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.

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37 COMMENTS

    • Kates is a colleague of Gary Kleck. Together, they wrote “Armed”, a book about the science of gun use that everyone should read. It covers the empirical research on the science, media, and politics of guns. It is a tour-de-force of intellectual rigor.

      Please post this link under Gun Facts.

    • He is one of the articulate individuals in this documentary:

      In Search of the Second Amendment
      (parts 1 – 12, starting here):
      http://www.youtube.com/watch?v=0j7h-fdHoYE

      Robert, IMO a link to David Hardy’s documentary site should be a perpetual feature of TTAG.
      http://www.secondamendmentdocumentary.com/

      There are many newly mobilized pro-RKBA/2A people who may not know about this fine discussion of the framers’ carefully articulated intent with the Bill of Rights.

  2. Laurence Tribe, a left-leaning Constitutional law scholar, was one of a number on his side of the political spectrum who argued that if we don’t have an individual interpretation of the Second Amendment, we undermine the individual rights expressed in all the other amendments. Kates fits into this kind of thinking. That is what first brought me over to the gun-rights side.

    • And then there is Alan Dershowitz who believes that banning ARs and high cap mags is “common sense.” And who also called Prof. Lott a fraud during Piers Morgan nterview, because it is “common sense” that more guns means more gun crime. Adding salt to the wound, he claimed that Lott would be disqualified as an expert witness and thrown out by the ourt if called to testify–even though Alan is not a statistician and Dr. Lott is!

      • One of the great ironies with Dershowitz is that he is an ardent defender of Israel but cannot seem to understand the vital role firearms (or the lack there of) played establishment and continued existance of that state and any other free state.

  4. “… the overwhelming majority of violent crimes, especially murder, are committed by people who have a long and violent criminal history.”

    We have recent data that supports this. Criminals involved in gang and drug activities commit somewhere in the neighborhood of 85% of all violent crime. Those violent criminals surely will NOT obey civilian disarmament laws.

    So who commits the remaining 15% of violent crimes? Career violent criminals, domestic violent offenders, and first time offenders. The career violent criminals will certainly NOT obey civilian disarmament laws. Domestic abusers — who are routinely within contact distance of their SLEEPING victims — do not need firearms to easily murder their victims so gun control will do nothing to stop domestic violence murders. And finally we have first time offenders. Civilian disarmament might have a small effect on them. But now we are talking something like 1% to 4% of all violent crimes.

    To put the previous paragraph in perspective, violent criminals used firearms to kill about 9000 people last year. Gangs, drug distributors, career violent criminals (repeat offenders), and domestic abusers will be responsible for about 8,600 to 8,900 of those. That means civilian disarmament laws, at the absolute best, could eliminate about 100 to 400 murders annually at the hands of first time offenders. The 10s of thousands of law abiding citizens who use firearms to defend their lives annually far outweighs the maximum potential benefit of civilian disarmament laws.

  6. Great article on Kates, and I’m very pleased with the work that Dr Brown is doing for gun rights too.

    • Ok, at least I’m not the only one to think about making pirate references, har-har!!!

  8. I was honored 1 year ago almost exactly to hear Mr. Kates in person. The Fordham School of Law had a seminar on gun control in which he participated. Here is the link from the Law School. You can click on the flyer to see the others that spoke along with the full day of video.

    http://urbanlawjournal.com/?p=819

    • It appears to be a yellow naped amazon; mine’s a red-lored. Gotta appreciate someone who’s subtle about “giving everyone the bird”.

      • Tsk. In fact I’d be guessing that he simply had this wonderful portrait taken with a good old friend, and when asked for a photo for Mr. Brown’s piece, offered it. It’s a parrot people thing that I doubt you’d understand. I cannot imagine that Mr. Kates would use his old friend in this way.

  10. Thanks for this. It is always good to be introduced to another civil libertarian on the correct side of the 2nd. I hate that the conservatives and the anti-capitalist nanny-statists have co-opted a wonderful word, “liberal” to mean anti-capitalist nanny-statist. There is nothing (except for some social policy ideas) liberal about the Diane Feinstein’s of the country. True liberal policies and ideas were what made this country, and can make it great again.

    • I only discovered this a few months ago. I read an article that referenced a “fascist” and decided to look for a formal definition. In the process I discovered that the formal definition of “liberal” equates almost exactly with what we call “libertarian” today. As for the people who call themselves “liberals” or “Progressives” today, their philosophy is almost entirely communist. Of course that is a dirty word and no one would want to follow communists so they call themselves Progressives.

      I agree that true liberals — very close to what we call libertarians today — are a very important element that we need to return our nation to greatness.

      • One would think that people who call themselves Libertarians are distinct from Progressives but that isn’t true. Hayek and von Mises yes but not the current crop. If you bin the issue space into social, economic and international Libertarians agree with Progressives on 2 of the 3 bins. They only side with small government conservatives on economic issues. Libertarians are actually anarcho-capitalists who have more in common with the Social Revolutionaries of pre-Revolutionary Russian than they do with either larger or small government conservatives.

        Communism is subspecies of Fascism. The first Progressive hero was Benito Mussolini. After the Bolsheviks seized power the Progressive movement went in two directions. Many went with Lenin but a surprising number stayed with Il Duce and moved on to Hitler. Since the end of the Cold War all the Fascist colors of the rainbow have made their peace and Progressivism became a generalized Fascism.

        • >> If you bin the issue space into social, economic and international Libertarians agree with Progressives on 2 of the 3 bins. They only side with small government conservatives on economic issues.

          Your logic is upside down. Of course the libertarians agree with progressives on 2 of the 3 bins! That’s because liberals are, indeed, mostly small government on those two bins, and libertarians are small government on all three. It’s “small government conservatives” who are only small when it comes to taxes, and a very narrow subset of personal rights.

          >> Libertarians are actually anarcho-capitalists who have more in common with the Social Revolutionaries of pre-Revolutionary Russian than they do with either larger or small government conservatives.

          So much wrong here. Russian Esers (SRs) were not anarcho-capitalist in any way, shape or form. Which should be plenty obvious from the fact that the full name of the party was Socialist Revolutionary Party (and not “Social”). And they were, indeed, very much socialist and collectivist – their main difference with Bolsheviks being that Esers were not Marxist (i.e. they saw socialist as an end in and of itself, not as a “transitional period on the way to communism”), and that they were representing the interests of the peasants, not of the factory workers and other proletariat.

          Anyway, anarcho-capitalism, by definition, rejects state. Most libertarians do not reject state, and recognize that state should exist to provide defense against foreign threats, protect lives and property of citizens, and enforce contracts between them.

    • If I’m not mistaken, Don Kates is also an alumnus of Reed College, home of the Reed Shooting Sports Kollektiv.

      http://www.rssk.org/rssk/news.html

      Also, he doesn’t live “atop a mountain” but in the foothills of the Cascades, and to say more would be telling. 😀

      More of his stuff:
      http://www.independent.org/aboutus/person_detail.asp?id=739

      I agree on the liberal label. It has been thoroughly co-opted by a bipolar-disordered political status quo. It needs to be reclaimed as per its Indo-European root, leudh*, meaning, “the people as a whole.”

  15. Aside from all the gun pop culture stuff, this is the type of thing that keeps me coming back to TTAG. good work. More please.

  17. HOO-ahh!! Thanks for posting the video, great historical/philosophical background. If he’s been shouting against the anti-gun madness all these years, no wonder “he lives at the top of a f***ing mountain.” 🙂

  18. “Not only should there be complete liberty in matters of religion and opinion, but complete liberty for each man to lead his life as he desires, provided only that in so he does not wrong his neighbor.”
    -Theodore Roosevelt

  19. I learned a huge amount of information about ConLaw and criminology from Don himself at monthly meetings we used to have in San Francisco called “the Second Amendment Society.” Several of us computer nerds would drive up to SF on the appointed days to listen and learn from Don. The man is a treasure and a masterful assembler of knowledge.

    For those who have never heard of Don before, I’ll tell you how prescient Don was: Don told us (back then in the early 90’s, the last time there was gun control hysteria like we’re seeing now, as a result of workplace shootings and rampant gang shootups in major urban areas) that the reason why the Second Amendment never got a fair hearing at the SCOTUS was because the cases where it was mentioned that came before the court involved criminals. Don correctly predicted that the Second Amendment would prevail, but only if the case were structured properly: A plaintiff of one (preferably more) law-abiding citizen(s) who were being denied their right to self-defense (and nothing else but – ie, don’t try to wrap hunting, gun collecting, etc into the case – ONLY self-protection) was abrogated by gun control laws. Don also predicted that the case would have to arise out of either DC or Chicago (because you need to have a case in a jurisdiction where the gun control was “complete” – leaving you with no gun at all) and that the preference would be for DC, because it would enjoy a faster route to the SCOTUS, and because the political class in DC was so cocksure of their stance on gun control that if they lost at the Circuit Court level, they’d appeal. In hindsight, if DC gun-grabbers had been smart (and they never are), they’d have stopped when Heller won the first time. By appealing to the SCOTUS, they made it national case law.

    Heller was structured exactly as Don said it would need to be to obtain a hearing in the Supreme Court. Moreover, Don also predicted that the NRA wouldn’t be part of the lawsuit early on, because the NRA lawyers were scared of taking a case to the SCOTUS.

    Then the next big case would be ‘incorporation’ through the Fourteenth Amendment (a ConLaw concept I’d never heard of before I met Don) and that case would come about only if the first case was won (ie, the case of “Do you have a right to self-defense, and is this part of the Second Amendment individual right?”) and Chicago would be a good venue for the incorporation doctrine, since their gun control law is not only a state issue, but a local issue as well, and the incorporation doctrine was used to confer First Amendment and Fourth Amendment rights in states and cities with laws abusive of those liberties.

    While most younger gun rights activists and proponents might not have heard of Don Kates, you should read up on his work, because he was one of the very few people in the courts and law journals 20+ years ago, plowing a furrow through very rocky ground indeed.

  20. Great article… and he’s right here in green ‘ol WA state! Men of his generation, who defended the rights of people in the South to vote in spite of KKK oppression, truly are national treasures. Glad to hear he’s still living life according to his principles and using his intellectual prowess to advocate for a truly just and free country.

  22. He is a great author and his work with Kleck is good too. I am an FSU student where Kleck is a professor so their work has had extra interest to me

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