Can Trump Win? Plus, The True Meaning Of The 2nd Amendment
Nick Hauselman flies solo for the show today, discussing some of the more troubling procedural instruments Trump has with respect to Judge AIleen Cannon that could conceivably get him acquitted without the jury even deliberating. Then, Ben Winkler, UCLA Law Professor and author of "Gunfight - The Battle Over The Right To Bear Arms In America," joins Nick to discuss the true meaning of the 2nd Amendment and why the Supreme Court is single handedly destroying gun control in America.
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I am the co-host of the Muckrake Podcast, and welcome to The Weekender, an episode we do every Friday, and it's also part of our Patreon subscription.
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I think you'll really enjoy it.
We had an incredible interview that I did with Adam Winkler, who is a professor of law at UCLA and author of Gunfight, the battle over the right to bear arms in America.
And we talked a lot about the Second Amendment and why there are so many damn commas in it.
Plus, we actually had a really kind of chilling moment when I asked him a question and he gave me an answer.
I'm going to play it for you right now because you're really going to want to stick around and hear the whole thing.
What if, God forbid, because if you look at what happened like in Australia, for instance, in 96, within two weeks of a terrible mass shooting, they had gotten rid of some of the automatic weapons and never to have another mass shooting since, or I don't think they've had one or whatever.
It's very, hardly ever.
So God forbid that happened here again, although it happens every other day, and we all coalesced around the Congress and they all, they passed this law.
Do you think it would get struck down by the Supreme Court?
Yes.
Chilling isn't it?
I couldn't believe that that was the answer but it absolutely makes sense based on what we talk about so you're not going to want to miss this interview.
So I thought I'd take a few minutes to talk a little bit about what's going on with the Trump case right now and the fact that he's been indicted in Florida.
And there's some interesting things that are going on that we probably should be aware of.
Eileen Cannon is the judge.
We talked about this in the pod earlier this week.
And there's a lot of things that she could do that are now coming to light that could really be problematic for a fair trial.
There's one kind of weird thing that a judge can do in a criminal trial, which is called a motion for directed verdict.
Basically bypassing the jury.
They don't have to deliberate.
They're not going to come up with a verdict.
If the judge feels like there wasn't enough evidence presented or it's insufficient to find guilt beyond a reasonable doubt, then she could just decide that he's innocent and there's no appeal.
That would be it.
And I can't imagine that happening, but there's a lot of things that she could do.
Like, she could schedule this court case for after the election in 2024, and then if a Republican won, if it's Trump or anybody else, they could easily just have it dismissed once they get into office.
So that's another one of these things.
It's a little bit scary, but I also have to imagine perhaps the DOJ and Jack Smith felt like maybe we get her and we have such an airtight case that it will eliminate some of that political bias that people are arguing for because of all the judges to have, this is the one who would not be biased and everyone would have to claim that she was fair and whatever.
But I don't feel great about it.
And I would think that she could do a lot of problematic things as we saw when she was the judge in his other trial.
So that's really kind of scary and then mixed with all of this thing is the reaction you're seeing from the GOP and a lot of the politicians and the congressmen and the senators.
That's probably the most frustrating thing about all of this is that there isn't any sort of reasonableness going on here and they're actually going on the attack
And what we're now hearing over the last week or so is this notion that Biden you know was trying to shake down Ukraine and that he's paid five million dollars and Hunter Biden is involved and there's these tapes of these 17 conversations and you have Chuck Grassley you know ambling up to the podium to try and claim that the FBI is burying the evidence and they have this memo
And what they know, and they are intentionally being obtuse about, is that this is years old.
This is two or three years old, and this is all Rudy Giuliani getting Russian misinformation and trying to feed it to the FBI.
It might sound familiar.
It's kind of like what the GOP was accusing Hillary of doing, right?
When they did OPPO research with Fusion, Supposedly the Republicans think that that was all a coordinated attack on Trump to get him to undermine his presidency, I suppose.
Despite the fact that whatever they had found, they never released.
The Clinton, you know, campaign never released it.
And despite the fact that the Republicans were the ones who initially started the Apple research.
And the fact that, you know, a lot of it was actually corroborated in what they found out.
So, what's interesting about how they're muddying the waters, though, is that it's suddenly, it's kind of almost a brilliant move here because in one fell swoop they are able to attack Biden and then also somehow exonerate Trump for his call that he got impeached over in Ukraine.
Remember, he wanted Zelensky to just announce they had an investigation on Biden, right?
He didn't even need him to have a real investigation, just the appearance that there's something up.
But now they're pretending that Trump knew all about this $5 million, you know, BS bribery stuff that's going on.
And that's what he was trying to get at with Zelensky in this call.
And in reality this is just a fever dream of Rudy Giuliani who was, you know, dripping with hair dye.
We all remember that, right?
And it's really kind of sad.
You know, Rudy is just a shill.
He's just a broken person who doesn't really have a firm grip on reality.
And he's probably going to be disbarred.
He already has in hot water in New York as it is with his law license.
And he's a guy who just shouldn't be out there.
He shouldn't be making decisions.
He shouldn't have been influencing anybody like Trump or been anywhere near that sphere.
He's done.
And yet, now they're able to try and weaponize this, which is again, funny because Jim Jordan's got this weaponization committee that he's trying to investigate, and they keep coming up with absolutely nothing.
And that's the whole point.
They want to muddy the waters.
They know they have enough people who follow them blindly that they've made up their minds already.
And it's not like it was in, like, 72, for instance, when Nixon was going through all this.
And that's sort of what's sort of fascinating about this whole thing at this point is that we've come to a time in our society where, A, the Republicans' margins are so razor thin, they absolutely need every one last MAGA to vote for them in order to win any kind of election.
So they can't afford to alienate Trump, but they're also willing to just ignore the notion of what democracy is and what, you know, having, being scrupulous and having ethics in order to maintain their control on power.
And really it's money in my mind.
I don't even know if it's power per se, it's just money, which is sort of the same thing.
So we might have all forgotten about what was going on back then because so much shit was happening every other day with Trump.
But, you know, the only reason Biden was involved in any of the Ukraine stuff was because the U.S.
was going to provide a lot of money to Ukraine, but they were so worried about corruption on the Ukrainian side that Biden got involved and called Zelensky to make sure, or the president, excuse me, the president of Ukraine at the time, to make sure that they For one instance, the top prosecutor in Ukraine, Viktor Shokin, was fired because he was not doing his job rooting out corruption.
And that was why they were so worried about sending money to Ukraine and knowing that money would get wasted.
Now, this wasn't even a Biden thing.
The entire international community was calling for Shokin to be fired because they knew how corrupt he was.
And so that's all that Biden did.
And so some of the tapes that they're talking about are just the conversations on that.
And they were selectively edited and they still don't say anything remotely close to what everyone's like Grassley is trying to insinuate right now.
I actually, believe it or not, I actually flipped on Dan Bogino or Bongino, whatever the hell his name is, his show.
Which is like, by the way, it's amazing to watch.
The guy does it on his own just staring right into the camera talking like, you know, solo for an hour straight.
The irony being that I'm trying to do something like that right now, but still, I can't believe that this guy can even do this.
And he works himself up into a lather, and he plays a few minutes of the tapes, and it's nothing.
There isn't anything on there, but the louder he tries to speak, I think that the more impressive he thinks it sounds.
But, you know, there isn't anything there that proves that Biden took five million dollars or that he was, you know, trying to, you know, cover up something that, you know, Hunter Biden was involved with as part of the Bereavement Board.
It's all some ridiculousness that Rudy Giuliani was built on and fed misinformation.
And it's sad.
It really is kind of sad when you boil it down because that's what the GOP is trying to do.
Simply muddy the waters, distract from what's going on, which is the real crime, And Trump mishandling these, you know, top secret documents.
And they have him.
It's done.
So this is the act of a bunch of desperate people who are simply trying to muddy the waters.
And it's like when you've gone this far towards your allegiance to a political party, then you can bend reality to however you see fit.
And that's the thing.
There's a foundational perception that becomes so warped that it actually almost sounds reasonable when you listen to these guys talking about this notion of a $5 million bribe that Biden took.
And there's phone calls being recorded.
I mean, it's just ridiculous sounding on its face.
And then there isn't any evidence for any of this anyway.
And then as a result, it becomes Biden, who's the corrupt mobster and wannabe dictator.
Fox News on the Chiron yesterday literally says, you know, describing Biden as a wannabe dictator who's creating a banana republic because he's arresting his chief political rival.
When we all know that Biden had nothing to do with this at all.
And in fact Merrick Garland was perfectly willing to let Trump slide out into the abyss until he wouldn't return the damn documents and then he was forced to get a special counsel and then here we are with Jack Smith.
It's all because of Trump.
It's what he did it on himself.
But they were writing the history as well because Hillary keeps coming up out of all this.
You know, they're saying that, well, Trump never tried to prosecute Hillary.
You know, he was a statesman, an elder statesman in the White House, and he knew he shouldn't be doing that.
It would look bad.
It would look political.
And that's such garbage and such lying.
It's beyond reproach how ridiculous that is, because we know the reporting at the time Was that Donald Trump was continually asking Don McGahn, for instance, the Chief Counsel in the White House to go order the Department of Justice to open investigations into both Comey and Clinton.
I mean, you can go back and look, it's reported extemporaneously all over the place.
I mean, the Uranium One thing was hilarious, right?
That one was one he kept trying to push.
And that was, remember, that was like a Russian company bought, you know, a uranium mine in Wyoming and from the Obama administration approved it.
And they tried to make it seem like Hillary was, they, somebody Pay all this money to the Clinton Foundation and then pay for play, she approved this sale.
It was just ridiculous.
It went through so many different departments, independent of Hillary, who did not have any influence on that decision.
Even guys like Matthew Whitaker get installed after Jeff Sessions is fired.
When you start looking at it in that prism, when they start putting these people in, like Whitaker, who had already had an issue with representing a company that was completely fraudulent, You know, you start to look back on it now and realize, like, what, how nefarious was this, right?
What were they really trying to do?
And I'm actually, we're going to jump ahead, I guess, before we get to the interview, but I guess we'll talk a little bit about, you know, what we're watching.
I'm watching The Plumbers, which is a terrific show on HBO.
And a lot of it is true.
They kind of fudge some things to make it more interesting dramatically.
But, you know, when you look at what the Watergate break-in was and how it was structured, It's not that far-fetched, then, to sort of look at how Trump was doing this.
Because remember, before, after he lost the election, before he steps down on January 6th, or before January 6th, he started putting in people at the top of, you know, the Department of Defense.
And it was all these weird things happening, you know, at the time when it was a lame duck session when he was on his way out.
Why were they doing that?
And if you look at it in the context of what we saw with Nixon, you kind of start to think, okay, this is sort of on the way toward what was happening with January 6th.
They were trying to set it all up and get the right people in the right spots.
And by the way, the interesting thing about the plumbers is that somebody in the writer's room on this show shares part of my brain because they actually make direct connections like I have made on the show about how Nixon could very well have been involved with the JFK assassination. the interesting thing about the plumbers is that somebody in And you should go back.
I can maybe find that link and drop it if I can find out which one that was.
But we did a, you know, 25-minute video.
25 minutes on it not long ago.
But it's not that far-fetched when you see an HBO show drop the same kind of connections that I was making.
And we don't forget when John Ehrlichman, Nixon's Chief of Staff, went to his grave averting that whenever Nixon had mentioned the Bay of Pigs thing, He always thought it meant the JFK assassination.
Nixon was constantly trying to get whatever evidence the CIA had on that, on the assassination.
They wanted to know what they had because he was paranoid that they might have had information that he was involved.
And the Watergate break-in is interesting because Nixon was so far ahead at that point over McGovern, there was no need to be bugging the DNC headquarters to find out what their strategy was.
I mean, when you saw what the final results were, it was like 470 electoral votes to 40, something crazy like that.
It was so not close that you never would have even considered breaking into that campaign headquarters.
You thought that maybe they had some sort of evidence that was so damning that it could derail your presidency or your campaign.
And we know Roger Stone, who is no friend of the breakdown and certainly a guy who is way out there, but he did write a book about this as well and he was connected to Nixon.
And he does think that that was part of what was behind the decision to go into Watergate and try and find out what they knew to avoid that happening.
It's all related to then how we look at what's going on with Trump and what they're going to be able or not able to do as far as taking advantage of the judicial system and what they can make happen or not.
It's a little bit concerning.
So you've got to keep our eye on how that all works because these things don't operate in a vacuum.
You know, there's already been a blueprint laid out from what they did in 72 and 74 through Watergate, which could be a blueprint on what not to do.
And so we have to be very concerned about Trump getting out of this and then also certainly then winning the presidency, which would be such a horrible blight on this country.
I don't know how I don't know how we survive that.
So, without much further ado I wanted to just remind you guys that we're gonna release part of this for you guys for free over on wherever you get your podcasts and then you definitely want to make sure to hear the rest of this interview with Adam Winkler because it is just a fantastic analysis of what it means to have the Second Amendment and why people seem to think it's a God-given right to be able to own any kind of gun they ever wanted to have.
And I can guarantee you it's going to come up again and we're going to have a lot of serious issues going forward with mass shootings and semi-automatic weapons and things that should not be in the public, to be able to be bought by the public.
So here comes the interview with Adam Winkler, so check it out.
And don't forget, if you want to subscribe, head over to patreon.com slash muckrakepodcast and become a Patreon.
Hey everybody, welcome back to the Muckrake Podcast.
I am Nick Hauserman, the host, and I am very pleased to bring on a guest.
His name is Adam Winkler.
He's a professor of law at UCLA Law School and author of Gunfight, the battle over the right to bear arms in America.
Professor Winkler, Adam, I'm glad that you can be here to talk to us a little bit because it's a subject I've been talking about for a long time as far as what the Second Amendment really, really says.
So can you indulge us for a few minutes at least on the actual text of the Second Amendment in the Constitution?
Sure.
I mean, the Second Amendment provides that, you know, a well-regulated militia, comma, being necessary to the security of a free state, comma, the right of the people to keep and bear arms, comma, shall not be infringed.
And it's almost as if James Madison, the author of this provision, had just discovered this wonderful new thing, the comma, and wanted to put it in there as many times as possible.
And as a result of all those commas, it's kind of confused people for generations.
I was always told when I learned English is that whatever in a sentence if you have two commas you should be able to take out everything between the two commas and the sentence should still make sense.
But try that with the Second Amendment and it won't work at all.
And of course the big debate has been over whether that amendment was designed to protect some fundamental individual right to keep and bear arms.
The right of the people to keep and bear arms shall not be infringed, or whether it was a right that was really just restricted to militia service, to a right to have an armed militia at the state level.
And while I think it's pretty clear that the framers were mostly interested in militia service and protecting access to firearms in state militias, Over the course of American history, the Second Amendment has been interpreted by Americans pretty, you know, over and over again to mean an individual right to bear arms.
And indeed, the Supreme Court adopted that view in 2008 in the Heller case.
Okay, that's a lot of a lot of commas we have to wrap our heads around and I agree.
I think that that was clearly something that they didn't recognize when they were writing it back then why that it would be so so interpreted misinterpreted.
What do you think though?
I mean, can you give us an opinion on whether you think that a militia is supposed to refer to like an army or is it individual rights?
Well, there's no doubt that the militias, the framers understood it, was a military fighting force made up of the ordinary citizens who would be called out to serve in the event of war.
They didn't have a standing army in the founding era.
Immediately after the Revolutionary War, Washington's army was disbanded and the idea was that a standing army was a threat to liberty.
That's kind of what the framers were worried about when the king back in England organized a standing army.
And so they believed instead in a citizen's militia that people would be called out, bring their guns, and be ready to fight in an instant.
We remember the Minutemen from revolutionary history.
And indeed, if you go back through the Founding Era, it's clear there is no discussion in the Founding Era of The need to protect the constitutional right to have firearms for personal protection against ordinary criminals.
Firearms weren't particularly useful for that back in the time, back in that day.
I mean, they could be used for that, and I'm sure occasionally were used for that, but you could only fire one shot at a time and then it would take a minute or two to reload your firearm through the barrel.
You know, you've seen those videos of, you know, what it takes to put all the stuff in there and get that thing ready to fire again.
But over the course of American history, Americans have increasingly thought of the right to bear arms as an individual right.
We can see this in state constitutional law, like most states have their own, like every state has its own constitution.
Most of those state constitutions protect a right to keep and bear arms, a right that's not tied to militia service, but is an individual right.
So the Second Amendment is probably best understood as about protecting a right associated with the militia in terms of its original understanding and original public meaning.
But it's fair to say that almost none of our constitutional rights are restricted to the way the framers originally understood them or applied them.
And the Second Amendment is no different.
Fair enough, fair enough.
So I guess if we can look at that in the sense that ordinary people who might be called up to have to defend the United States would need to have those guns to be called up.
So I guess that's sort of the right of the people to keep and bear arms.
I get that part.
But the first part of this thing, and maybe that's what the framers were trying to tell us, was well-regulated, right?
That is the big term in the front before any of the commas come in.
How has this well-regulated part of the amendment become some sort of a flashpoint, I suppose, in today's society?
Well, in part because the NRA and some of its allies don't seem to recognize the well-regulated part.
A good example of this, Nick, was for a long time the headquarters of the NRA outside of Washington, D.C., Had etched into the wall a quote, it said, the right of the people to keep and bear arms shall not be infringed, conveniently omitting the first part of the Second Amendment that talks about the need for a well-regulated militia.
And indeed, in some in the gun community believe that gun, the Second Amendment, is all rights and no regulation, when in fact, the Second Amendment, by its very terms, refers to regulation of that right and of the people who are expected to exercise that right more so than any other constitutional right we have.
The framers had gun control and understood that firearms were a hazard to public safety and thought that we must balance gun rights with gun regulation.
Okay, so now you're getting me more frustrated now because it seems like it's clear and it should have been clear for a long time.
Full disclosure, I'm probably that guy who would want to ban guns from the world.
You know, just have a blanket law that covers it for everybody across the globe.
So, you know, I think what we also have is an interesting thing about how we have to interpret a document that was written from so long ago into now.
And is it fair to say, with your experience of the law, that none of these amendments are going to get rewritten and get updated?
The language is never going to get updated.
Is that safe to say?
I mean, you know, never say never, but it does seem like we are not on the precipice of any significant constitutional amendments in America, although just this past week Governor Gavin Newsom of California called for a new 28th Amendment that would restructure the Second Amendment.
I don't think it has any chances of passing, and I would guess, if I had to, that it's more likely that we get an amendment strengthening gun rights than we are to get an amendment that's going to weaken them.
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