After seeing my friend Don Kates in the pages of the Washington Post last week, I realized I hadn’t talked to him in over a year. Since he lives nearby, in the foothills of the Cascade Mountains of southwest Washington State, I called to see if I could drop in for a chat. As Don says, he lives on top of an f***ing mountain at the end of a very long and winding road. We warded off the chill of a rainy March day with hot tea and memories. If you Google his name, you will find Don Kates has authored a huge list of articles relating to the Second Amendment and many others in the field of criminology. Being an expert in these two areas probably made it inevitable that he would be drawn into the gun control debate . . .
While he was a law student at Yale Law School (class of ‘65), he volunteered to do legal work with civil rights activists in Southern states, primarily North Carolina. Due to the constant threat of violence from local KKK types, Kates illegally carried one of his two revolvers and usually had at least one of his three long guns handy. He recalls one night when he stood guard outside the house of a civil rights activist with his M-1 carbine, finding out only much later of the carbine’s reputation for poor stopping power.
Thankfully he never had to use his weapons and moved on to work for a law firm in New York City headed by the famous trial attorney William Kunstler, a liberal-left activist and self-described radical lawyer. In 1976, Kates wrote an article for Civil Liberties Review titled Why A Civil Libertarian Opposes Gun Control, on the importance of dissenters and political outcasts having access to guns for self-defense.
In the late 1970s, Illinois enacted some very strict gun laws. They were challenged by the NRA, which did not seek advice from Kates, an avowed liberal. The relatively new Second Amendment Foundation asked Kates to research and write an amicus brief challenging the new laws on Second Amendment grounds. They lost the case, but the research was turned into a 1983 Michigan Law Review article which became the seed that started the rebirth of the Second Amendment in legal thinking.
Kates began teaching what he had learned to other legal scholars at a series of seminars. His work has been cited in so many articles and court opinions that it isn’t possible to list them all. Virtually all of the top legal scholars now support what is considered the standard model of the Second Amendment.
I asked Don to tell me the most important things he had learned in his long career and he offered two items:
In his roughly four decades of research, Kates has found nothing in the records from the founding era that even remotely supports the collective right theory of the Second Amendment favored by gun control advocates. There is also nothing in the historical record that specifically rebuts it, since the founders had never heard of such a theory. It is simply fiction that was dreamed up in the middle of the Twentieth Century to support the idea of restrictive gun laws. In his own words:
“There are many reasonable controversies about gun control and legitimate scholars can disagree. Ditto for the 2d Amendment. But that the 2d Amendment guarantees law abiding, responsible adults a right to own guns is not subject to any legitimate disagreement. Those who have disputed this are unscrupulous political hacks who publish mendacious garbage for political motives that overwhelm any respect they may have for honest discourse.
“For instance: late 18th Century Americans — Federalists and Anti-Federalists alike –fervently endorsed the right to arms. Statements lauding arms and the right thereto are platitudes that can be found in the writings of every Founder who addressed the subject. These include not only Madison, Sam Adams, Patrick Henry and Richard Henry Lee, but also Madison’s compatriot Tench Coxe as well as such prominent leaders of both factions as Noah Webster, Thomas Paine, Roger Sherman, Timothy Dwight, James Wilson, George Mason and Joel Barlow.
“It is equally important to look at the converse. Who among late 18th Century Americans disagreed with the right to arms: NO ONE! Americans of the early republic were a bunch of unregenerate gun lovers who make today’s NRA members look like sissies.”
Putting on his criminologist hat, Kates offered a second piece of wisdom. He explained that the overwhelming majority of violent crimes, especially murder, are committed by people who have a long and violent criminal history. The idea that ordinary people frequently kill each other in a fit of rage, especially if there is a gun handy, is a myth concocted by those who dislike guns. This, he says, is proven by criminological studies going back to the 1890s. Keeping guns out of the hands of non-criminals will do nothing to reduce violence, since non-criminals aren’t the problem and criminals will circumvent the laws.
Well past retirement age, Don is still hard at work writing articles on the Second Amendment and criminal behavior. He also finds time to send out a steady stream of historical commentaries to those on his email list. His wife, Valerie, takes good care of him and their thirty year old parrot Che, sometimes listed among the authors of certain articles as C. B. Kates.
Don Kates is a national treasure, but I’m sure the gun haters — and the Washington Post — might beg to differ.
Dr. Michael S. Brown is a member of Doctors for Responsible Gun Ownership.