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Kates, Don B., Jr. (1941-)

[The following was published in Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law (ABC/Clio, 1st ed.: 2002).]

 

Don Kates’ scholarship and litigation have played an important part in the modern renaissance of the Second Amendment. But vastly more important is Kates’ role as the ultimate networker of scholars and opinion leaders. Along with Stephen Halbrook (q.v.), Kates deserves the primary credit for the evolution of Second Amendment scholarship into an important topic of scholarly interest.

After growing up in the San Francisco Bay area, Kates matriculated at Reed College. He then attended Yale Law School, and served as a law clerk for the famous radical attorney William Kunstler.

Kates spent one law school summer in South as a civil rights worker. Like many other civil rights workers, he carried firearms for personal protection against the Ku Klux Klan and other violent white supremacists whose attempts to murder civil rights workers were tacitly supported by local sheriffs.

After graduating from Yale, Kates went to work for California Rural Legal Assistance and the San Mateo Legal Aid Society. In 1969, he was awarded the Reginald Heber Smith Medal by the National Legal Aid and Defender Association, as poverty lawyer of the year. The award was partly based on his work in the case of Damico v. California [389 U.S. 416 (1967)] in which the United States Supreme Court ruled that persons wishing to sue under Section 1983 of the federal civil rights law do not need to pursue administrative remedies first. (Kates’ name does not appear on the brief in the case, because he had only been practicing law for six months, and the Supreme Court Bar requires five years of practice before an attorney is admitted.)

Kates has litigated scores of firearms law cases. His most notable victory is Doe v. San Francisco [136 Cal. App. 3d 507 (1982)], in which the California Supreme Court ruled that San Francisco’s handgun ban was contrary to a state law restricting local firearms ordinances. He is a founding partner of Benenson & Kates, a bi-coastal law firm which is the first national law firm specializing in firearms law.

Kates served as a Professor at St. Louis University Law School from 1976-79, where he taught classes on Federal Courts, Criminal Law, Criminal Procedure, Constitutional Law, and other subjects. More recently, Kates has served as an Adjunct Professor at Stanford Law School, where he co-taught a class on firearms law and policy.

He is currently at Fellow at the Pacific Research Institute for Public Policy, a San Francisco think tank.

Opinion editorials by Kates have appeared in New York Times, Wall Street Journal, Christian Science Monitor, and many other newspapers. He has edited two books: Restricting Handguns: The Liberal Skeptics Speak Out (1979), and Firearms and Violence: Issues of Public Policy (1984). Along with Gary Kleck , he co-authored The Great American Gun Debate: Essays on Firearms and Violence (1997).

But as a writer, Kates’ greatest significance his is law review articles. In 1983, the Michigan Law Review published Kates’ “Handgun Prohibition and the Original Meaning of the Second Amendment,” which was the first in-depth treatment of the Second Amendment to appear in a top-five law review. When Attorney General John Ashcroft announced in May 2001 that the Second Amendment guarantees an individual right to arms, the Kates article was among those cited by Ashcroft.

The Michigan article was a well-written synthesis of work by other scholars, but its importance derived mainly from the prestige of the Michigan Law Review. Kates’ greatest theoretical contribution to Second Amendment scholarship was “The Second Amendment and the Ideology of Self-Protection,” which appeared in Constitutional Commentary in 1992. Drawing on numerous sources from the Founding Era, Kates provided the first in-depth scholarly exposition of the Second Amendment a guarantee of the right of personal protection against criminals. Citing American Founders and other sources, Kates argued that the Framers of the Second Amendment saw no distinction between resistance to a lone criminal, and resistance to large army controlled by a criminal government. The difference was only quantitative (more criminals to resist) rather than qualitative; good people had a right to use arms against criminal violence, no matter whether the perpetrator was a lone criminal, or a despot with many accomplices. Hence, the Second Amendment (originally described mainly as a right to resist tyranny) encompassed a right to resist more mundane criminals.

His other notable contribution to Second Amendment theory is “The Second Amendment and States' Rights: A Thought Experiment,” co-authored with Glenn H. Reynolds in the William Mary Law Review. Kates and Reynolds explored the “state’s rights” theory of the Second Amendment (that the Amendment is only a guarantee of a state government’s power to maintain a state militia), and argued that the theory is internally incoherent, and leads to dangerous policy results.

Kates has also written extensively on criminological issues related to firearms. By far the most important of his policy articles is Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda?,which appeared in a symposium issue of the Tennessee Law Review in 1994. Along with several co-authors from medical and related disciplines, Kates surveyed the “public health” scientific literature on guns, and delivered a scathing critique accusing the public health authors of fraud, extreme carelessness, willful blindness, and a host of other errors. Defenders of the public health literature have tended to acknowledge the accuracy of Kates’ claims about the articles he critiques, but have argued that other articles are not so flawed.

Media treatment of the gun issue is another of Kates’ recurring topics, most recently in his 1997 book. He argues that media bias against gun owners poisons the political debate, and frightens many gun owners into a “no compromise” mentality.

Kates’ greatest significance, however, has been his tireless work as a behind-the-scenes evangelist of the Second Amendment. There are literally scores of professors and journalists who have changed their mind on the Second Amendment and gun control after being contacted by Kates and reading his research.

There are also literally scores of academics and other writers (including myself) who were brought into the gun issue, or brought along in the gun issue, by Kates and his incessant networking. From the late 1970s through the mid-1990s, there were very few scholars who looked favorably on the right to arms who were not connected in some way to the Kates network. More recently, Kates has slowed down, and the number of firearms law and policy researchers has grown beyond the size of a manageable network, but this very growth is a testament to the effectiveness of Kate’s work in prior decades.

While vigorously opposed to the prohibition of any type of firearms, Kates differs from many Standard Model scholars in that he finds no constitutional impediment to many regulatory forms of gun control. Stephen Halbrook has denounced Kates’ defense of certain gun controls as “Orwellian newspeak.”

Because Kates (in sharp contrast to John Lott) tends of avoid electronic media (including the Internet), he has not created the kind of high profile that attracts personal attacks from gun control groups. Contributing to Kates’ relatively low public profile is his utter lack of interest in working with grassroots gun rights activists, and his non-involvement in politics.

 ---David B. Kopel

 See also: Academics for the Second Amendment; Halbrook, Stephen; Kleck, Gary; Quilici v. Morton Grove

Selected works of Don Kates:

Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983).

The Second Amendment and the Ideology of Self-Protection, 9 Const. Comm. 87 (1992).

Don B. Kates, Henry E. Schaffer, John K. Lattimer, George B. Murray, Edwin H. Cassem, “Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda?” 62 Tenn. L. Rev. 513 (1994). Reprinted (with some changes) in David B. Kopel, ed., Guns: Who Should Have Them? (1995).

Don B. Kates and Glenn H. Reynolds, “The Second Amendment and States' Rights: A Thought Experiment,” 36 William & Mary Law Review> 1737 (1995).

Gary Kleck and Don Kates, The Great American Gun Debate: Essays on Firearms and Violence (1997).

 

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