Second Amendment

Don Kates, R.I.P.

Legal scholar laid the groundwork for the modern revolution in sensible Second Amendment jurisprudence.

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Second Amendment scholar Don Kates died this week. The Washington Post article by Eugene Volokh announcing his death rightly calls him in its headline the "father of the modern Second Amendment revival."

Independent Institute

When I interviewed Alan Gura, the lawyer who won before the Supreme Court both cases that established the current state of Second Amendment jurisprudence (2008's Heller and 2010's McDonald), for my book Gun Control on Trial, the first writing Gura mentioned as forming the core of his understanding of the Second Amendment as he launched his legal adventure to vindicate it was Kates' seminal 1983 Michigan Law Review article, "Handgun Prohibition and the Original Meaning of the Second Amendment."

As explained in an excellent 2014 essay on Kates' contributions to modern Second Amendment thought by California-based gun law scholar C.D. Michel, "Kates was a nearly lone voice in the constitutional law wilderness….Kates' work, both as a constitutional scholar and criminologist….largely ignited the counter revolution against the American gun control movement" by arguing and demonstrating that the Amendment was certainly intended to protect an individual right to possess weapons.

Kates' article became an ur-source to later articles by more academically well-connected authors, such as Sanford Levinson's 1989 Yale Law Review article "The Embarrassing Second Amendment," that spread the new understanding of that Amendment as guaranteeing an individual right to the more liberal side of legal academia.

As Michel notes, "All the scholarship that Kates indirectly ignited eventually fueled legal briefs filed before the Supreme Court in District of Columbia v. Heller."

Before studying the Second Amendment, Kates did pro bono legal work for the poor in American South, often defending them from corrupt or abusive police. His scholarly work continued a tradition of making sure the otherwise potentially defenseless have the opportunity to protect their rights.

A Kates obituary from Ammoland.