The Former Civil Rights Activist Who Created the Right to Bear Arms

By Ray Downs


Image via TheTruthAboutGuns.com

The first time I saw a gun was in high school, when a stoned friend of mine decided it would be funny to point one at my head.

Five very long seconds later, he put the gun down, laughed his ass off, and I didn't end up on the local news that night. But with the state of the debate over guns the way it is, I can't help but think that if I had been killed like that, gun rights advocates would use the case to prove their point that we need more guns, not fewer. They would have said that my death just proves that crazy people on drugs need to be put in jail so they don't shoot people. Or they'd say that somebody else with a gun should have been around to shoot my friend before he shot me.

I've been having trouble understanding these lines of reasoning, so I called up Don Kates—one of the men responsible for the progun rhetoric of today.

Kates is a Yale-educated lawyer who started his legal career fighting for civil rights in the South during the 1960s. A few years later, however, he ended up at the NRA, crafting legal arguments and publishing academic papers that defended the Second Amendment and inspiring many of the gun rights mantras people use today. His work has been used over the years by lawyers on behalf of gun rights and was an important factor in Justice Antonin Scalia's decision in DC v. Heller, the Supreme Court case that ruled individuals, as opposed to militias, have a constitutional right to own and use a gun. 

That case is a big reason you hear a lot of people these days saying, "What part of 'shall not be infringed' don't you understand?" And Kates is a big reason gun rights proponents are so confident they are right.

VICE: You describe yourself as a long-time liberal Democrat. So how did you become a gun rights scholar who worked for the NRA?
Don Kates: From my teenage years, I had always had an affection for guns. And when I was a law student, I became a civil rights worker with the Law Students Civil Rights Defense Council, an organization that's probably been defunct for decades.  

As a civil rights worker in the South, I carried various guns—as did many other whites in the movement—for protection. And Southern black civil rights activists were almost all armed, since they were largely rural Southerners. I recall one night when I sat watch outside the home of a black teacher who had been threatened along with five or six blacks. I was underarmed since what I had was the ineffectual M1 carbine. I didn't know any better. The blacks with whom I was sitting watch all had shotguns or battle rifles.  

The image of gun-toting civil rights activists is one that’s rarely depicted, especially given their reputation of nonviolence. But there were guns around. Even Martin Luther King, Jr. allegedly had an "arsenal" in his home. Why do you think it's not talked about very often?
I assume that is because it would contradict the pacifist image of civil rights activists. The publicity we received came from journalists who were themselves quasi pacifist and antigun, so self-defense and gun ownership were not things they were attuned to, much less what they wanted to portray.

You've said that you don't support openly carrying weapons, but your arguments have been used by those who do, like the guys who walk around organic coffee shops in Portland with loaded assault rifles. Do you have any regrets about supporting these kinds of people?
There are people who seem to use their gun as a statement. They walk around with it like a declaration of their views. I've never done that sort of thing and it does seem to me to be extreme, although I wouldn't condemn it—I just think it's foolish. I agree with their statement, I don't think they need to express it that way.

What about militias who want to make more than a statement?
The militia movement seems to me to be a misunderstanding of the Second Amendment. A militia is something that’s authorized and chartered by the government, which they are not. Look, I'm not opposed to them having guns or operating collectively with guns. But they're not what George Washington and Thomas Jefferson would have called a militia.

But as a general proposition, I don't regret what I've said and my conclusions in various scholarly articles. I believe, as the Founding Fathers did, that law-abiding people owning and carrying guns is a positive and useful thing.

The US has a lot of gun crime. But gun rights groups tend to say that the only way to stop it is with more guns. Please explain this to me.
If we want to stop gun crime tomorrow, all we need to do is build a bunch of federal prisons and declare if you were found with a gun and you had a felony, you go to jail for 15 years. But that doesn't happen now because we don't have the prisons—our prisons are full of other criminals. And we're not willing to spend the money to build the prisons and hire people to run the criminal-justice system until the people who commit these crimes are all in prison.

There are less than a million violent criminals—they're a tiny minority. And if we wanted to, we could put them all away. But it costs too much money, so we don't.

But the US has the highest incarceration rate in the world. So do you think we're just putting the wrong people in prison?
No, we're not putting in anywhere near enough! It's not a failure of the law, it's a failure of the law-enforcement people. And a failure of the entire society in not being willing to build more jails and staff those jails.

Should there be any limits to what kinds of guns or ammo people should be able to have?
No. But there are some people who shouldn't be able to get them, like people who have felony convictions. There should be a lot more enforcement of those laws.

But a person isn't a criminal until he commits a crime. And if he buys an assault rifle and uses it to commit his first crime, isn't it too late?
It would be if it was a widespread phenomenon. But virtually every murderer has a long criminal record. Sometimes their crimes have only been misdemeanors, but that is deceptive. Patrick Purdy used an AK-47 to attack a schoolyard in Stockton, California, in 1989 and he killed a teacher, five children, and himself. He legally bought those guns in California. Why? Because his previous robberies and other felonies had all been charged as misdemeanors by lazy prosecutors who didn't want to take the effort to convict him of a felony.

What are your thoughts on the recent compromise on background checks for gun purchases reached in the Senate this week?
As a constitutional matter, I see no objection to background checks. As a prudential matter, they cost far more than they accomplish. Criminals do not buy guns at retail nor in any manner that background checks would deal with. But, given the vast amounts of waste in federal spending, the addition of one more wasteful program does not disturb me that much. 

What about closing the gun-show loophole? Wouldn't that help prevent criminals from getting guns?
In theory, it might help in a few cases, but I am unaware of any data showing that criminals get guns from gun shows. They rely on relatives, friends, or the black market. Expanding background checks, though not irrational, is unlikely to help much.

Follow Ray on Twitter: @RayDowns

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Guns, God and No Democrats at Knob Creek

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