

And again, I may have this wrong because it’s been a long time, but ultimately, he was not sworn in. As you might imagine, politics plays a role in this, shockingly, when the Senate majority shares the President’s party, like the example I just gave, committee chairs are often reluctant to swear in members of the President’s cabinet, and the minority for their part is more likely to demand it.

So what happened last week, Wyden pushing for an oath and Crapo refusing follows a familiar pattern. And there’s something else going on here too, which may not have occurred to you. There’s an optics issue as well. Think back to hearings that have taken place and what the most iconic photo is that comes out of such a hearing. And generally speaking is the sight of the witness standing at the witness table, right hand raised being administered the oath.

And sometimes it’s an individual witness. Sometimes it’s a line of witnesses like CEOs from the oil industry or from the pharmaceutical industry. And that’s a picture generally speaking, that make the witnesses look like targets, like they’re in the dock and they don’t much like it. And to avoid the administering of an oath is to avoid that picture.

Now as a legal matter, here’s an important point. Not being sworn in doesn’t really give a witness license to lie to Congress under a familiar statute that we’ve talked about on the podcast before, 18 United States Code Section 1001, it’s a crime to knowingly and willfully make materially false statements to Congress even without an oath. So why bother with the oath at all? §Because I guess the argument goes, it adds both symbolism and pressure. It underscores the seriousness of the proceeding, and may make any lie, feel like a direct violation of a solemn promise.

In any event, prosecutions for lying to Congress are rare. Michael Cohen comes to mind, but not that many other folks. Congress has no power to bring charges on its own. You may remember it has to refer cases to the Justice Department, and it’s unusual for an attorney general to prosecute a member of the President’s own cabinet.

So yes, the oath can add weight and encourage honesty. And when we’re talking about cabinet secretaries addressing matters of public health, you might think that extra pressure is worth having, even if the threat of prosecution is almost non-existent. My 2 cents at any hearing in Congress, whether it’s the Senate or the House, just swear in everyone.

This question comes in an email from Laura. Joyce Vance mentioned on a previous Insider episode that the US Marshals Service is a lesser known part of DOJ and even talked about them helping after tornadoes in Alabama. Can you explain a bit more about what the Marshals Service actually is and the kinds of things that they do?

I think that the US Marshals Service is a fairly well-kept secret, an unheralded element of law enforcement, and they often fly under the radar. But the Marshals Service plays an absolutely critical role in keeping the federal courts functioning and doing other things as well. You may not realize the US Marshals Service is the country’s oldest federal law enforcement agency and serves as the enforcement and security arm of the federal courts.

Think of the Marshals as the logistics and security backbone that keeps the justice system running. Their work covers a lot of ground, providing courtroom security and protecting judges, transporting and housing, federal prisoners, executing court orders, apprehending fugitives, running the Witness Security Program, which famously and incorrectly is often referred to in movies and television as the Witness Protection Program. And they manage seizing and forfeiting assets. So they really do quite a bit.

I’ve had a lot of experience with them in the seizure of assets and in some significant fugitive cases as well. And for the purposes of protecting the court, I was always very close to whoever the US Marshal was from my district. You may also not realize that US Marshals are appointed by the President and confirmed by the Senate. There’s one marshal in each of the 94 federal judicial districts, just like there’s one US attorney in each of those districts. And each marshal oversees a team of Deputy US Marshals who carry out the day-to-day work.

Who do the marshals answer to? Federal judges issue writs and orders that the marshals are legally bound to execute. And those orders have the force of law. But at the same time, the Marshals Service is a part of the Justice Department and operates under the authority and direction of the Attorney General. The AG can set policy, establish priorities and direct operations outside of specific judicial orders. For example, how to allocate resources or focus fugitive apprehension efforts.

In recent months, listeners have asked what would happen if a judge’s order conflicted with the Attorney General’s direction. The truth is, there’s no clear precedent. We couldn’t find an example. So the answer is we simply don’t know.

And finally, on Joyce’s example about disaster response, marshals aren’t typically first responders, but they can be deployed to assist state and local agencies under FEMA’s emergency framework. So after a tornado or other natural disaster, it could very well be a deputy US Marshal who shows up to help get a community back on its feet.

This next question came in a post on X from Sean, who writes, “Oh, boy, any advice to those who a few weeks now might learn they didn’t pass the bar exam, words of encouragement or perspective?” Sean, please don’t worry about it. Enjoy the next few weeks. I know from personal experience, taking the bar exam is not a pleasant experience and waiting for the results can be even worse.

Basically, to coin a phrase, it really sucks. I remember the experience very well, and by the way, you may think you failed, but you may not have. Because remember, depending on the state in which you take the bar, I took it in New York, the grade you need to pass is often a fairly modest percentage. So if you’re used to your whole life getting As or A minuses or B pluses, where you need to get at least 85% or 90% of the questions correct, and you felt like you did worse than that, that’s a new experience for you. But you still may very well have passed the bar exam where the threshold tends to be lower than that.

So let’s say you didn’t pass on your first try. Do not be discouraged. You’re far from alone. In fact, a lot of people failed the bar exam at first and still went on to achieve extraordinary success, and you might be surprised at who’s on that list. Michelle Obama initially failed the Illinois bar exam, but she went on to practice intellectual property law and of course later made her mark as First Lady of the United States.

Hillary Clinton, same thing. While she did pass the Arkansas bar exam, she didn’t pass in Washington. Even so, she built a thriving legal career, served as a US Senator, became Secretary of State, and twice ran for president.

And perhaps the most notable example, this is what I didn’t even know until we did the research, is President Franklin D. Roosevelt, he failed the New York bar exam on his first try, but passed the following year way back in 1907. I’m sure I don’t need to mention it, but he went on to serve three terms as president guiding the nation through the Great Depression in World War II. So failing the bar exam didn’t hold him back very much.

And the list doesn’t stop there, several governors also struggled with the bar exam. Jerry Brown of California, Pete Wilson of California, and Deval Patrick of Massachusetts, all failed before going on to lead their states. And on the city level, two of the most recognizable big city mayors, Ed Koch in New York and Richard Daley in Chicago also failed on their first try.

So Sean, I really do hope you pass the bar on your first try because it’s not fun to take it again. But if you don’t, take heart, plenty of successful people stumbled on their first attempt. It’s a bit of a silly exam, but they still went on to build remarkable careers. And also remember, the real test isn’t the exam, it’s what you do with the law and how you use it to make a difference.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, John Feinblatt and Adam Winkler. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @PreetBharara with the hashtag #AskPreet. You can also now reach me on Bluesky, or you can call and leave me a message at (833) 997-7338. That’s (833) 99-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, Stay Tuned.