Preet Bharara: From CAFE, welcome to Stay Tuned. I’m Preet Bharara.
Michael Waldman (clip): They had rights, and they balanced it with security and safety. That’s a pretty good principle to keep up with, but it’s really hard to draw lasting lessons from these long ago debates that they had. One hopes never to use them, but one loves to possess arms. The argument that the Second Amendment reflected, not what judges and scholars had thought for two centuries that it meant, which was the militias and this collective right. The people who started arguing, just about 30 years ago, that, “No, no, this is an individual right.” They went back, and they ransacked the history.
Preet Bharara: That’s Michael Walden, President of the Brennan Center for Justice. He’s the author of several books over the years, that speak to where we are right now. Including a biography of the Second Amendment, a collection of presidential rhetoric, and the history of voting rights in America. Before that, he wrote speeches for President Bill Clinton. Michael and I discussed what the founders and the supreme court say about the right to bear arms, the rise of the NRA as a political force, and voter fraud, or lack thereof. But first, let’s get to your questions. That’s coming up, stay tuned.
Preet Bharara: As a dad, I understand it can be challenging to talk to your kids about gun violence. You want them to feel safe, and you also want to make sure they understand what’s going on. Recently, Diane Rinaldo, from the New York chapter of Moms Demand Action for Gun Sense in America, appeared in a podcast, produced by CAFE’s parent company, Some Spider. The podcast is called, Scary Mommy Speaks. And this episode, in particular, gives insights on how to talk to your kids, and how to take action. It’s an inspiring look at this urgent issue. So, please check out the special edition episode of Scary Mommy Speaks on Gun Violence, wherever you listen to podcasts.
Preet Bharara: Before I get to your questions, I have some news. Stay Tuned is going back on tour. Will be in multiple cities this fall, including, Denver, on October 24th, with Shannon watts, Founder of Moms Demand Action. Detroit, on November 12th, with Dana Nessel, the Attorney General of the State of Michigan. And in Atlanta, on December 4th, with my friend and former acting U.S. Attorney General, Sally Yates. Head to cafe.com/tour, for tickets. That’s, cafe.com/tour.
Ben (Voicemail): Hi Preet, this is Ben calling from Australia. I listen to this show every week, and I read your book. I have a little question, it is about part two of The Muller Report. Can there be obstruction of justice, if there’s no proof of underlying crime? Lawyers, [Anne 00:02:38] Joshua Woods, and Senator Lindsey Graham, seem to have tested that they cannot. Thanks, and keep up the good work.
Preet Bharara: Thanks, Ben, for your question, and calling all the way from Australia. This is a question that keeps coming up, and I’ve addressed it before, along with Anne Milgram. And it’s just not correct. That, Joshua Woods and Senator Graham view, to the extent they’re suggesting there needs to be proof of an underlying crime, it is not correct. As we lawyers say, there’s black letter law to the contrary. Which means, there’s a clear basis for rejecting that point of view. And if you think about it, it makes common sense. The idea that there must be a provable underlying crime before you can bring an obstruction case relating to interference with the investigation of that underlying crime, is nonsensical.
Preet Bharara: That would mean then, that if you’re successful enough, in obstructing the investigation into some crime. Let’s say, murder or a campaign, finance violation or some other such thing, to the extent you’re successful at obstructing it, so the prosecutors can’t charge that crime, you can never be charged for obstruction either. So, it actually incentivizes people to be obstructors, and to be effective obstructors, if you buy that point of view. So, it doesn’t work as a matter of law, because it’s case after case, after case, that virtually every prosecutor in America has brought, on obstruction grounds, where there was no underlying case that was able to be brought. It happens all the time. And common sense would say, it’s silly to. So, let’s put that to rest.
Steve (Voicemail): Hi Preet and crew, I love the show. Thanks very much. I’m Steve, I’m calling from Bloomington, Indiana. Everyone I know is asking why the ICE raids in Mississippi, did not have anything to do with the owners of the facilities. We seem to remember that there were once laws to punish employers who hired vast numbers like this. And mechanisms put in place, so that employers could find out if potential hires were legal or not. Please let us know what’s up with all that. Thank you very much.
Preet Bharara: Steve, thanks for your question. Anne Milgram I discussed this at some length, on the CAFE Insider Podcast this week. And the reason that lots of people are talking about it, and lots of people are asking the question about employers, is because it’s a good question. There are various ways you can enforce laws, and various ways you can enforce the immigration laws. One article of faith among people who engage in law enforcement, and understand the power of the turns, is that, you go to the top of the food chain, not the bottom of the food chain.
Preet Bharara: And, if there are employers, who were willfully blind about hiring people without documentation, or, knowingly hire people without documentation, so that they could take advantage of low labor rates, they could take advantage of exploitation of people, who they might not have been treating well, and do all sorts of other things to increase their bottom line, the best place to look is to the employers. That’s been a feature of comprehensive immigration reform that was proposed going back to when I was working in the Senate, in 2006 and 2007. In fairness to the administration, the things that I’ve heard coming out of the mouths of officials at the Department of Homeland Security, is that, they are absolutely looking at the employers there as well, and the investigation is ongoing.
Preet Bharara: It is odd, that you would first round up hundreds and hundreds of people who have no documentation at these poultry plants, and not simultaneously be doing something, with respect to holding accountable, the employers. Now, as Anne and I also discussed on Monday, there were some argument that, in certain kinds of cases, it may be difficult to prove the intent of the employer. They say, “We went to a third party service, and we were told that the potential employees were legally in the country.” When you have this kind of scale of undocumented workers, it flies in the face of logic and reason, that, nobody knew anything about anything. And as I said, again, there was something called willful blindness, a doctrine in the law that allows you to prove intent, by showing that someone basically, willfully looked the other way.
Preet Bharara: It doesn’t always work, it can work, depends on the facts and circumstances of the case. One of my former colleagues in the U.S. attorney community, made another good point. Which is, if they’re really looking carefully at the employers, they might think about doing those charges first, so as not to tip them off. Now, it might also be the case that some of the folks who were employed, could become witnesses against the employers. And could state what representations they made and what the knowledge was on the part of employers, that they didn’t have documentation in the United States. And so, maybe that’s part of building the case, I’m going to wait and see.
Preet Bharara: But, if you don’t see any action, despite that really, really tough rhetoric and talk, and anti-immigrant verbiage coming out of the administration. At the same time, that, no employer ever suffers any consequence, or ever faces accountability, then you know there’s a significant amount of hypocrisy going on, and ineffective immigration enforcement. And then, the last point I would make, that a lot of people are also alluding to, is the fact that it seems like some Trump businesses have also been taking advantage of employees who are not lawfully in the country. And although that might be something pervasive that goes on in lots of businesses around the country, it’s another example of rank hypocrisy.
Preet Bharara: If you’re going to talk tough, and you’re going to walk tough, and you’re going to degrade the idea of immigration and immigrants in this country, particularly, from certain parts of the world, then you better be clean in your own house too.
Speaker 5: Hi Preet, man. This is [inaudible 00:07:38] from Jupiter, Florida. Love the show, love the book. Regarding Mr. Epstein, since he is now deceased, I wanted to know if the attorney-client privilege still exists between him and his criminal attorney. If he, perhaps, said to this criminal attorney, “Yeah, I did it.” Or, “This is what I did.” Can his attorney now come forward and say, “Here’s what Jeffrey Epstein said to me”? Thank you, Preet.
Preet Bharara: Thanks for the question, buddy. It’s good question. The answer is, the attorney-client privilege persists, even in death. The right to waive the attorney-client privilege, rests with the client, not with the attorney. And you can imagine their good principal jurisprudential reasons why the privilege should persist. Because, even though the client is deceased, as in the case of Jeffrey Epstein, there are things that he might have discussed with the lawyer, anybody might discuss with a lawyer, that if prosecutors or others, could pry from the lawyers, might implicate the estate, or other people associated with the deceased.
Preet Bharara: And so, the attorney-client privilege, which is the most sacrosanct privilege in many ways in the law, remains. But, the other thing that’s also true, is that, the same exceptions that apply in life, also apply in death. So, there’s something that people have been talking about, with respect to Michael Cohen, in months past, called the crime fraud exception. So, their communications, that were in pursuit of committing some crime or assisting in some crime, between a person and his or her lawyer, you can pierce that, if you can make a proper showing, and prosecutors can compel testimony about that information and about those communications. And maybe even receive documentation of those communications, under the crime fraud exception. Which, may or may not be applicable here. We just don’t know.
Preet Bharara: This question comes from a tweet, from listener, Miriam Hill. Who writes, “Inspired by your show, especially the one with Bryan Stevenson.” I was too. “I’m considering getting a degree in law, is it too late to do that in middle age? What advice do you have about where to go? #AskPreet.” It is never too late. People change careers midstream. Lots of people change careers, from the law to something outside the law. I’m at the moment, not practicing. I’m teaching, writing, doing these podcasts. My brother was a practicing lawyer, left the practice of law. There’s nothing that says you can’t go from some other career, into the law. So, if you’re inspired, I think, the most important thing to do is go with your inspiration.
Preet Bharara: There’s a lot of need, and continues to be, and maybe even more now than ever before, for good lawyers. And also, I would dare say, lawyers who have some experience outside of the law, who have lived life, who have some perspective. Whatever your current career is, I would absolutely urge you to go. I don’t have any particular advice about where to go. I’m partial to the law school I went to, and the law school I teach at, which we’re both in New York. Go to some place where you’ll have fun. But, any place you think you can get a first class education, and some training in craft. So that you can practice law in a way that hopefully, given that your reason for this is inspiration from Bryan Stevenson, that you’ll do some public interest law. So, I would pay attention to what kinds of clinics, the law schools you’re applying to have. So you can begin to perfect that craft even before you leave law school. Good luck.
Preet Bharara: So, as you might imagine, many many questions this past week, about guns, about gun reform, about mass shootings, and about the Second Amendment itself. For example, there was a tweet from Sean Duncan, who asks, “Can we have an analysis of what happened to diminish the well regulated militia part of the Second Amendment, to the individual?” Aditi Chang, writes, “Love your show, listening to you and Anne discuss gun rights on the Insider clip. My question is this, is the right to own a gun more sacrosanct than the right to stay alive at school, at a mall, at work, at a park?”
Preet Bharara: There’s another question, from listener, Olivia A.G., from Paris, not Texas. “Why can’t the average U.S. citizen possess a nuclear weapon, or two, or 50?” All good questions, and all very resonant and relevant this week. But, I’m not going to answer them. Instead, listen to my interview with Michael Waldman, who’s an expert on all these things, and answers a lot of these questions, and more.
Preet Bharara: My guest this week is Michael Waldman. He was Director of Speechwriting for President Bill Clinton from 1995 to 1999, responsible for nearly 2,000 speeches, including both inaugurals, and four State of the Union addresses. He’s also an author of several books, including a volume on presidential rhetoric, the history of the Second Amendment, and the fight for voting rights. Topics that are extremely relevant in 2019. He’s President of the Brennan Center for Justice at NYU School of Law, a nonpartisan policy institute. Michael is also a friend and colleague. As you may know, I have been working closely with Michael and others at the Brennan Center, on the national task force on the rule of law and democracy. That interview is coming up, stay tuned.
Preet Bharara: Michael Waldman, welcome to the show.
Michael Waldman: Great to be with you.
Preet Bharara: So, indulge me for a moment, in saying how pleased I am that you’re on the show. We go back a long way, actually, and work together, to this very day, on issues that are important to democracy. The task force on democracy that I co-chair with Christie Todd Whitman, is done through the Brennan Center for Justice, of which, you are the president. So, thank you for helping to save democracy.
Michael Waldman: I guess that, maybe I need something else on my resume. It’s a fight well worth fighting, and it’s been great to work with you on all these things, ever since. I first saw you fighting against voter suppression at the Justice Department.
Preet Bharara: No, and even before that, which we’ll come to a little later in the talk. This myth of voter fraud, where, when I was working for Senator Schumer in the Senate, we did a hearing through the Rules Committee, on just these questions. I remember working a lot with you and other folks on your team at the Brennan Center, and those myths still persist. So, something that’s been on everyone’s mind a lot, since the shootings in El Paso and in Dayton, the Gilroy Garlic Festival, guns. You are an expert in a lot of things. They often say, “Michael Waldman is a gentleman and a scholar, but a scholar of multiple issues.” You wrote a book, about five years ago, called, The Second Amendment: A biography.
Preet Bharara: And I want to get into, because we get a lot of questions about this. And it’s good to have an expert on the origins of the Second Amendment, what the debate was like. What does it actually mean, based on the words in it? How does it come to mean something different? What is the role of the NRA? But, before we get to any of that, you have often pointed to a quote from Lincoln, that you like, and I like it, too. It’s something that he said, in debating slavery, in 1858. Lincoln said, “Public sentiment is everything. With public sentiment, nothing can fail. Without it, nothing can succeed.”
Preet Bharara: Now, it seems to me, that there has been for a while now, public sentiment in favor of certain kinds of restrictions on guns, and common sense gun reforms, that has not translated into any kind of action. What do you make a public sentiment, where it is now, in connection with the gun debate?
Michael Waldman: You’re right, that the general and broad public sentiment is strongly for common sense gun laws, of the kind that we’re familiar with that have not been able to pass, like expanded and universal background checks, and things like that. Public opinion really has shifted somewhat on guns, and this was part of how we got this new interpretation of the Second Amendment. If you look, 20, 30, 40 years ago, there was really wide public support for what we would regard as really strict gun laws. And then, over time, that receded. It came along with people’s general distrust of government. What’s happened in the last few years, and really, in the last two or three years, is, the public is again, much more open than it has been, to pretty strong action on guns.
Michael Waldman: But the problem for those who want stronger gun laws, is it’s always been the support for gun restrictions or gun safety restrictions, is broad, but shallow. And the NRA and gun rights supporters, who are a smaller and smaller segment of the population, are very intense. Only 3% of Americans own half the guns in the United States. And the NRA, it claims to have a few million members, although, who knows what the real story is? But that’s way fewer than AARP or a lot of other very powerful interest groups. But it’s the intensity, it’s the fact that they will vote you out of office if they can, that has given them unusual strength.
Preet Bharara: What do you think of the intensity of sentiment on the other side? In the wake of Parkland, and actually going back to Newtown.
Michael Waldman: When the Newtown massacre happened, right after the 2012 election, it came after a period in which, basically, Barack Obama never mentioned the issue of guns. And never did anything on the subject, except for actually signing a law that loosen federal law a little bit. Democrats, at that point, had had a muscle memory, that they needed to stay away from the issue. And beginning with Newtown, there’re began to be a change, especially seeing the mass shootings and the terror attacks that come with it. And, over time, I think, you can trace from that really awful day, in 2012 to now, considerable growing strength for support for action on guns. I really thought that the Parkland students were a real breakthrough, because they were a new generation of people, who just weren’t going to put up with a lot of the same compromises, maybe that their elders did.
Michael Waldman: And just like with environmental issues, or marriage equality, sometimes you can have… when you leap generations, suddenly, the public opinion can shift. So, I think there’s a change. And, a lot of democrats believed, Bill Clinton believed, that the Democrats lost the house in 1994, because they passed an assault weapons ban. It’s not clear that it’s really true, but they really believed that.
Preet Bharara: Probably, it didn’t help them.
Michael Waldman: It did not help that. And Al Gore, a lot of people believe, lost states Democrats had previously won, because of the gun issue. Hillary Clinton began talking about gun safety, in an unapologetic way, for the first time. Now, maybe that hurt her in a lot of red counties, that she unexpectedly did worse, relative to Trump. But, I think that the politics of this is shifting a lot, and you can see it in the candidates and how they’re talking about it now.
Preet Bharara: So, when people are down and depressed, and were after Newtown. Because, in the aftermath of that, really, really, among the range of horrible tragedies, unspeakable, given how many young small children there were. The fact that there wasn’t immediate legislation passed, or immediate movement to change things, has gotten a lot of people down. You’re not as pessimistic, because you think that all these things gather force over time, when we look back on this point in history, 20, 30, 40 years from now. Do you think it really was a shifting of the ground?
Michael Waldman: I really do think it’s a shifting of the ground, it just doesn’t happen immediately. And you remember, after Newtown, they brought a bipartisan universal background check bill to the floor of the Senate, it had supportive 90% of the public. And it was defeated, not because it didn’t have public support. It had a majority in the Senate, but because of the filibuster. And I think they have to keep at it, and keep at it. And you’re seeing, in the reaction to these shootings, which seem to have broken through in a way, partly because one would never want to call something, an everyday run of the mill mass shooting.
Michael Waldman: But, in El Paso, you had not just a mass shooting with the same weapon of war that is used in so many of these other ones, but very clearly, a political terror attack, linked to anti-immigrant sentiment, linked to white supremacy, and linked to a lot of the rhetoric from the President, that has really cracked through logjam here. And I would bet that there will be some action, but it may not happen right away. It didn’t happen, obviously, on all these other tough, tough issues in American history.
Preet Bharara: Can we go back, about 228 years, to the Second Amendment? Which, I believe, was adopted in 1791. Do I have that right?
Michael Waldman: Yes.
Preet Bharara: Okay. All right. You didn’t know there’s going to be a quiz.
Michael Waldman: That’s the kind of barbat I used to lose before I had the internet.
Preet Bharara: I’m told it was 1791. Let’s look at the text of the Second Amendment. And then, I’m going to ask you a lot of questions about it. The Second Amendment 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.” What did that mean, at the time it was adopted?
Michael Waldman: Well, that’s the thing, is, it is really hard for us to put ourselves back in the minds of the people then, let alone, to try to make constitutional decisions now, or public policy decisions now, based on our misunderstanding, perhaps, of what happened back then. At that time, the militias were really, really important part of the new country. That part of the amendment, the first part about the well regulated militia, was really important to the colonists and to the new revolutionary nation. But they were not like anything, any of us have now. Every white adult man, from age 16, up, was required to be in the militia. And was required by law, to own a gun and keep it at home, and bring the gun in for your military services. This is like the Minutemen at Lexington and Concord.
Preet Bharara: So, they had AK-47s, AR-15s, back then?
Michael Waldman: They had bazookas and low grade nukes. No, they had these muskets that-
Preet Bharara: Muskets?
Michael Waldman: … missed most of the time. They were military weapons.
Preet Bharara: And they were hard to reload.
Michael Waldman: They were hard to reload, and not very effective. They rusted easily, and they were dangerous to own, let alone, to use. But, the people thought the militias were this bulwark against tyranny. They were really, really focused on the danger of what they called the standing army. In other words, an army of paid soldiers, just like the red coats. And when the constitution was written, it did not bar having a standing army, as a lot of people wanted. And there was a huge controversy when it was released, and when the states had to ratify the constitution. And one of the big concerns that people had, was this new strong central government, would crush the militias of, bring it your weapon from home citizen, citizen farmer soldiers.
Michael Waldman: And one of the purposes of the Second Amendment was to make sure that these militias couldn’t be crushed. And in fact, when James Madison introduced the bill of rights, a number of the states had said, “We want a bill of rights as our condition, in effect for ratifying the constitution.” Madison, who was not actually for there being a bill of rights. He was the guy who had written the constitution and wrote the federalist papers to argue for why it was okay. But, in order to get elected to Congress himself, in his own congressional district, he had to come out for there being a bill of rights. His original version of the Second Amendment, made it very clear what its purpose was. It had a conscientious objector clause.
Michael Waldman: It said, Well regulated militia, the right to keep and bear arms. But, if you don’t want to do your military service in person, you can get somebody else to do it for you. It was clearly about this military system. So, if we were to go back in a time machine, people ask me, “So, does the Second Amendment reflect an individual right, or the militia’s?”
Preet Bharara: I was going to get there.
Michael Waldman: Sort of both, and neither. It reflects an individual right to fulfill the duty to serve in the militia. Our question would mean, nothing would be baffling to the founders, just like their answer, really, is baffling to us. We can’t really go back and draw that many lessons from it. Except for this, it was always about public safety. There were always guns, there were lots of guns, people had a right to defend their home. But, there were gun laws, all the way through. At the time of the Second Amendment, everything from, it was illegal to keep a gun in Boston and in your home, a loaded gun, because they tended to blow up and burn down the neighborhood. In Pennsylvania and other states, they had a registry of guns. And they actually, at one point, recalled all the guns in the state, because they needed to check and see, who had their military weapons.
Michael Waldman: One of the things I learned about, after I worked on this book. Which, I regret not knowing that the time was in 1824, I think.
Preet Bharara: I’m very prepared, Michael, I have the tweet-
Michael Waldman: Excellent.
Preet Bharara: … that you said a year and a half ago. Where, you tweeted, “Second Amendment, Madison and Jefferson voted to ban guns from the University of Virginia campus, 1824. Too dangerous, they thought. The constitution is no bar to same gun laws and policies.” That’s interesting.
Michael Waldman: Yeah. No, they didn’t think this was a massive violation of gun rights, to say, you couldn’t bring… It actually literally says, the policies of the University of Virginia, there were eight people on the Board of Regents. One of the others, I think, was John Jay. It wasn’t like they were ceremonially signing on to something. And it says, “We’re banning guns and swords from campus.” Presumably, because that people were doling, or something like that. They didn’t think that having a law like that, a rule like that, violated gun rights. Now, there were a lot of guns and they were using guns to keep slaves from rebelling. It’s not like it was some pristine time.
Michael Waldman: But, all throughout American history, gun rights and strong laws, have gone hand in hand.
Preet Bharara: It is true that people get it wrong, when they say, the Second Amendment is about hunting. Some people like certain kinds of weapons, and they say, they use them for hunting. But, the real debate, going back to the founding, is about public safety, and about tyranny. Correct?
Michael Waldman: It’s about public safety, and about tyranny. It was political. Ironically, in a way, military weapons were more like what they had back at the time of the Second Amendment, than for hunting. It’s just that the founders, when they wrote the Second Amendment, did not necessarily think that everybody could be their own militia, and decide for themselves, what gun to have or who to shoot it up. I mean, they had the constitutional convention, because of Shays Rebellion. Which was a rebellion in western Massachusetts, by farmers who didn’t want to pay the debts that they owed. And it was pretty clear to them, and then, to George Washington, later, when he was president, that, from now on, the militias were organized by the government. Not today’s version of radical right activists.
Preet Bharara: So, let me go back to this point that you raised, about, whether the Second Amendment confers an individual right, or some collective right. Because, a lot rides on that answer. And so, if you go back to the text, yes, certainly, it says, a well regulated militia being necessary to the security of a free state. That’s there, it gets overlooked a little bit in modern times. But, does say, the right of the people to keep and bear arms. Is there not something in that phraseology of the people to keep and bear arms, that suggests an individual right?
Michael Waldman: Yeah. I mean, they were not only thinking that some government office somewhere would have the guns. But, again, and we have to try to transport ourselves back into a time, where there was basically a universal military draft for an entire adulthood for white men, and they were required to own a gun, and bring it in. And that was seen as a power of the people. I did look at the way the phrase, the people, was used in the ratification conventions, and I was doing the research for this book on the Second Amendment. It was so amazing, because, they wrote down or transcribed. They didn’t have C-SPAN, they didn’t have tape recorders. But, so much of it was transcribed.
Michael Waldman: Whether it’s Madison’s notes from the constitutional convention, or the very public debate in the ratification conventions, in places like Virginia. When they talked about the people, typically, what they meant was the body politic. And there’s even a question, a lot of the latter day, gun rights advocates, including Justice Scalia, when he wrote about this. Say, well, bear arms, that means, carry, bear means carry. And that means, it must be small enough to carry around. So, therefore, that must mean it is a pistol, and they used dictionaries. But, it is clearly the case, when you look at all the uses of the phrase, bear arms. In the colonial and revolutionary and constitutional era, what that meant was military service. And it’s very interesting.
Michael Waldman: There are two professors from Utah, law professors from Utah. I believe, from Brigham Young, who were for the individual right, and then, they did a linguistic analysis. And realized, bear arms was a term of art, meaning, serve in the military. Again, I think that we’re forced to be spending this time like, parsing what the James Madison’s notes mean, and what are the discarded letter that some guy wrote to another guy mean, to figure out what our constitutional rights mean today. And basically, no other country in the world, would dream of doing it that way. Ultimately, the basic principle, which was, they had rights and they balanced it with security and safety, that’s a pretty good principle to keep up with. But, it’s really hard to draw lasting lessons from these long ago debates that they had.
Preet Bharara: And you point out, in the book and elsewhere, some other funny misrepresentations of statements made by important historical figures, for example. And I think they put this on a T-shirt, from time to time. Thomas Jefferson’s words to George Washington in the 1796 letter, where Thomas Jefferson says, “One loves to possess arms.”
Michael Waldman: “One hopes never to use them, but one love to possess arms.” And the argument that the Second Amendment reflected, not what judges and scholars had thought for two centuries that it meant. Which was, the militias and this collective right. The people who started arguing, just about 30 years ago, that, “No, no, no, this is an individual right.” They went back and they looked at all the history, and they ransacked the history. A lot of them pulled quotes out of context, like people who wrote movie posters. A bad review, but you find the positive word, and you put it on the poster.
Preet Bharara: It’s okay to do that with book reviews.
Michael Waldman: Book reviews, yes. And words are good, too. But, they were lovely articles. And many of them, it turned out, were paid for by the NRA, who were trying to move public opinion on this. Have quotes like that quote from Thomas Jefferson, “One loves to possess arms, but one hopes never to use them.” And it’s sort of, “Aha, look at that.” And you can see all these scholars getting very excited about this. If you look at the actual letter, he was writing to George Washington. He said, “Remember when I was Secretary of State, I gave you that batch of letters on that controversial decision, can I have them back? I think I’m going to get criticized for this, and I want to have them in reserve. One loves to possess arms, but one hopes never to have to use them.” It was a metaphor.
Preet Bharara: For having arguments.
Michael Waldman: For having letters in his drawer, that he wanted to use to rebut somebody who was criticizing him. The quote from Patrick Henry, “The great object is, let every man be armed.” That was the book that was the scholarly book that they all have relied on, has the title, Let Every Man Be Armed. And the Patrick Henry professorship at George Mason law school is funded by the NRA. And you can see it on T shirts, and you can see it when the supreme court eventually ruled on this, there was a banner in front of the supreme court, saying, “Patrick Henry the great, give me liberty or give me death. Let every man be armed.” But, once upon a time, I guess, you needed a library card at the Library of Congress, to look this stuff up. But, it’s all on the internet now.
Michael Waldman: It was from the ratification convention in Virginia. James Madison is there, defending the constitution, line by line, and Patrick Henry is opposing the constitution. And Patrick Henry says, “What about this militia provision? They’re going to disarm our militia.” And Madison says, “No, no, no…” He makes it up on the spot. He says, “No, this is both the state of Virginia and the federal government, both have a duty to arm the militia.” And Patrick Henry says, “What? Both of us? Both the federal government and the state have a duty to arm the militia? Do you know how expensive that is? Two sets of [inaudible 00:32:42], two sets of vests and bullets. The great object is, let every man be armed, but only once.”
Michael Waldman: So, it was rather than being some cry of freedom. It was a local politician complaining about wasteful spending by Washington, when it was actually Washington himself, not Washington the town. So, there’s a lot of, everybody goes back and plucks these founding father got you quotes. And it’s hard to not do the same thing. But, the history is not what the NRA says it was.
Preet Bharara: So, let’s summarize a couple of things. Your analysis has been, that there’s nothing indicated the time of the debate, or, in the language of the amendment, that it’s an individual right. We’ll come to the Heller Decision more recently, later. Which, Anne does some of that. But also, based not just on your UVA find, from 1824. But also, in other aspects too, it has always been true on to the Second Amendment, no matter what you think of it. That, significant gun regulation is permitted, okay, and wise.
Michael Waldman: Both are right. If you look at [Max’s 00:33:48] notes from the constitutional convention, you look at the debate on the floor of the U.S. House of Representatives, where they marked up and wrote the Second Amendment in public. If you look at the records of almost universally, of the ratification conventions for the constitution, there’s not a word about the Second Amendment reflecting an individual right to gun ownership for hunting, or self-protection, or anything other than service in the militia. They had guns, they felt they had a right to have the guns, but it was always in the context of public safety.
Michael Waldman: And that really, that dual set of values, really, is what happened throughout the rest of the country’s history. We had obviously guns, they spread. But, there were always gun rules and gun laws. One of my favorites is, we think of the Wild West and Dodge City, as the archetypal, Wild West town. And there’s a photo from Dodge City, I think it’s in the 1870s. And it looks like a movie set, it looks like the backlot at Universal Studios, Wild West town. It’s dusty main street, and there’s saloons on either side, and there’s posts for the horses. And then, in the middle, there’s a sign, and it says, “Welcome to Dodge City, firearms prohibited.”
Michael Waldman: They understood that they were dangerous. And for two centuries, there were debates about gun laws, but it was understood that the Second Amendment did not recognize some kind of unlimited individual right to gun ownership. Richard Nixon’s chief justice, that he appointed, Warren Burger, rock-ribbed conservative, said that the idea that the Second Amendment represented an unlimited individual right to gun ownership, was, “fraud” on the American people. So, that seems a long time ago.
Preet Bharara: It does. So then what happens? Both through scholarship, and perhaps, the NRA. In recent decades, there has been a shifting, as you’ve been describing, of a certain constituencies view of the Second Amendment, which then culminates in the Heller Decision. How did that come about?
Michael Waldman: It’s an amazingly, I think, a really interesting story of how constitutional change, how legal change, policy change, really happens in this country. Because, it goes back to that quote you mentioned from Abraham Lincoln, that, public sentiment is everything. About 40 years ago, the NRA and other gun rights advocates, launched a constitutional campaign to change what people thought the Second Amendment meant. The NRA has been around since right after the Civil War, it was originally for training and marksmanship for military preparedness, then it became known as the voice of hunters and sportsman in-
Preet Bharara: And these are support for all manner of gun regulations?
Michael Waldman: Right. When there was a federal law in the 1930s, to deal with the assault weapons of their day, which were Tommy guns. Which were used by bank robbers, using that newfangled technology, the getaway car, and they passed to federal law. The NRA testified, and was asked, “Can you think of any constitutional provision that might affect this?” And they said, “No, we can’t think of any.”
Preet Bharara: So, long time ago.
Michael Waldman: Longtime ago. And the supreme court ruled repeatedly the same way. But, the NRA really launched itself in a different direction. And it was, again, it was about politics. The NRA in the mid 1970s, the leadership of the NRA announced that it was retreating from politics. And that it was moving its headquarters, from Washington, D.C., where there was a building, sportsmanship and training were on the front of the building. They were moving to Colorado, to signal, they retreat from politics. And at their convention, it was still known as the Revolt in Cincinnati. The membership voted out this leadership, and voted in a much more dogmatic, much more ideological and intense leadership. And they reconstituted themselves around this constitutional right. And they call themselves now, the oldest civil rights organization in the United States.
Michael Waldman: And if you go to the NRA headquarters in Virginia, you go into the lobby, and on the wall, not surprisingly, is the text of the Second Amendment. Except, they’ve edited out the part about the militia. They just have two dots, I think they’re three dots. They just cut that part out. And so, they waged a long time campaign, they started with scholarships-
Preet Bharara: [crosstalk 00:38:02] why?
Michael Waldman: Why did that happen?
Preet Bharara: People have to demonize the NRA, if you’re a certain type of person. And some people hail the NRA, if you’re another type of person. Someone get to, what was going on in the heads of leadership then? Why launch this program and this agenda?
Michael Waldman: Well, I mean, I think, in terms of, as a strategy, a lot of them really deeply believed it, and they understood that it was much better to be fighting for a constitutional right and freedom, than on the terrain, that the gun issue in the wake of the Kennedy assassination, the King assassination had been fought on.
Preet Bharara: So, are you saying that their goals did not change, they just adopted a new rhetorical strategy or with the goals different too?
Michael Waldman: The goal became much more maximalist, and much more, as Charlton Heston, the later president of the NRA said, “You’ll pry my gun from my hands, when you…” “You’ll get my gun from my cold dead fingers.” They said, “No gun laws.” That, “Any gun law is a violation of my freedom of individual rights.” And I really think it happened as part of an overall backlash, that saw a lot of big traditional American institutions turn way to the right. Whether it was the business lobbies in the Chamber of Commerce, or you had the Sagebrush Rebellion at the same time, having the western states and public lands, you had a real revolt against government. And this was part of it. And became used to be that the NRA was backed by Democrats and Republicans.
Michael Waldman: John Dingell, who recently died, was a big NRA supporter. He was a Democratic congressman from Michigan. The NRA became a much more ideologically conservative organization, and really, part of a very tightly woven political operation on the right.
Preet Bharara: At the same time, it shrunk, in terms of its political base, it gained in political power. How does that work?
Michael Waldman: It gained in political power, in part, because it got some scalps. It took down some members of Congress, it showed that its voters were intense and passionate and willing to vote just on that. And whenever I go around speaking about this, very often, people ask, “Well, isn’t this about money? Isn’t this the campaign contributions the NRA gives? Or, even, isn’t this just the gun companies?” And I really don’t think that’s true. I may be wrong, but I really think it’s the intense passion of this shrinking, but increasingly, vocal minority of people. First of all, gun crime, even as we’re focused on mass shootings, and the fact that we have way more guns in this country per capita than anywhere else, and more gun deaths. But, gun crime is actually down, along with all other crime.
Michael Waldman: The number of people who own guns is way down. Fewer people serve in the military, fewer people hunt. The smaller the rural areas are, the fewer people have this traditional way of life. But, the fewer people who have guns, have way more of them, they’re like arsenals. They have many more assault weapons, many more weapons of mass destruction in effect. Gun ownership has become less of a tradition, and more of an ideological statement.
Preet Bharara: So, then, we get to the supreme court case that we’ve been mentioning that people talk about. Which was only 11 years ago, I think, in 2008, District of Columbia versus Heller. And Justice Scalia wrote the majority opinion, which rejected all of your reasoning, and all of your scholarship about the debate on the Second Amendment. And basically, said that it does confer an individual right.
Michael Waldman: Well, he did reject it. He basically skipped over the part about the militia, just the same way the NRA does in its lobby, in the version of the-
Preet Bharara: He’s on the court. So, assume force.
Michael Waldman: Heller was, in 2008, it was the first time that the U.S. Supreme Court ever ruled that the Second Amendment reflected an individual rights to gun ownership for self-protection, for anything other than militia service. And it followed decades of, first, scholarship, and then, moving public opinion. And you saw in the polls, people began to think, “Hey, this is an individual right.” And the organs of government began to change their opinion, the Justice Department changed its opinion. And it was only at the end of decades of this kind of changing of the public mind, did they go to court. And at that point, the decision kind of fell like a ripe apple from the tree, it wasn’t ultimately that controversial.
Michael Waldman: Scalia said, this was his great originalist opinion, and it was five to four. And it said, yes, it is an individual right. It was relating to ownership of a handgun in the home for self-protection. So, very different from musket, for militia-
Preet Bharara: But, it’s a small core principle. Let me ask you this, take it outside of a discussion of what the Second Amendment meant, and what the law says, and what the framers intended. And just ask this question, what is wrong with there being an enshrined principle, that, a country, namely, America, can choose to adopt? That every American has an inviolable right, in some limited way, to have a firearm for self-protection? Is there something wrong with that value or principle?
Michael Waldman: I don’t think there is. In other words, that is pretty deeply ingrained American view. We are a nation of individualists, we believe in people having the right to protect themselves and their families. And that’s not at odds with having strong gun laws. I thought that Scalia, in the Heller decision, in claiming that that was based on what the founders wanted, that was the part that was really not really accurate.
Preet Bharara: So, you object to the reasoning, but you don’t object, as you sit here, to the principle that that can be a reasonable, inviolable right.
Michael Waldman: We think that we have a right to protect ourselves. And it doesn’t bother me, that people, in one way or another, have a right to protect themselves, especially in their home. But, that is not at all at odds. And so, in that sense, there’s an individual right of gun ownership. Again, that doesn’t mean that that’s what James Madison thought he was putting into the constitution at the time, but we’ve expanded our notion of rights in a lot of realms, since then. But always, along with responsibilities. Always, along with public safety and protection. And even the Heller decision, said, “Yes, it’s an individual right. But, nothing in here should be construed to mean that you can’t have strong gun laws.” And it listed a bunch of different types of existing gun laws or traditional laws, or if there’s an unusually dangerous weapon.
Preet Bharara: Scalia embraced the concept of gun regulation explicitly in Heller.
Michael Waldman: In a very explicit way. And at the time, it was a big deal what the court stated this individual right, it seemed like a constitutional earthquake. But, what happened afterwards, there were hundreds of cases, dozens of rulings by courts all across the country, interpreting what this new doctrine meant. And overwhelmingly, they upheld gun laws. They said, yes, it’s an individual right. Some of them, grudgingly, some of them, enthusiastically. But, society also has a right to protect itself. And there were some instances where things were, if they went too far, were struck down. But, basically, the lower courts, meaning, lower federal courts and state courts all over the country, said, “Yeah, it’s an individual right, and that’s great, but you can still have strong gun laws.” And that’s been the case for the past decade. And the question is, will it stay that way?
Preet Bharara: So, Heller, which a lot of people don’t like, wasn’t really the death knell of gun regulation, as you point out. It actually gave some cover to some folks. And so, I want to ask you, what the practical consequences are, the current state of the law, in the wake of Heller. It essentially says you have this inviolable right for self-protection, by having a firearm in your home. Does that mean that if a state decided that, based on its studies, findings, that, the amount of robberies or burglaries that were prevented, and the amount of self-protection that actually happened, because of this right, was X? 10 robberies foiled, 17 homes protected, because of these incidents. But on the other hand, as hypothetically, 4,000 children were killed by accidental gunshot wounds, because they found a non-secured firearm in the home, that was essentially there to protect the home.
Preet Bharara: And so, the state decides, in that particular instance, in the course of one year, 17 lives ostensibly saved, again, I’m making these numbers up, 4,000 lives lost, we’re going to ban all firearms, we’re going to ban ownership of all firearms. That would be struck down immediately, right?
Michael Waldman: I think it would be struck down, because-
Preet Bharara: Because of Heller.
Michael Waldman: Because of Heller, because it’s a ban, and it’s out of proportion with… What the courts have done, as they do with most constitutional rights, like the First Amendment, they say, well, this is a fundamental right. They ask, is the right affected by the law? And then, is this a narrowly tailored way to deal with it? And they don’t use what’s called… Generally speaking, they have not used what’s called strict scrutiny in the First Amendment context, that, it has to be. It really passed through a very narrow set of criteria. They’ve used other standards to balance these things. And they have not allowed bans on some things. But they’ve allowed very extensive restrictions, regulations, and things like that.
Michael Waldman: One of the challenges is that, one of the things the NRA succeeded in doing, was cutting off the ability of the National Institutes of Health, or the Center for Disease Control, or federal regulators, to even look at this stuff, the way they do for toasters, or let alone cars. And so, that kind of data is missing, just at the very moment, when it might actually be most necessary and useful in the courts.
Preet Bharara: Is it your view, that other than this carved out territory from Heller, that other gun regulations are fair game, and it just depends on what is able to be passed in the state, or federal. I mean, it seems to me that the red flag laws and background checks and assault weapon bans, those don’t rise or fall on the constitutional question.
Michael Waldman: Well, I think that, and most other judges would agree with you on that. And the question now is, do the justices on the U.S. Supreme Court, agree with that. Supreme court, during this period when all these gun cases were being adjudicated in federal courts, all across the country, the supreme court turned down every opportunity to hear another Second Amendment case. They did a case in 2010, to apply Heller to the states. But, after that, they turned down every opportunity. And nobody really knew why was it, because, Justice Kennedy didn’t want to do it, nobody knew where the votes were. But, whatever the reason was, they chose not to.
Michael Waldman: Well, now, there’s a new majority on the supreme court. And you mentioned a few things. I think, everybody agrees that background checks, certainly, don’t fly in the face of Heller, it’s pretty explicitly the case that you ought to be able to have the ability to make sure that people who shouldn’t have guns legally, don’t have them. Red flag laws, I’m interested in what kinds of constitutional issues come up there. Because, these are, as I understand it, in 17 states, with the support of the NRA, and they basically let the government come in and take away your gun without necessarily that much due process. And I wouldn’t be surprised if there’s some litigation around what kind of rules there are about what the government can do. But, the assault weapons ban, which again, the reason the assault weapons ban has not been on the table, is politics, not the Second Amendment.
Preet Bharara: That’s why public sentiment comes right back into it now.
Michael Waldman: That’s right. But, 10 courts of appeals have said, around the country, that, when states, for example, pass an assault weapons ban, it’s constitutional, because it’s so dangerous. One judge issued a very strident dissent from that, in a case called Heller Two, Brett Kavanaugh. He said that, in fact, an assault weapons ban, the D.C. assault weapons ban, was not constitutional. That it was not appropriate to balance the individual right with public safety. That you have to, under Heller, look at history, and you’ve got to go back and look and see what the rule was back in the old days.
Preet Bharara: Before, there was an assault weapon.
Michael Waldman: Yeah. And I think, it would not be impossible to imagine that this was basically his essay for his job application. To signal, “Hey, look how pro-gun I am, folks. Think of me for the supreme court.” But, it was really outside the mainstream of what Republican and Democratic nominated judges have said on this. And now, for the first time, the supreme court this year, took a second amendment case. It’s the first one they’ve heard since 2010.
Preet Bharara: And remind us what the issue is there?
Michael Waldman: It’s a quirky, weird issue from New York. It was a regulation, put in place by the Giuliani mayoralty. Saying that, you could not… I’m going to get it wrong. But, basically, you couldn’t bring your gun to your second home out of New York City. You can transport your gun if you had a license to your second home, out in the countryside.
Preet Bharara: So, luxury problem.
Michael Waldman: Yeah, I don’t suspect it was the biggest problem facing New York at the time. And what has happened is that the supreme court took the case and New York City changed the rule. And I believe, New York State passed the law changing the rule. And so, the question now is, since the case is, in fact, moot, whether the supreme court is going to go forward with hearing this case or not.
Preet Bharara: There’re debates that take place, in the supreme court, and other courts around the land, and then, legislators. But, there’s another place where debates take place, and these also help shape public sentiment, that’s been an important theme throughout our conversation. And those debates happen in neighborhoods, and on campuses, and at workplaces. Where, a very terrible thing happens, like El Paso. And then, I imagine, like, a lot of places, people come to work, or they go to family events, and they begin talking about these things, and debating these things. But, there’re certain arguments that are more persuasive to average people than other arguments.
Preet Bharara: I keep hearing people talk about, well, cars are regulated. You need a license to drive a car, and you need to register your car and all that. Why not the same with guns? Is that a good argument? Or, is that a weak argument?
Michael Waldman: I think it’s pretty good argument.
Preet Bharara: But there’s no constitutional right to own a car.
Michael Waldman: Well, but there is a constitutional right to travel. We now have more people die from guns in the United States, than from cars. And that’s partly because we have 30,000 or more people die a year from guns, many of them suicides. But it’s also because cars have gotten safer, it used to be a lot more. And there is a considered to be a constitutional right to travel. They didn’t lower that death rate from cars by banning cars, they regulated them. They put in airbags, they put in seatbelt, driver’s licenses, safety rules and speed limits, and all these things. And people still have their cars and have the right to have a car.
Preet Bharara: But, public sentiment played a role in that also, right? At the beginning, my understanding is, that car companies fought all these things, like seat belts, in particular. The first paper I ever wrote in college as a freshman, in 1986, was about how car companies were opposed to the airbag. And then, following it from a distance in the years since, partly what happened was, consumers, people who bought cars, began to care a lot more about safety, and began to care a lot more about death rates and about airbags. And all of a sudden, now, everyone’s on the same page. And Volvo can-
Michael Waldman: People bought Volvos, instead of Chevrolets.
Preet Bharara: And so, they got with the program. So, public sentiment came around to the view that, “Yeah, it’s not an infringement on our liberty, this is a thing that we really want, as consumers. And we’re prepared to pay a little bit more, for a safer car.” What’s the equivalent of that, that can happen with respect to guns?
Michael Waldman: Well, you’re exactly right. Not long ago, I worked for Ralph Nader, and at time when the auto industry was fighting, tooth and nail, to keep airbags out of cars, as crazy as that seem.
Preet Bharara: Now, there’s like 35 airbags in every car.
Michael Waldman: Yeah, and it’s a selling point. There’s a lot of things people can do now, even apart from urging congress or state legislators to act. There’s consumer power toward retailers, do you keep guns out of your stores? There’s criticism of Walmart. In the wake of this massacre at a Walmart, people realized that Walmart is, I believe, one of the biggest, if not the biggest, seller of guns in the United States.
Preet Bharara: Should they stop?
Michael Waldman: Well, in the wake of El Paso, they chose to stop selling violent video games, but not guns.
Preet Bharara: I didn’t [crosstalk 00:54:35]. Video games are not the problem, right? Michael.
Michael Waldman: Video games are not the problem. They watch more violent video games in Japan than they do in the United States, but they don’t somehow have the same gun death rate that we have. I think, a strong case could be made that Walmart should stop. There’s also gun owners. If you look at guns, the technological developments that have happened in the way guns are manufactured, they really aren’t that many, and they tend to be more about making them more lethal, having bigger magazines, or other things like that. Things to make them more exciting in that way. But, there are all kinds of safety devices that could be put in guns, to make them so that children can’t use them. Or, smart guns, that only recognize your fingerprint or your facial recognition, all the things that smartphones have.
Michael Waldman: And whenever companies have tiptoed up to doing any of that, there’s actually been a rebellion by the most active gun owners, meaning, the NRA, when, I believe it was Smith and Wesson, in the late 1990s, made a settlement, in the wake of the tobacco cases, to have trigger locks and child safety things. They faced a boycott, organized by the NRA. And so, there’s also a need for gun owners to step up and say, “We want our rights protected. We believe in this, but we are citizens too, and we have a role to play.”
Preet Bharara: What’s going on with the NRA? Is it on its last legs? You keep hearing scandal after scandal, and there’s issues relating to money, and Wayne LaPierre, and eating 17 houses. And apparently, expensive suits. What is going on with the power of the NRA and that organization, generally?
Michael Waldman: It’s a good thing they don’t have guns, because they’re really fighting it out and suing each other. I mean, the NRA seems to have become, there’s a saying, and I’m going to get it wrong. But, many things start as a cause and end up as a racket. And it seems as though, leadership of the NRA, wound up milking this cash cow for their own personal use. There’s a lot of investigations going on of their possible violation of nonprofit law. Questions about where they got the money that they used to suddenly spend a ton of money on behalf of Donald Trump, after not spending money in presidential elections up until now. They seem to be falling apart and flying apart.
Michael Waldman: However, that doesn’t necessarily mean that’s going to be a permanent thing. Again, there’s an intensity on the part of their supporters, that can’t be denied. But, the notion that they are this fearsome, unbeatable machine, that terrifies politicians in the dark of night, I think should take a hit here. And I think, if you can see some real action on some of these gun issues, at a moment when the NRA is falling apart, I think that the optics of the politics could change. And you also have, you asked about, what are some of the arguments that are most compelling? Women, and their increasingly important role in politics. This is a very gendered issue. And it’s really, a shrinking group of white men, who are the people who are pushing for gun rights, strong gun rights. And there’s smaller and smaller part of the electorate, even as the supreme court may be poised to lock that view in, for longer and longer in the constitution.
Michael Waldman: So, I wouldn’t be utterly pessimistic, but it’s hardly the case that this fight is over.
Preet Bharara: Top two gun reforms that should be passed into law, if you could get it done?
Michael Waldman: I’m no expert on the actual question of what would make the most sense. What I hear from folks is, a real background check system, would get a lot done. The question on assault weapons, the assault weapons ban that was passed in federal law, and during the crime bill of 1994. And at the time the crime bill was passed, that was the controversial provision, in terms of public debate.
Preet Bharara: And now, it’s the one that Joe Biden and others point to, to save themselves from criticism.
Michael Waldman: Right. It was not foolproof, it was full of loopholes. But, there’s some strong evidence that mass shootings, in particular, did go down during the time when the assault weapons ban was in effect, and have gone up. I think that, one of the things that’s really noteworthy, and again, I don’t pretend to know what the right answer is, on these things, is that, you’ve started to see people like Cory Booker and other people talk about licensing of gun owners, or even registration of certain kinds of guns. These were things that were off the table.
Preet Bharara: Is that effective politically? Does that freak out the large number of people who own guns and believe in gun safety? And they begin to worry, well, this is going to be the first step along the road to confiscation. I’m not saying that that’s true.
Michael Waldman: Yeah. No, and in the past, that’s what the politics of the assault weapons ban has been also. And that is where, I think, I hope, the Heller Decision and other decisions like that, can draw a line and say, “Hey, look, the supreme court has made it clear, the black helicopters can’t come in and confiscate all your guns, even if the deep state wanted to. It’s unconstitutional, it’s not going to happen.” Plus, we have almost 400 million guns in the United States, that’s just not going to happen.
Preet Bharara: So, you say that, and I’m going to say something purely pessimistic. Even if you cut back on a lot of things right now, and passed a lot of laws, there’re 400 million guns in the country. The only country in the world, I think, that has more guns than people. What can you do about that? In other words, is it too late? Given, the existing proliferation of firearms in the hands of Americans.
Michael Waldman: It’s challenging, because, guns last for a long time. And the technology is pretty simple. And guns that are sold today, will still be working decades from now. And so, I don’t think anybody can pretend that there’s an easy answer to this. I think, it’s a lot of social and cultural changes. Again, we’ve seen gun violence go down in the United States, along with crime, generally. If we were having this conversation three decades ago, the crime rate in the United States quadrupled, from 1960 to 1990. And then, since then, it’s been declining steadily. And nobody can really tell you exactly why that happened. We, at the Brennan Center, have done a lot of studies that make it pretty clear to us, at least, that, the massive level of incarceration that we have is not the reason. But, there are a whole bunch of other things that had something to do with that.
Michael Waldman: And so, gun violence is broadly the same way. And some of it is generational change, some of it is people’s expectations. But, I think, getting us into a more normal political space, where, you can have real discussions of what kinds of gun safety rules actually work, you can have debate over, what makes sense? What doesn’t make sense? What evidence there is? Without it instantly becoming this kind of highly polarized individual freedom, versus fascistic government debate. If we can get to that point, then, I think, a lot of progress can be made.
Preet Bharara: What’s in lots of people’s minds is the gun issue and the Second Amendment. But, there are lots of other things that the Brennan Center works on, and that you were very expert on. Like, democracy, generally, and the right to vote. And one of the great things people should be thankful for you on, is how much energy you’ve devoted to that. What would you say is the biggest obstacle to participation in our democracy today?
Michael Waldman: There are a lot of obstacles. There are a lot of ways that people are not engaged. Things that you wouldn’t necessarily expect, such as weak political parties or people not being active in labor unions and churches. But, it’s also the case that, the way our system runs, the way we run elections in this country, is a surprisingly significant obstacle to people’s democratic participation. And unfortunately, there’s a lot of people who are trying to make it harder for people to vote, and make the elections less meaningful and less representative. And unfortunately, that’s become a pretty clear political strategy to restrict the vote and try to gain advantage, as a result.
Preet Bharara: So, what do we need to fix?
Michael Waldman: First off, probably the most important reform we can make right now, has to do with voter registration. We have one of the worst voter registration systems in the world. One of the only places where people fall off the rolls when they move, where there’s tons of errors. Where, millions of people show up to vote every year, and find that they’re not on the rolls, the way they thought they were. We all take it for granted. But, other democracies don’t do it this way. And there’s a reform that the Brennan Center helped develop, called, Automatic Voter Registration. Which says, if you’re eligible to vote, basically, you’re registered to vote, if you interact with a government agency. Unless, you choose to not be registered.
Michael Waldman: And it’s now in 16 states, and the District of Columbia. And if it-
Preet Bharara: Are those blue states or red states or both?
Michael Waldman: Both. It passed in Illinois, which is blue state, but it passed unanimously in the legislature. In Alaska, voters voted for it, even as they were voting for Donald Trump for president. West Virginia, as well as California, and a lot of other more traditionally progressive states. And if it were fully implemented, it would add 50 million people to the rolls permanently, it would curb the potential for fraud, and improve election security. Because, you have a strong list of who’s eligible to vote, and it costs less. So, this will make a big difference.
Preet Bharara: Who’s against it?
Michael Waldman: A lot of it has been inertia, and a lot of it has been at the federal level. For example, this was one of the items that was in H.R. 1. This very significant, sweeping democracy reform legislation that passed the house of representatives. H.R. 1 has automatic voter registration, it has small donor public financing for campaigns. Based on the system we have in New York City, they’ll make it so ordinary people have a louder voice in that system. It has a national requirement for redistricting commissions, to draw district lines, so that you have real competition around the country, and representation of all communities. And Mitch McConnell is blocking this from coming up in the Senate.
Michael Waldman: A lot of this is the kind of general resistance to having anything that would strengthen democracy and make it more widely available. So, I would say, automatic voter registration, restoring the strength of the Voting Rights Act, real redistricting reform, so that you don’t have the rigging of the system that we see with gerrymandering, and real campaign finance reform. All those, which are widely popular, would transform the politics of our country, I really believe that. And this is all going to come to head in this election.
Preet Bharara: How so?
Michael Waldman: Few ways. The fight to vote is going to be really significant in determining how the election is fought. You have purchase of voting rolls all over the country, Brennan Center just did a study showing that 17 million people were purged from the voting rolls, in the last two years. Now, some of those people were kicked off the rolls because they moved or something like that, we don’t know fully. But, a lot of them were eligible voters. And the rate was much higher in the states with a history of discrimination based on race, out of the Voting Rights Act. It’s very troubling and very suspicious. You have the threat of Russian hacking, and other security threats to voting machines, that are going to make people really worry that the results of the election aren’t going to be right.
Michael Waldman: There’re urgent need to buy new voting machines to strengthen our defenses. We needed to do this, anyway. But, now, we know that there really are, the building in St. Petersburg, Russia, of hackers in there trying to mess with our elections and the Russian government. And who knows, who else. So, there’s a lot of things that could really affect people’s confidence in the election. And one thing that is different is the candidates now, on the Democratic side, in particular, are finally talking about this issue as a reform that they want to enact as a top priority, should they be elected.
Preet Bharara: So, one of the amazing jobs you’ve had during your career, and I wanted to close with this, was you were a Director of Speechwriting, for William Jefferson Clinton. You were responsible for overseeing and writing, drafting, editing. And back then, there have been three Republican presidential terms. Like what you’re talking about with the NRA, the feeling was, you’ve got to talk a certain way, and walk a certain way, if you’re going to get elected as a Democrat.
Michael Waldman: I really think he thought of himself as a progressive president in a conservative country. One time, privately, as we were working on one of those State of the Union addresses, he said, “FDR saved capitalism from itself.” He didn’t make that up. that’s a well worn observation. He said, “FDR saved capitalism from itself. Our job is to save government, from its own excesses, so it can be seen as progressive force again.” And so, it was a very different time. I would argue that, a lot of the things that were done then created the conditions for people being willing to use government again now, in a different way. This is a challenge Joe Biden has, of having to explain and defend policies, arguments and decisions from decades ago, when we’re living in the here and now, and people, understandably, have different views in the wake of the financial collapse, in the wake of Donald Trump and demographic change, and everything else. It’s a different time.
Preet Bharara: Here’s what’s stunning to me, there’re so many things stunning to me about the way that Donald Trump uses his bully pulpit, and all the various podiums that he speaks from. Every president, up to now, that I can remember in my lifetime, Democrat or Republican, whether you’re talking about Reagan, or the Bush’s, or Obama or Clinton. And specifically, I will ask you this with respect to your experience overseeing speech writing for President Clinton. The rhetoric, always, not always, but most of the time, particularly, key junctures, sought to expand the base of support, and sought to speak to people who may not have voted for that person, but, who you aspired to have vote for you.
Preet Bharara: And so, the language is often reaching out across the aisle, in whatever way. Republicans, Democrats, both have done that, how conscious a decision was that, when you were writing for President Clinton? In other words, who’s your audience? How much did you think about, “Well, I want to make sure that we’re saying things that our supporters, the people who have voted for us, will agree with and applaud and be happy about”? And how much were you thinking about the people that you might want to get the next time around, versus what this president seems to do, President Trump?
Michael Waldman: It was very conscious. And you’re right, that isn’t just something that Bill Clinton did, but George W. Bush, talking about being a compassionate conservative. Or, you use that bully pulpit, to try to speak to a wider audience than your own core supporters. And the way Clinton did it, and most of these presidents have done it, is to try to appeal in values terms, to what might be unifying or cross cutting themes that pull people together. A lot of Clinton speeches revolved around, as he described it, the values of opportunity, responsibility, and community. And that just sounds like a lot of blah, blah, blah. But it actually was a significant tweak of the Democratic message, to talk about opportunity, but also responsibility.
Michael Waldman: And that led to policies like the earned income tax credit, which was a working poor people’s tax credit, that’s been an extraordinary success in lifting people out of poverty. Presidents are very conscious of that. And when we were working with Clinton on the State of the Union addresses, he was always very aware, especially, of, which policy, which argument would appeal to who? And which would get the Democrats on their feet? And which would reach out to Republicans? And it drove his opponents crazy, and it drove a lot of his own supporters crazy. Because, he was not speaking in his mind, like an orthodox Democrat. And just the same way, George W. Bush, at the beginning of his term, before 911 reshaped everything, George W. Bush also had to reach out rhetorically.
Michael Waldman: Bill Clinton, when he was elected in 1992, only got 43% of the vote. And he didn’t get a majority the second time, even though he won handily. Only Barack Obama, of Democrats, has had a majority twice, in decades. So, it is a different time. And of course, even Obama, of course, for all kinds of reasons, very, very consciously reached out in rhetorical terms, to broaden his argument, so that it could speak to the core patriotic values, that, we are rooted in that preamble to the Declaration of Independence, that we’re all created equal, the civic creed. And what’s so depressing and startling about Trump, is that, he has substituted for this great American presidential tradition, of calling out those better angels, this kind of blood and soil, white nationalist language. It’s hard to just give it any other word than that.
Michael Waldman: If you look at his inaugural address, the one that talked about American carnage.
Preet Bharara: Yeah, I remember it.
Michael Waldman: It did not mention the constitution. It didn’t use the word liberty, it didn’t do these things that, think of Ronald Reagan or Clinton or any of the other presidents, speak to in that kind of sacramental moment. And I do worry, as somebody who had the experience of working, I didn’t want to sound like one of those old guys, talking about the glory of the presidency. But, in fact, it’s pretty significant responsibility when you’re anywhere near it. And I do worry that this office that has been this driver of a lot of progress in the country’s history, is broken by this man. And, as you and I have talked about and worked on, anytime there’s an abuse of power by a president, and it happens, it hasn’t just been this president, there’s always a response. And part of that is a policy response, part of that is putting in place things to fix the norms or restore the norms.
Michael Waldman: But, one of the norms that can’t really be addressed by laws, are kind of what the presidency means to the country and how presidents speak to the country. And then, I pity the people who have to compile the books of presidential speeches, which are done by the National Archives.
Preet Bharara: Well, luckily, there’s a program to do that for Twitter. So, it’s a little bit easy.
Michael Waldman: Yeah. Well, there’s a Twitter feed that takes his tweets and makes them look as though they are official presidential statements. And it’s going to be an interesting challenge for whoever has that job.
Preet Bharara: Michael Waldman, you are the president of an organization, that does so much good. And it’s called the Brennan Center for Justice. Thank you for your service, thank you for being on the show.
Michael Waldman: Thank you for what you do.
Preet Bharara: The conversation continues for members of the CAFE Insider community. This week, the bipartisan and historical tradition of gerrymandering, what it was like writing words for a president who so often went off book, and Michael Waldman’s definition of justice. To get the Stay Tuned bonus, and the exclusive weekly CAFE Insider podcast, go to cafe.com/insider.
Preet Bharara: Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Michael Waldman. Tweet your questions @PreetBharara, with the #AskPreet. Or, you can call 669-247-7338 and leave me a message. That’s 669-24-Preet. Or, you can send an email to staytuned@cafecom. If you like what we do, rate and review the show on Apple Podcasts. Your reviews help new listeners find the show. Stay Tuned is presented by CAFE. The Executive Producer is Tamara Sepper. The Senior Producer is Aaron Dalton. And the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Jeff Eisenman. Our music is by Andrew Dost. I’m Preet Bharara, Stay Tuned.