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Guns and Violent Crime
September 21, 1999
Don B. Kates Jr., Joyce Lee Malcolm


Introductory Remarks

Welcome, ladies and gentlemen. Good evening and welcome to our program. My name is David Theroux, and I’m from The Independent Institute. Our program tonight is a special one. I’m delighted to welcome all of you here tonight. I’m sorry about the cramped quarters, but we have a capacity crowd. If any of you would prefer to be a little more comfortable, you’re welcome to watch the program also on closed-circuit TV next door in the library or upstairs. The program that we’re holding tonight is actually part of the Independent Policy Forum, a series of lectures and seminars The Independent Institute sponsors on a monthly and bi-monthly basis on many different issues. For those of you new to the Institute, hopefully everyone got a copy of our packet which will provide background on our program and many of the books, our quarterly journal, The Independent Review, and other publications, including on the issue that we’re going to be discussing tonight. We are what’s called a public policy research institute. We’re an academic research institute. And as a result, we have many scholars and fellows at universities in the United States and around the world who are engaged in research in almost all of the social sciences.

The program that we have tonight, as I said, is part of a series. In your packet, you’ll find a sheet describing tonight’s program, which also has a schedule of events coming up. For example, on October 20th, our program will focus on the topic of “Virtual Money, Privacy, and the Internet.” The speakers will be Dr. Richard Rahn, former chief economist for the US Chamber of Commerce, senior fellow at the Discovery Institute and president of Novecon Corporation, who is author of the new book, The End of Money and the Struggle for Financial Privacy. We’ll also be having Peter Thiel, who is the Chairman and CEO of a company now involved in this field called Paypal. Peter has also been a research fellow at the Institute and so it’s nice to have him back. On November 17th, we will also be holding a program on “The Civil War: Liberty and American Leviathan.” And the subtitle of that is Human Liberty and the Roots of American Leviathan. The speakers of that program will be the historian Henry Mayer, who is author of the award-winning book All on Fire: William Lloyd Garrison and the Abolition of Slavery, and Jeffrey Rogers Hummel, who is professor of economics and history at Golden Gate University. He’s author of the book Emancipating Slaves, Enslaving Free Men. And the part of the issue of this particular program is its relevance to modern debate.

For this evening, we’re indeed privileged to have two of the leading scholars and writers in the field of firearms and the Second Amendment and issues of violence and so forth. And it’s really a treat to have them both here. Drawing on her acclaimed book, To Keep and Bear Arms, which I hope all of you have either had a copy or will be able to get one before you leave tonight—historian Joyce Malcolm will be examining the issues of ownership and use and control of firearms in civil society. As we all know, the school massacre in Littleton, Colorado and the shooting of Jewish children in Los Angeles as well as drive by shootings and a host of other calamities and atrocities have gotten national attention. And that seems to be escalating. But the questions, I think, to ask are: How do we protect the innocent from violence in American society? Can government really protect the citizens against gun-related violence? What is the record of individual self-defense in Britain and the United States and in other countries? What is the record of gun control of different types? What’s the historical basis of the Second Amendment? And the list goes on.

Our second speaker will be civil rights attorney and criminologist Don Kates, who will be commenting on Professor Joyce’s talk and discussing other aspects of these issues. Joyce Lee Malcolm is Professor of History at Bentley College, visiting scholar in security studies at Massachusetts Institute of Technology and founder-director of the New England Heritage Society Center. She’s a fellow at the Royal Historical Society. She received her Ph.D. in history from Brandeis University. In addition, she’s been a visiting fellow at Harvard Law School, Fletcher Jones Foundation Fellow of Huntington Library and many other distinguished positions. In addition to also from Harvard University Press as well as the two-volume book, The Struggle for Sovereignty, Caesar’s Due and The Scene of the Battle: 1775. I’m very pleased to introduce Professor Malcolm and this is her book.

Joyce Lee Malcolm

Thank you very much. It’s a great pleasure to be here today. When I first started to study the origins of the right to bear arms, I was always being asked: how did a nice girl like you get interested in a subject like that? This is true, and I was always asked that. Nobody asks me that anymore. And it seems to me there are three possible reasons: either because I’m not considered nice anymore, or I’m not considered a girl anymore—and it’s never been politically correct anyway to call me that—or the third reason, which I would like to believe is the real reason and that is because at this point people have realized that the right to bear arms is a serious subject and in fact one of the most serious rights that people have, and that it deserves some respect. It isn’t one of those unpleasant things that nice people don’t talk about or study. There’s evidence that I think this is the correct reason. And I’d like to just give you a sense briefly of the change in the attitude despite the recurring atrocities and the kind of press tempo and drum beat after each of them that something needs to be done about guns.

There has been a change in attitude toward the right. Looking back—in 1975, the American Bar Association, the most distinguished organization of the country’s lawyers, appointed a committee to look into the legal basis for firearms ownership and the intent of the Second Amendment. And this committee in 1975 found that there was more disagreement and misunderstanding and controversy over this right than any other constitutional issue. But looking at the intent of the Second Amendment, they came to this conclusion, which they published in the report: “It is doubtful that the Founding Fathers had any intent in mind with regard to the meaning of this amendment.” They presumably put it in because they just needed one more. The amazing thing is that this was published in a serious report in the American Bar Association’s reports for that year, and nobody seemed startled by this. In 1983, the Supreme Court refused to hear the Morton Grove case. Morton Grove was the town that had banned handguns, and it consistently refused to hear cases on the Second Amendment and no Federal Court had ever held that a law that restricted guns violated anyone’s Second Amendment rights.

Lawrence Tribe, who’s the most distinguished constitutional legal scholar in this country and teaches at Harvard Law School, wrote his classic textbook, American Constitutional Law in 1978. He took 276 pages to talk about the First Amendment. I mean, really a book’s worth: 276 pages. The Second Amendment got a footnote, not even in the section on rights, but it was in a section on the relationship between the Federal Government and the states. And he had this to say. He said the Congressional debates, in the footnote, indicates that the sole concern of the Second Amendment’s framers was to prevent such federal interferences with state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy, thus the inapplicability of the Second Amendment to purely private conduct. Ten years later in 1988, the second edition came out. The footnote was a little bit longer; he added a little more—but basically had the same message. This is what the situation was up until the last few years. There’s been a shift, and I’ll give you some examples. There is an emergence now of what is called the standard model interpretation based on quite a lot of the recent research that’s been done . The newest standard model, as it’s called, is the concept that there is an individual right. And actually it was the original model and is now the new standard model. Nelson Lund, who coined the expression, said the serious literature on the subject is virtually unanimous in concluding that the constitution establishes an individual right. So it’s very hard to get any serious scholarship where people find anything different.

In 1997, the Supreme Court heard the Brady Case. And it decided, of course, that the Brady Law was unconstitutional, not on Second Amendment grounds, but on issues of what the Federal Government can require of the states. They never really were asked to decide on the Second Amendment. However, in his concurring opinion, Justice Thomas referred to the fact that the Second Amendment hadn’t been an issue but he wrote, marshalling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the right to keep and bear arms is, as the Amendment’s text suggests, a personal right. And they then listed my book and some things Don has done and various other people. But, I mean, he went out of his way to point out that there was this tremendous or impressive array of scholarship that now said that. And then he went on to say that perhaps at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms has been justly considered as the palladium of the liberties of a republic. He was basically inviting a case.

In April of this year, a Federal Court did overturn a conviction and the taking away of someone’s guns on the basis that their Second Amendment rights had been violated. And this was a Federal Court in Texas, in April, and that case is now being appealed. Last week in the Globe, they still insisted in an article that the Second Amendment didn’t protect an individual right. They still insisted that no Federal Court had found that anyone’s Second Amendment rights were ever violated but nonetheless there has been a decision.

Last month, Lawrence Tribe, in the latest edition (every ten years he comes out with a new one, and these texts of his are extremely influential, because this is the book that the law students across the country read and study in constitutional law) the Second Amendment has graduated from a footnote to ten pages. Ten full pages, and it isn’t easy for someone, like Tribe, who has dismissed it for 20 years, to change his mind. He says of it, “The Second Amendment provides fertile ground in which to till the soil of federalism and to unearth its relationship with individual as well as collective notions of right. Few constitutional provisions offer a richer opportunity to sort out the strands of one’s approach to constitutional interpretation.” He concludes that the Amendment recognizes a right, on the part of individuals, to possess and use firearms in the defense of themselves and their homes, although he says this isn’t clear what the parameters are and that more study needs to be done. For this change, which is substantial, and was only last month in his new book, he has all ready gotten substantial hate mail from his former supporters.

But it’s interesting because of course the American people have always believed that they had a constitutional right to be armed and all of these surveys have found that overwhelmingly they believe that. And yet the legal experts in the 20th century have found numerous ways to interpret and misinterpret and nullify that individual right. The argument still continued despite all of the evidence that’s been brought out. And I think the reason is clear that behind the Second Amendment are people’s views of how best to reduce crime and to make the streets safe and the Second Amendment somehow has gotten in the way of all of that. Tribe makes a comment about it that I think is very telling. He refers to it, in his words, “the poignancy of the topic of gun control and the inescapable tension for many people on both sides of this policy divide between the reading of the Second Amendment that would advance the policies they favor and the reading of the Second Amendment to which intellectual honesty and their own theories of constitutional interpretation would drive them if they could bring themselves to set their policy convictions aside.” And I have great respect for the man for saying that, at least coming out and saying that people’s policy issues have kept them from being intellectually honest about what the evidence seems to be saying. What I have done is to investigate the English legal tradition that the colonists had and the way that the English people developed this right and passed it on to America as a way of understanding what the Second Amendment meant. I’d like to sort of briefly go through what I’ve found out and then discuss the development of the Second Amendment, its language and the modern dilemma.

My current work is on the relationship between firearms and violence and the law in England, which is a somewhat different subject but very important, because there’s a tremendous debate in this country about whether more guns means less crime or less guns means less crime, or whether guns have no relevance whatsoever to the crime rate. And I’m hoping that my studies of England will help to at least nail down the experience of that one country. But I’d like to just briefly go through this history. And I hope that in your questions afterwards, you’ll have an opportunity to quiz me about anything that I haven’t done or that’s not clear or that you find of interest.

First of all, the English tradition was that the ordinary citizen had police duties. There were no police in Britain until the middle of the 19th century, and so everybody had a series of duties for which they absolutely were required to be armed. Your first duty was to protect yourself and your family and in doing so you were actually serving the public because you were preventing a felony. You were protecting yourself, but you were also keeping the peace. You had to take turns in villages standing watch and people, householders, had to take their turns, and if they were unable to for some reason or they were disabled or could not, then you had to hire a substitute. If you saw a crime being committed, you were to raise a hue and a cry. You were not to turn and look the other way. In fact if you did, you could be fined. You were to raise a hue and a cry and set out after the culprit. And the community was given 40 days in which to catch this person and bring them back to justice, otherwise the community had to make good, half of any loss that a person who was robbed had suffered. So there’s a real incentive to be involved. You were to join a sheriff’s posse if you were called. And of course we’re all familiar with the western posse, but this was the origins of it. You were to set out with your equipment and help the sheriff. And often, that meant leaving your community, going from town to town and county to county after wrongdoers. And then finally, if you were a man between the ages of 16 and 60, liable to serve in a militia, a citizen army and provide weapons, which you kept at home. Other people contributed weapons for the militia. And I’d just like to say that there’s a lot of confusion I think about the militia tradition.

The militia was not a voluntary organization. You were obliged to serve in the militia just like you might be conscripted to serve in an army. But it was felt to be a lot safer to have citizen soldiers than professional soldiers, citizen soldiers were your neighbors, they would never do anything hostile to their community whereas professional soldiers were regarded as having other interests and were often used by Kings to solidify their own rights and take away the people’s rights. And this tradition is something that we have inherited from the English, and which I think in fact, looking around the world today, makes a lot of sense. There are a tremendous number of countries that are ruled by their army or by someone who was formerly an army general. And once armies get involved in politics, it’s extremely hard to get them out of it. So the militia was the English alternative and they were unwilling whenever possible to tolerate an army, especially in a time of peace. Blackstone in 1765, in the 18th century, not long before the American Revolution, talked about the English Army. And he said, “the Army was to be looked only as temporary excresences bread out of the distemper of the state and not as any part of the permanent and perpetual laws of the kingdom.”

I’d like to just show you a few transparencies that show pictures of early guns, to give you some sense of what they were like in these early days.

This is a picture of the German monk who was credited by the Europeans with having come up with the invention of gunpowder. And Europeans being Europeans, they immediately thought of how they could use it as a piece of military equipment.

And these are pictures of the very earliest firearm which was called a hand cannon. It had a tremendous kick and you notice these people are wearing armor, so this was back in the 14th century. A kind of loose stone was put in there and shot out. It made a tremendous amount of noise, created a lot of smoke. It was not very effective. But they kept working at it. They were sure that somehow there was an important weapon here.

And in the 14th century, it got further developed, so that it was a little bit safer. And in the 15th century, the man got a little bit further from the match that had to light that gunpowder. It was still a very primitive weapon, handheld, but it was not quite so fatal to the person who shooting it. And then in the 16th century, they came up with a matchlock rifle, which is an extraordinarily heavy one. Far, far heavier than the rifle, the Brown Bess that was used during the American Revolution. It had a long, heavy metal barrel. It took something like 43 steps in order to fire this. But again, despite the fact that it was extremely clumsy, heavy, expensive and dangerous, it became the major weapon of the infantry.

And these are some pictures of some of the maneuvers that you have to go through in order to fire it. There were a lot of problems with it. The long stick that that soldier is holding, the musketeer, was to prop up this rifle because it was so heavy that you really had to kind of rest it in this notch. He has around his shoulder little pouches made of leather that hold measured amounts of gunpowder, and then you use the stick to prime it. He also has around his shoulder what’s called match. And that was a long string that burnt very slowly that you would light the gunpowder with when you were all done getting this loaded. This was the final stages of propping it up. It was extremely ineffective as a weapon. If it rained, the match got wet and it wouldn’t light. So you really did have to keep your powder dry and your match dry. If the gunpowder was busy sprinkling around and didn’t light right away, you had to either light it again with the possibility it might flare up at you or let it sputter out. He was surrounded with these little containers of gunpowder. He had gunpowder he was busy pouring in, he had match in his hand, and there were a lot of serious accidents because it was like being a huge bomb. Sometimes too the barrel itself would split so it was a difficult weapon to use, but it had the wonderful advantage that it punctured armor and also horses. Not nice, but this is one of the early handguns. You notice this is someone in armor. The cavalry felt that they needed to have some kind of comparable weapon it was not very effective it’s a bit lighter.

And this is one of my favorites—these are all from early military manuals. This one is called,“If at first you don’t succeed.” These are two musketeers firing at each other in that first picture . And then on the top frame on the right, they missed so they’re using their sticks, their guns rather as clubs. In the middle, they’re reduced to using their helmets to hit each other and the forked stick which was made of metal too was always handy. And then the bottom they’ve taken off their little belt full of these cartridges/pouches that held the gunpowder and are hitting each other with that. And then finally they just get reduced to fighting it out hand to hand. So that it had its problems but it was a weapon with a lot of potential uses in all sorts of different ways. And then this was one very nice idea of how to use it. This was called the tree disguise. You could hide, although it’s a rather strange-looking tree and sneak up on the enemy with that.

And then finally, this is a picture of a siege tower, which could be cranked up. And at the top, you notice there’s someone with a musket on the left, and on the right someone with a large stone. And what I like about this picture is it shows that as firearms are coming in, we still have the use of extremely primitive weapons side by side. So it sort of gradually kind of filters in while other weapons and armor are still being used. It took some time before armies shifted.

In the 16th century, when you have this matchlock musket, you begin to get lighter weapons that ordinary people use. And in England, there was no problem about people having these weapons because in fact they needed them for all of these peacekeeping duties. There were some restrictions, I should say, on handguns and crossbows which were easily concealable and in order to have a handgun, you were supposed to have income of a certain amount. However, it was widely violated, and very few people ever seemed to get prosecuted for just having a handgun or a crossbow. There were religious restrictions because Catholics were believed to be potential subversives in the Protestant state. And there were game acts. Anyone who could not have an income and property to qualify to hunt game was not supposed to have a gun to hunt game. You could have a gun at home, but you weren’t to use it shooting at animals. That was fine because most people who went poaching didn’t want something as noisy as a gun anyway and they still don’t, so they set nice quiet snares and they could then come quietly later and pick up the animal.

At any rate, during the middle of the 17th century, there was a great civil war between the King and Parliament, and they fought over control of the militia and control of the weapons in the country. The King was overthrown and Oliver Cromwell, who eventually took control, used the militia of that time to disarm his enemies, to disarm anyone who seemed suspicious. And after he died, the King, Charles II, was restored in 1660—and began to clamp down on firearms. They were everywhere. There had been a civil war, his father had been overthrown and executed, and he did not want to allow these weapons to be used by his enemies. So he had a militia but it was what people then called a select militia. It was politically skewed. It was used to disarm anyone who was suspected of being potentially against the government. Gunmakers had to report on sales and their imports were forbidden. There was a game act passed which actually prohibited anyone who did not have an income sufficient to hunt from even owning a gun. However, it doesn’t seem ever to have been enforced by the country gentlemen and their gamekeepers who were supposed to enforce it.

At any rate, in 1688, there sat on the throne of England, James II, who was a convert to Catholicism and who wanted very much to control things with a standing army and to take away people’s rights and convert them from the Protestant faith to his own. And at that point, some of the important people in the country sent for James’s son-in-law, William of Orange and his daughter, Mary, who was a Protestant and asked them to come save their religion and the rights of Englishmen. William and Mary came to England and James fled and the Parliament, a kind of convention Parliament, was called to put William and Mary on the throne. But before they did that, the people who were there felt that it was important to shore up their rights so that this kind of thing wouldn’t happen again. They wouldn’t have a king who tried to govern with an army, who tried to disarm his opponents. And in drawing up the English Bill of Rights, which was drawn up about a hundred years before our own, they included for the very first time, a right for people to have firearms. It read, “The subjects which are Protestant may have arms for their defense, suitable to their conditions and as allowed by law.” When the first versions of this included the phrase “for their common defense,” that people should provide arms for their common defense and that was excluded in the last version of it, so that it came down as exclusively an individual right. The House of Lords had decided they wanted nothing to do with a common defense, for fear that it meant arming the mob in some way. So it was very exclusively an individual right. The clauses at the end that people have this right suitable to their condition or their status and as allowed by law might have allowed for restrictions but a series of court cases in the 18th century made it utterly clear that this was an individual right for all Englishmen. Catholics did not have the right but nonetheless, they were allowed to have weapons in their home for the defense of themselves and their families. So it wasn’t a right, but it was basically something that they were permitted to have because they needed it.

This individual right in 1765 was given a new interpretation by Blackstone when he published his Commentaries on the Laws of England, which was about ten years before the American Revolution and was a very influential book in America. Blackstone said that it was important that this be a right and he listed all the rights, but he said that these rights would be just basically what our founders would have called “parchment barriers” if there weren’t other rights that enabled them to be enforced. And he called these “auxiliary rights.” One of them was having a Parliament and the other was limits on the King’s powers, appeal to the courts, petition to the King or Parliament. And the last thing he said was the right to have arms. He called it the fifth right of the subject, having arms for their defense. He said it was a public allowance under due restrictions of the natural right of resistance and self-preservation when the sanctions of society and law are found insufficient to restrain the violence of oppression. In other words, the right of the people to be armed meant that not only could you protect yourself, but if there was ever some tyranny, it would enable the people to defend themselves and get back their rights. And so it had this second power to basically shore up their other rights. It never mentioned the militia in any of this. The militia was under the control of the government and wasn’t the main source of power. It was the people who were to be able to vindicate their own rights.

In America, the British tradition was copied. People were to protect themselves and their family. They actually had watches and then in America, there was an even more broad right: there were no limitations based on religion there was no limitation based on the type of weapon. The Founding Fathers and the earlier colonists were just happy to have people armed, and in fact many of the colonies insisted that every household have a certain amount of weapons for everyone in that household and there were certain laws that if you went beyond your own home and out into the countryside, you had to have weapons with you just in case of anything. So you were really responsible for protecting yourself and protecting your community. There was a militia created and again it was sort of a citizen army and a defensive army, but it was under the control of the government, although the Americans tended to elect their own officers which the English certainly didn’t do. During the American Revolution, the Americans were very anxious about this British standing army and of course uneasy about the militia. I should say that the militia, being under the control of the government, it was unsure what was to happen to it. The British officers and Gage had a right to disarm the American militia if they felt that they ought to. They didn’t trust the militia because it was made up of American colonists. The colonists didn’t trust the militia because the British had control of it. And so they founded the Minutemen as an alternative to the sort of established militia, and both sides kind of took the equipment from the regular militia.

During the American Revolution, the states had to create their own constitutions and many of them put in rights for people to be armed. After the Revolution, of course, our constitution was eventually devised and after the discontent that people had because there was no Bill of Rights drawn up. There was not a lot of debate during the Convention about the Second Amendment and exactly what it meant. But if you look at the different versions of the Amendment and the comments that were made of it afterwards, it’s quite clear that an individual right was intended.

Of course, it reads, “a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Some people have claimed that this simply gave power over the militia back to the states.

The Constitution spelled out what the powers were over the militia. The powers over the militia were very largely in the hands of the Federal Government and the Second Amendment doesn’t say anything about that. It doesn’t move one way or another, it has really no impact on it despite Tribe’s first assertion about it. They sometimes claim that it’s just a guarantee that the militia will have a right to bear arms, but of course it doesn’t say the right of the militia to keep and bear arms, it says the right of the people to keep and bear arms shall not be infringed. Some of the changes made make it very clear what they intended. They rejected the idea that the militia be well armed, and in fact, that was left out. They rejected the notion that the militia be the body of the people, because that was in an earlier version and it was left out.

The reason that the militia clause is in there was that they very much favored a militia over a professional army, but did not want to say anything that seemed to distrust the army that they were going to need and which was also part of the Constitution. It seemed better to simply say that it was the militia that was the security, necessary to the security of a free state. The most important proof that an individual right and not a common right was intended was that the Senate was offered the phrase “for the common defense” to be added after “to keep and bear arms.” So it would have read that the people had the right to keep and bear arms for the common defense. If they had accepted that clause, then I think that the argument that it was just a collective right would have some ground. But they rejected that clause. They specifically left it out just as the English had in their right, coming down in favor of it being an individual right and not just for people to have for their common defense.

There has been of course since the 20th century a great parting of the ways between the English right and the American right. The English, because they don’t have an entrenched constitution, have to depend on Parliament to protect their rights. And Parliament, in 1920, passed a firearms act which requires (it seemed innocent enough) that if you want to have a gun and/or ammunition, you must go to your local police chief and he has to decide that you are a fit person to have a weapon and have a good reason for having that weapon. As I say, this was passed in 1920 after World War I, and there was a great deal of fear that men coming back brutalized by the War would really be violent and revolutionary. There had been a recent revolution in Russia. They were afraid of a Bolshevik Revolution spreading, and there was a large number of labor unions planning a general strike.

So it was really not because of an increase in crime, it was for fear of revolution that this law was passed, and Parliament was told that law-abiding people wouldn’t be bothered by this. And at first, of course, they weren’t. But what happened was that over the years, the law stayed the same, but there were secret memorandums from the Home Office, it’s like the Interior Department trying to reach police chiefs across the country, telling them what constituted a good reason to have a weapon. And over the years, they decided that protecting yourself was not a good reason; it should almost never be a good reason.

This started gradually, and then eventually in 1969, they stated that it should never be accepted as a reason. What is a good reason or what was a good reason to have a gun? If you belonged to a gun club, that was a good reason. If you were using it for sport, that was a good reason. But if you lived in a lonely spot, if you had a bank with money to protect or a shop, that was not a good reason. It was not considered a good reason ever to have a gun for protection.

In 1953, the English went even further and they passed something called the Prevention of Crime Act. And this act makes it a crime to have any implement whatsoever on you that you would use as an offensive weapon, which means that if someone attacked you, you couldn’t defend yourself with it. You cannot carry a walking stick for that purpose or a wrench or a pin or anything—it doesn’t have to be something that is a weapon per se, it can be anything that you would use to protect yourself. If you’re picked up by the police with such a weapon in your possession you have to prove yourself innocent. You’re guilty until you prove yourself innocent.

Audience Member

What if it were an umbrella?

Joyce Lee Malcolm

It would be illegal to carry the umbrella if you carried it for the purposes of using it against someone. If you carried it because it might rain, then it would be legal. So it was very, very strange—and I’d be happy to answer any questions about that. But they’ve gone to that extent. The result has been that since 1953, the English have had a rising rate of armed crime. They have been restricting and restricting firearms. In 1997, they banned virtually every type of handgun. And there was a hand-in of those handguns that 60,000 or so that had been licensed were handed into the government, and these people were supposed to be reimbursed. Despite the hand-in, despite these strict laws, there’s been an increasing rate of violent crime in England, and at this point, an Englishman is nearly twice as likely to be mugged as an American. Nearly one and a half times as likely to be robbed. And not only are you more likely to be burgled in England, but 50 percent of their burglaries are what they call “hot burglaries” when people are home, whereas in America it’s something like 13 percent. In America,clearly those who want to rob you don’t want you to be home, for fear that you might make trouble. In England, they know you can’t. They’d rather that you be home because then your alarm system is not on. The English government’s theory about why this is a good state of affairs is that they feel that if people don’t have weapons, then criminals won’t feel they need to have them.

I don’t want to take all the time, but I just wanted to give you a sense of how far we have come in different directions. We have an estimated 200 million guns, although there are also an estimated 20,000 laws infringing on our right to bear arms. I’m not sure about either of those figures since there are an awful lot of zeros in there. However, starting with this same right, we’ve now gone to very different extremes. Just a final note and that on the interpretation of the Second Amendment, because there’s still a tremendous drumbeat for stricter and stricter gun laws—that seems a very nice, convenient way of doing something in the face of atrocities that occur—to ban guns. And the reason that England was able to get that complete ban on handguns in 1997 was because of the Dunblane massacre in Scotland. There was a tremendous emotional response and the government, admitting that it wouldn’t do anything to stop crime, nonetheless felt it had to do something and so they banned all legal guns. However, we still have an extremely tough fight here because despite the evidence of scholarship, a lot of people just don’t want to recognize it.

And I’d like to just close with a comment of our first Chief Justice, John Marshall, an opinion in 1827, on how we ought to interpret the Constitution. He said “To say that the intention of the instrument, the Constitution, must prevail but this intention must be collected from its words—that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended and that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them nor contemplated by its framers, is to repeat what has all ready been said more at large and is all that can be necessary.” The Second Amendment has been very much in danger of being restricted into insignificance. And I hope that a serious look at the Amendment and the concentration of people on this important right will rescue it from that fate. Thank you.

David Theroux

Thank you very much, Joyce. Our next speaker, as I mentioned earlier, is Don B. Kates, Jr. Don received his JD from Yale University Law School. He’s taught law at Stanford University, St. Louis University and University of Melbourne. He previously worked for the late civil rights lawyer William Kunstler, whose some fame was his involvement, actually his membership in the Chicago Seven. Don has also worked with the California Rural Legal Assistance where he served as Director of Legal Research and Senior Litigation Attorney. In addition, he’s been trustee for the Poverty Lawyers for Effective Advocacy, Member of the California State Advisory to the US Civil Rights Commission, Director of Litigation and Deputy Director with the San Mateo Legal Aid Society, and the list just goes on and on. His books include Restricting Handguns: the Liberal Skeptics Speak Out; Firearms and Violence: Issues of Public Policy, which is a book that Don edited, and I worked with him and it was a real delight to be involved in that project. His most recent book is The Great American Gun Debate: Essays on Firearms and Violence with Gary Kleck. I’m very pleased to introduce Don Kates.

Don B. Kates Jr.

While on the subject of England and gun control, let me start out by talking a little bit about Bosnia. When Yugoslavia broke up, the army had been controlled by the Serbs. The Serbs ended up with the army. The Bosnians, who are Muslims, ended up with nothing. When the Serbs decided to make war on the Bosnians, England declared (pursuant to its arms control policies) a complete embargo on providing any arms. That was certainly useful to the Serbs. They had an army. The result with the Bosnians was 200,000 civilians murdered because they didn’t have arms. Eventually, the odd combination of the United States even Bill Clinton, Israel and various Muslim countries, armed the Bosnians, and they were able to bring the genocide or religicide, if you will, to a close. To the very end, England maintained its position of being opposed to arms and of course was also unwilling to do anything to help the Muslims outside of giving them arms. One of the things that we found in the Civil Rights Movement was that when the whites had all the arms, they used them. But when we had arms and we used the arms, the result would be government intervention. As long as we were going to be killed, nobody cared. But if there was going to be a war, it suddenly became clear to the powers that be that we needed to have enforcement to stop both sides from killing each other.

Now let me move to East Timor, a subject that’s been much in the news lately, although the facts I’m giving you, or many of them, have not been reported, at least not in this context. East Timor is an obscure island in what used to be called the East Indies. It was owned by Portugal for hundreds of years until 1975, when Portugal gave up its empire. There were independence forces in East Timor, which was one of the reasons Portuguese left. They had many other reasons for leaving. Basically, they decided that being an empire wasn’t very useful anymore after having fought for ten or 12 years or so in Angola in a very brutal guerilla war. So the Portuguese moved out. Before East Timor could do anything, the Indonesian military moved in. And Indonesia has ruled them ever since. There has been continuing ongoing strife and tumult which eventually induced the UN to hold a referendum in East Timor about independence. The result of that referendum was an overwhelming vote in favor of independence, a vote of approximately 80 percent to 20 percent. The result of that was that thousands of people, who were in favor of independence in East Timor, have subsequently been murdered.

Now, on the face of it, it’s hard to understand how that can happen. How can somebody who represents 20 percent of the population get in a war with somebody who represents 80 percent of the population and win and have virtually no casualties. Well, the answer is easy: gun control.

Legally, only the Indonesian police and military can have guns. However, the Indonesian police and military have had no difficulty, had no compunction about providing those guns to their allies, the 20 percent of the people of East Timor who were opposed to independence, recognizing that they’ve got the guns, they’ve got the power and nobody’s going to punish them, they go around killing people by the thousands. This is nothing new. It’s nothing new in world history and it’s certainly nothing new to Indonesia. In 1965, ’66 and ’67, Indonesia had a problem or perceived itself as having a problem. The problem was expressed as dangerous leftists, but that’s not the whole extent of the problem, which I’ll get to in a moment. In any event, to deal with the problem of dangerous leftists, the Indonesian military and police gave right wing groups large amounts of arms. In the ensuing massacre, approximately one million Indonesians were killed. Many of them were in fact leftists and Communists. However, a very large minority of them were Chinese. Not because they had any particular stripe, but because the Chinese are the Jews of the Orient; they’re very smart, they’re very confident, they work hard and wherever they go, they’re very successful. And wherever they go, people don’t like that. As a result, somewhere between 300,000 to 400,000 Chinese were murdered, regardless of their political stripe. So politicide turned into genocide, or was accompanied by genocide. This of course is nothing new.

In our century, over a hundred and fifty million people, unarmed people, have been killed by governments, not in wars; I mean, of course, the massacre of the Jews in Europe occurred during the war but it had nothing to do with the war. In fact, the war to some extent, actually hampered it. Hitler would have carried this out regardless. Well, one of the reasons for the Second Amendment is that genocide and politicide are not limited to this century. They were well-known as phenomena to the Founding Fathers. The Founding Fathers were classically educated. They read their Thucydides. They knew that in 416 BC, the Athenians went to the Island of Melos and killed or enslaved the entire population, because the Island of Melos had declared themselves on behalf of the Spartans in the Peloponnesian War. Thucydides was a cashiered Athenian general who wrote the first great work of history, as opposed to Herodotus, who wrote the first great work of historical fiction—a very entertaining work and far more pleasant to read than Thucydides. But Thucydides gave an explanation of what happened in Melos, an explanation which describes an eternal truth, known to the Founding Fathers. The strong do what they will; the weak endure what they must. It was the Founding Fathers’ belief that the people should never be weak and the government should never be stronger than they. The Founding Fathers would be utterly appalled at the notion that the police and the military should have guns, and if the citizenry have guns, those guns should be less powerful than those of the police. The Founding Fathers, who were authentic liberals, would be astounded that people who call themselves liberals today think the military and the police should determine who has guns. The military and the police, and of course whoever they wish to arm.

Now, Joyce spoke about the tragic massacres that have occurred recently. In fact, they represent a tiny minority of our homicide situation in the United States. The great majority of homicide victims are very much like their killers, which is to say they are people with long records of crime. Obviously, that doesn’t apply to the innocent children who have been killed in Littleton and all kinds of other shootings. But it’s useful to talk about what you would do if you were seriously concerned with that kind of massacre as a public policy program. It’s not a serious public policy problem in the United States. It represents one tenth of one hundredth of one percent of our homicide problem. It is a serious problem in Israel. In Israel, guns are far more available to the population than they are in the United States. If you want to own a gun, at least if you’re a Jew (Arabs might be a different story entirely), but if you want to own a gun in Israel, you go to the authorities and you get a license. It is easily available to anyone who has training. And all Jews, male and female, have military training, except for a few religious fanatic nuts on the right who don’t support the nation of Israel and consider it better that they be martyred than live. But in any event, any Jew who wants a license can have one. And a license is not just a license to own, it’s a license to carry a gun wherever you go. It is the policy of the state of Israel that there will be armed people everywhere in all public places.

We all, I assume, remember the tragedy in McDonald’s in San Ysidro, where a nut managed to shoot down 31 people, killing 22 of them, most of them children. About four weeks before that, four Arab terrorists armed with submachine guns attacked a crowded spot in Jerusalem. They managed to kill one person before they were shot down by armed Israeli civilians. The next day, the surviving terrorist was presented to the press, and he was quite bitter. Nobody had told his people that these Israelis had guns. And what they intended to do is a lesson that we have to learn. They intended to go from crowd spot to crowd spot, killing people and then escaping before the police could get there. The police can’t get there and protect you. Indeed, a large part of our massacre problem, to the extent we have one, involves reliance on the police. And we always hear we need people who have discipline, who have training this and that and so on. Well, let’s talk about the San Ysidro massacre. The San Ysidro massacre took 77 minutes not because the police weren’t there; the SWAT team got there within eight minutes, but they were ordered not to fire until their commanding officer arrived, and he was in a traffic jam on the Harbor Freeway! This guy went around shooting children on a floor for—77 minutes! Now, if anybody in here who isn’t a cop had been there, they’d have shot the son of a bitch. But the cops waited until they had their orders. Yes, sir?

Questions from the Floor

David Theroux

So we have time for some questions.

Audience Member

There’s an ironic little twist, that I’m not sure you heard about it, but there was a gal in that shop at the time that this was going on—she was one survivor who told her mother they went in for a bite. And because their mother was so afraid that they...

Don B. Kates Jr.

That’s not San Ysidro. That’s Luby’s Cafeteria in Texas. The woman involved is a woman named Suzanna Hupp, who is now a Texas legislator. She is incidentally a leading advocate of the NRA.

Again, I’m not putting down the police. There are lots of reasons why I, as a liberal, do put down the police, but I don’t put them down for these things. I simply point out the limitations. Why did all those people die at the 101 California Street massacre? They died because the killer was coming down the stairs and the police were coming up and he shot himself to death. The police had no idea what had gone on. All they knew was that there was shooting. Their protocol was that they go through the building room-by-room, clearing it. And they didn’t go through until they had cleared the staircase. As a result, all those people died, or almost everyone who died, died because they bled out. If someone had rushed into that building and given them first aid, they would have all lived. But the police had discipline and they had a protocol. And the result of that was that all these people died. That’s not to say that discipline and protocol and planning are bad things, it’s only to say that there are downsides as well as upsides. All right. I think I’ve probably taken more time than I should have. But let me just end with a final point, which is that the notion that crime can be defeated by depriving its victims of all the means of self-defense is a form of idiocy, which George Orwell described well when he made the remark, “Only an intellectual could believe something as stupid as that.”


This a question for you, Joyce. What does “well-regulated militia” mean?

Joyce Lee Malcolm

They wanted to have a well-disciplined and effective military force in the militia. They did not want just people who got together and were not going to be able to behave in an effective manner. So it just meant that they would have to be drilled and disciplined to be effective. They were concerned that if the militia was not effective, then they would always need to use the army. So they wanted it to at least be an effective fighting force. And there were times, in fact, during the American Revolution when it hadn’t been too effective.


Do you see that as a limitation on the individual right to bear arms?

Joyce Lee Malcolm

No, I don’t because I think that the only reason that the militia is mentioned is that it’s one reason for the people to be armed and also because I think they wanted to say that the militia was important to a republic, to a free state. An army had been written into the Constitution and they were really very nervous about that army being around in peace time and perhaps intruding on people’s liberties, so they wanted to have an effective militia as a counterweight. Yes?


I have a question. Do you think people should be able to have their own rocket launchers? Should they be able to have nuclear weapons?

Joyce Lee Malcolm

I always get that question too. I think that what you ought to have are arms that will be really effective for your own defense, and not arms that are going to be a menace to all your neighbors—like a machine gun. Yes?


How do you understand the dichotomy between the position that the Israelis take vis-a-vis firearms and the position that Jewish organizations—and especially our two Jewish Senators in the state of California—take vis-a-vis gun control? The American Jewish Congress has just announced an initiative for more gun control legislation in the recent spate of shootings and attacks in the Jewish community.

Don B. Kates Jr.

I don’t purport to be an expert either on Israel or on American Jewry, but I do know that if you talk to Israelis about American Jews, what you get is contempt.


What about the fact that when you look at Germany in the early ‘30s where there was legislation specifically disarming them and you could almost argue that some of our current legislation is almost patented on it. And I would think that some people would have learned that he who is disarmed becomes lunch.

Don B. Kates Jr.

Well, unfortunately, knowledge of history doesn’t appear to be very important in formulating American consciousness. However, I need to set out the historical record more completely. It wasn’t the Nazis who passed these laws. These laws had been passed 15 years before by some very nice people like Sarah Brady. And they were concerned with the horrible revolutionary and civil war type activity that was occurring after World War I in Germany, and their notion was to disarm the entire population, with significant exceptions. When Adolf Hitler took power, he already had all the legislation he needed. He didn’t pass any new legislation, other than to add two provisions: Jews and other enemies of the people would not have arms and the laws against arms possession did not apply to members of the Hitler Youth, members of the SA, members of the Stormtroopers, members of the Gestapo, etc. So it wasn’t the Nazis who put these laws in anymore than the goodhearted people who support these laws today are Nazis. Rather, it was the dupes who put the laws in and then found themselves being screwed by them. Let me actually make a further comment, which will perhaps be controversial. Even in this crowd all my life I have heard people dumping on the Germans because of the Holocaust. Now, it may be the case that the Germans knew what was going on and did nothing about it. Well, what were they supposed to do about it? They didn’t have any arms. Were they supposed to attack the concentration camps with their bare hands? They just—they weren’t in a position to put up any resistance, whether or not they would have done so if they had known, and maybe they did.

Joyce Lee Malcolm

Can I just add something? World War I was really a watershed. And it was after World War I that France also passed restrictive gun legislation. And I think that it’s hard for us maybe to appreciate the tremendous revulsion that the death toll in that war caused across Europe. But I think that—in Britain and in France as well as Germany, there was just this desire to sort of turn away from violence. And one way that they tried to do that was through disarming people.


Two short comments and a question. Dr. Kates—or Mr. Kates—I could tell right away you had a legal background because you began your first paragraph with the word “pursuant”—

Don B. Kates Jr.

On your last description of the kindness of the British government in protecting criminals by dealing with their psychology of not needing to bear arms because no one else does, it seems to me what they’re doing is protecting the criminals from fear. Now, to my question. I’m married to a public school teacher, so that I’m blessed with the burden of monthly notices from the National Teachers Association. Every year for the last ten years, they’ve come out very strongly in favor of every gun control legislation proposed. Now, these are the people who are teaching our kids about constitutional law. They don’t teach our kiddos much about math, so they wouldn’t get Mr. Kates’ arguments regarding the insignificance of the single incidence. Apparently, they don’t teach much about history as the last question revealed. And the very structure itself encourages sort of a passive dependence on a nanny state government. Now, after being processed through 12 or 13 years of the system, you both worked with the products—not by-products—I will call them products of said system. As college instructors, do you find that the preparation that they’ve gotten from public school makes them resentful or perhaps even unable to understand the arguments and theories that you propose in your classes?

Joyce Lee Malcolm

They can understand eventually but I think that they come primed with this notion. I’m from Massachusetts, and of course Massachusetts is a very anti-gun state. I think probably other parts in the country don’t have quite that same skewed view of things, but they do come very much against the notion. Well, the coasts tend to be more similar to each other than the center of the country. Don, did you want to say something to that?

Don B. Kates

OK. Professor Malcolm is a teacher. I’m not. So I’m really not in a position to answer that.


It’s pleasant to sit here and listen to all of us talk about this because the views presented are familiar and comfortable. But I think if we’re going to address this issue, there’s a couple of things that we’re going to have to address and they’re very difficult—they aren’t easy questions. One is Elizabeth Dole’s statement: “You don’t need an AK-47 to protect your family.” I don’t agree with that. I think there are answers to that. But I don’t think that those of us who are in favor of the Second Amendment have adequately answered her statement. The second one is—it was Face the Nation and Meet the Press last Sunday and there was a discussion of this episode in Texas. And at the end, the moderator made comments about you don’t give kids and people—cars without driver’s licenses, it’s ridiculous not to license guns, and it had a bit of the “enough is enough” statement from TV. I don’t think we’ve answered that either. I think, to some extent, we tend to tell the stories and make the comments that we all like and believe, but I don’t think we’re convincing to those people out there who are a vast group of people who are in the middle of this, who see these as tragedies and who have the feeling that it is unreasonable for us not to go along with more registration and etc., etc. that creeps along until you have the laws that then allow a Slick Willy or a Nixon or an FDR to do what Hitler did in Germany, using laws that were all ready in place. Can you comment on some answers to these difficult things that people are saying that really, at least in my view, need some answers?

Joyce Lee Malcolm

Yeah, I think you’re quite right. The issue of the AK-47 was the same as the question earlier about a rocket launcher. And, to me, the answer is that you need something that will protect you without being of such capacity that it’s likely to do harm to all your neighbors. As far as the licensing goes and the training, I think it makes sense that people have to have some training. What concerns me is that you get some kind of legislation like the English Firearms Act, which sounds perfectly reasonable but leaves the interpretation of who’s a fit person and what’s a reasonable purpose for having a gun to officials who will change the real intent and will narrow and narrow it down. So I think once that kind of act can be really misused and the English example seems to me to be a perfect example of how what seems to be very sensible legislation can be misused by governments. So licensing or at least training people is in fact the law in some states and makes sense, but I think that there’s the possibility that it could be made so complex that it kind of perverts the original intent of it.

Don B. Kates

I want to comment on that a bit. The real problem of gun control in the United States is the gun control advocacy. They keep saying why is it you object to the same kind of control on guns that we have on cars? And the answer is easy. There aren’t a bunch of fanatics out there, screaming “nobody should have a car except the government.” By the same token, if you talk to abortion rights advocates about reasonable controls on abortion, you’ll find the same intransigence you get from NRA advocates, because in each case they recognize that what’s reasonable in the abstract stops being reasonable when you have a set of people who are endlessly lobbying public officials to make it impossible for people to have freedom of choice, whether as to guns or abortions. If I were Sarah Brady and I owned HCI, in five years, I could produce a set of reasonable gun controls which the NRA would agree to and we’d all have, and there’d be no problem at all. But the reason we can’t do that is because the people who are against guns, are against guns. They’re not in favor of reasonable controls, and if you asked them, What if? For instance, take a look at their position on the Second Amendment. If you wanted reasonable gun control in the United States, the very first thing you would do is say “I’m Sarah Brady and I say the Second Amendment means that every responsible, law-abiding person may have a gun.” Now let’s talk about reasonable gun controls within that context. Why would someone go and deny the self-evident (I shouldn’t say self-evident, but the truth which virtually every scholar who’s addressed the subject concedes), that the Second Amendment is an individual right. The only reason someone would deny that is because they want to take all the guns away. They don’t believe in reasonable gun control.


This is for Mr. Kates. I guess I could be called a fanatic, but the way I see it is I’ve been a law-abiding citizen all my life and I’m getting gray and I’m getting old. Now, I find out legislation passed in this state that as of January 1, if I don’t trot down to the authorities, tell them who I am, where I live and certain firearms I possess, I’m now a criminal just like that. I’ve kind of drawn a line in the sand, and a lot of friends I know have done the same thing. I’m not going to do it. So you as a lawyer—is there any other alternative to me other than to completely violate the law and simply go underground?

Don B. Kates Jr.

Regrettably, no, there isn’t. And I’m going to be litigating against this. I’ve been litigating against this crap for years. Unfortunately, I deal with judges. And there are two kinds of judges in the state of California. There are those judges who are so hostile that they will not follow the law. And there are those judges who are not that hostile. There are no judges who are friendly, including judges that carry guns themselves, as for instance does the proponent of the author of this law. He carries an assault weapon. He owns assault weapons. But that doesn’t stop him from banning guns just because it gets him political kudos. And I see little hope of doing anything. As a lawyer, I mean, I’ve been a civil rights lawyer for years. I have never lost a damn case. I can hardly win a case in behalf of the same civil rights for gun owners. And I haven’t gotten to be a less able lawyer—I’ve just got a different set of clients. I often say to people, to describe our situation, we are blacks in Alabama and the year is 1890. That is all the justice gun owners will get. We are a discriminated against class, excluded from justice and subjected to injustice, and anybody who wants to know what our situation is just needs to pick up a history book about Jim Crow in the South.


I happen to be working with the American Jewish Congress in an effort to find out more about what violence means, what violence prevention means, what people are trying to do make sense and we should be supporting and trying to help funders work with them to understand this. And I have that vicious petition in my hand. And as I understand it, the point from the AJC’s view is to treat guns like that other lethal weapon, cars. Don, I didn’t completely follow your negation of that because that’s true, there are some car drivers who have ill intent, but it just seems to me we do all have to go down and give our names and blah, blah, blah and show that we can drive the silly thing, that maybe we shouldn’t just give our names and show our gun and show we can use it?

Don B. Kates Jr.

Well, that’s fine if the people on the other side were willing to accept that. They’re not. Their intention is to ban all guns, and their belief is that no one is allowed to have a gun. Incidentally, it’s interesting, too. I didn’t make this comment earlier about the shooting in the Jewish Community Center. The jerk who did that got there by accident. He had three other Jewish targets. Every one of them had security. He didn’t like the idea of getting himself killed, so he went and found a place that didn’t have security. Security means armed people.

Joyce Lee Malcolm

I totally agree, I couldn’t agree more and I agree about the Israel incident. I don’t think that everyone who wants to see guns controlled, registered, whatever the word will be, would not agree. And I hope that we come to a meeting that those of us who do think well, as this particular group of people, are necessarily going to just hue one line without consideration, without talking to the other side, maybe before the lawsuits come.

Don B. Kates Jr.

Well, let me give an example here. I’ve already given the example of the Second Amendment. There’s no rational reason for the position of the anti-gun groups on the Second Amendment, other than they want to ban guns. Let me give you another example. All the time, you have extreme vituperation thrown at gun owners by various spokespersons for anti-gun organizations and the anti-gun point of view. Now, if I were Sarah Brady, every time somebody like that spoke out, I’d say “You’re full of crap. I don’t endorse that. My group doesn’t endorse that. We’re totally opposed to that.” Neither Sarah Brady, nor any of the other people running these groups has ever said such a thing. The reason they don’t say it is either a) they themselves couldn’t say that or b) they know what would happen if they did, which is that their supporters would leave them en masse. Compare what would happen if some jerk got up and said in an NRA meeting, “we want guns so we can kill niggers and Jews.” He’d be picked up and thrown out on his ass, and the NRA would denounce him immediately. That’s because his position is unacceptable to the NRA. The reason that the vituperation from the anti-gun people is not denounced by anti-gun organizations is because the vituperation is not inconsistent with the views of the organizations involved.

David Theroux

We have time for one more question. One thing I might add to the discussion, which is a related question about the question of registration of guns and restrictions as far as people having to have training and so on and so forth. The idea of private property is that individuals own physical entities and they determine how it’s regulated. Now, you essentially have private law of how you use your property—the clothes that you have, your body, your home, your business, your bank account and so forth. That’s the idea of private ownership. The roads are owned by the government, by and large. The history of roads, incidentally, which may be a project we’ll be doing is one in which a lot of the major road projects that came into being in the United States and in England, for that matter, were built privately. When they were built privately, the private road owner, just like the private hotel owner, set the rules for the road. If there was a speed limit or whatever the restrictions might be, that’s what existed and different road owners would compete. The point here is that the government owns the roads and they have a DMV in the state of California that we have to comply with. But there may be a question of whether that should be the way things should be. There have been proposals, for example, that DMV should be abolished and that AAA should do car registration and other things like that. So I think that the issue is, getting back to this question about Elizabeth Dole, is there’s not really a parallel between the idea of car registration and gun registration or registration of the books you have or many other kinds of things. It’s a little more complicated. I think that the concern that people have is they want to minimize the risk to them of people using guns in violent ways. And, of course, some of you may be familiar with the book by John Lott, and others that have looked at some of these questions. We can’t, I’m afraid, address every question tonight but we certainly had a good start. But we have time for one more question.


I’ve got two points I’d like to make one in answer to the lady to my right. The history of gun registration in this country is that it is accompanied by a promise that those lists that are compiled will never be used to confiscate those weapons, and that it’s promptly followed by confiscation at some point. So the government then has a list of everybody who’s exercising a right that they don’t like. The second point that I would make is that this has been a wonderful program, but it has been preaching to the choir. And what I am concerned about is that there is no effective outreach program promoting the case for the Second Amendment. And the gun organizations—again, they speak to the choir. They do not reach out. And it is a very difficult road because the media is products of the public school system or the political system we live in. And it is biased against the Second Amendment.

Don B. Kates Jr.

I’ll repeat a comment I made in my first book 20 years ago, which is that the problems with the pro-gun argument is that it is the more sophisticated argument made by the less sophisticated people.

Joyce Lee Malcolm

I object to that.

Don B. Kates Jr.

I said it 20 years ago. You were barely out of high school 20 years ago.


I just say I think you’re quite right, though, about needing to reach out. And the media is the most difficult area to get into. I think the media tends to be extremely one-sided and kind of gratuitously one-sided. So it’s extremely difficult, I mean, I think that they have begun to at least cover both sides, but there’s still—there’s this tremendous bias.

David J. Theroux

Also, it sort of leads into my final point here is that the reason why Independent Institute was started was to do the kind of scholarship that can position ideas, that will hold up to scrutiny, that address these kinds of issues, that will answer the kind of questions that have been raised tonight and many other questions from any kind of party. I think one of the problems that this particular issue—which is not unlike many issues has is that visibility of who is in favor of the Second Amendment side is not the same as the people who are professional scholars, professional writers, professional pundits, whatever. And unless we can position these kinds of ideas in those arenas where they can out-argue and essentially win the battle of ideas, you’re going to always be fighting a defensive battle. That’s why the Independent Institute was started and there’s obviously quite a bit or work to do. Fortunately, the work of scholars like Don and Joyce and a growing number of others are making significant—and I mean really significant headway. Joyce has mentioned the kind of comments from Lawrence Tribe—of course, that’s just a trivial issue—but the point is that we are in the process of moving the debate in the right direction, but it obviously has a long way to go. Again, if anybody has not gotten her book, this is really a dynamite book, and we are all very grateful that you could join with us. We’re especially grateful to our two speakers for their wonderful talks and for their work. We hope that you can join with us again next time. Thank you for coming with us to this wonderful program. Good night.


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