Boston — If belief in gun control is the litmus test of liberalism, what's a nice liberal like Don Kates doing with the Second Amendment Foundation? While in law school at Yale during the mid-'63s, he was involved with the civil rights movement in the South. He is a member of the american Civil Liberties Union. He even belongs to the Fund for Animals.
Yet he also serves as legal adviser to the Second Amendment Foundation, a research organization not formally affiliated with, but on the same ideological wavelength as, the National Rifle Association.
Mr. Kates is one of a number of otherwise certifiably liberal lawyers who doubt whether restricting handguns is possible or effective. We may well be hearing more from these skeptics the next time the nation's running debate on gun control heats up.
For the moment, stiffer gun-control legislation is stalled in Congress, where bills introduced to amend the Gun Control Act of 1968 one way or the other are dying quietly in committee. Some cities, meanwhile, are attempting to deal with the issue by passing their own ordinances. (All in all, there are 20,000 federal, state, and local gun laws throughout the country, from frontier laisses-faire laws to virtual prohibition of handguns.)
"I'm a classical liberal in the sense that I trust the people and distrust the military and the police," says Mr. Kates. "I'm against gun control because I don't believe the police are competent to decide who gets guns and who doesn't.
"Liberal skepticism over gun control is coming out of the closet," says Sen. Frank Church (D) of IDaho. "I have always opposed all forms of federal gun control in my more than 20 years in the United States Senate," he says, in the foreword to "Restricting Handguns: The Liberal Skeptics Speak Out," a book Don Kates edited.
Of course, it could be claimed that it's one more case of a politician -- in this instance from a big hunting state -- compromising on one issue to enable him to further another, more hearfelt, issue. But it apparently goes deeper than that.
As Mark Benenson wrote on the Opinion and Commentary page of this newspaper earlier this year, "Unlike Eastern liberals, whose political philosophy comes largely from the ethos of the American labor movement and big-city intellectuals's ideas, Mr. Church's roots are in the West. His politics originate in the prairie populism of william Jennings Bryan and Robert La Follette, and in Western suspicion of Eastern money. Gun ownership has never been alien to that tradition."
Mr. Benson, a New York lawyer, is a liberal skeptic himself. "A lot of liberals have a blind spot," he says, explaining why strong gun control has generally been seen as a "liberal" position.
"People's attitudes on gun control are heavily influenced by their geography." What he calls "metropolitans" -- Eastern city- or suburb-dwellers -- tend to have no need for firearms. "To these people, guns have something exotic about them; they're needed by the criminal, the policeman, the soldier, and that's about it."
Benenson, a city-dweller and a graduate of the City College of New York and Columbia Law School, has pretty good credentials as a metropolitan himself. (And also as a liberal: He was formerly American chairman for Amnesty International, and remains its general counsel.) But he spent his childhood summers in upstate New York, "out in the countryside," and so grew up without "this predisposition to be wary of guns."
In a society that has seen political assassinations, gang warfare, deranged snipers opening fire at passers-by, and other horrors, a certain wariness of guns would seem not inappropriate.
But Benenson says, "I don't see that the streets are made safer by making it difficult for people to arm themselves if they've made the ethical decision to do so."
Many handgun control proponents argue that licensing handgun owners does not deny law-abiding citizens weapons for self-defense. But the liberal skeptics maintain that in practice, especially in big cities where licenses are issued at police discretion, getting one is often a matter of knowing the right people -- or of having cash to slip under the table.Although he acknowledges that people who need guns in their work get licenses easily, Benenson says flatly, "Personal defense is generally not a reason to get a license to go armed in most cities."
He says that during the last 10 years his school of thought on the subject has become a "substantial minority." (The pro-gun types argue that many polls purporting to demonstrate support for "stricter gun control" are skewed because they don't make clear to those polled just how strict current laws are.)
Another liberal skeptic is Kenneth Chotiner, of Santa Monica, Calif. A lawyer, he is vice-president of the American Civil Liberties Union of Souther California -- and is on the board of the National Rifle Association.
He is worried about the violations of civil liberties, especially privacy, that come of enforcing gun control laws. He says his fellow civil-libertarians are "about even" pro and con on the gun-control controversy now.
Writing with David T. Hardy in the Kates book, he says, "Available data suggest that illegal searches are a common, perhaps even the primary, means of enforcing present firearms laws," particularly in places with discretionary licensing like that which many gun-control proponents want the federal government to adopt.
He pointed out that a Detroit study had found that 85 percent of cases regarding carrying concealed weapons were thrown out of court because of "illegality of search.This far exceeded even the 57 percent of narcotics dismissals, where illegal searches are frequent." Often, the only feasible defense for such searches is the fact that narcotics or concealed weapons were found.
Licensing systems involving use of social security numbers are just another instance of Big Brotherism, Mr. Chotiner maintains. Those numbers could link bits of disparate information in separate data banks and make it possible to put together quite a dossier on someone, he suggests.
The liberal skeptics are taking another look at the Second Amendment to the US Constitution, which guarantees "the right to keep and bear arms." This provision has long been considered (to use Benenson's words) "the possession of a lot of right-wing kooks." Those who advocate strict licensing or even outright prohibition of handgunds interpret the amendment to refer to the right of states to maintain a militia. "But those guys are wrong," Benenson claims.
In the last decade there has been much research into the Second Amendment's roots in English common law, and also into the debates over the Bill of Rights before it was adopted. Evidence is coming out, he maintains, that the Founding Fathers definitely had an armed citizenry in mind.
A recent decision of the Internal Revenue Service was the watershed on this question, he says. The IRS ruled that the Firearms Civil Rights Legal Defense Fund, set up by the National Rifle Association to help gun owners in court, could be tax exempt on the ground that it would be engaged in proving constitutional issues, since "the constitution may in some cases guarantee individual right to bear arms."
Don Kates takes a slightly different tack: "As a constitutional lawyer, I know of no part of the Constitution that has been construed away -- not even the Seventh Amendment [guaranteeing jury trials, if desired, for civil cases involving more than $20]."
State militias no longer use muskets, and most citizens don't expect to have to fight marauding soldiers off their front lawns, but that doesn't mean to Mr. Kates that we can throw out the Second Amendment or any other part of the Constitution because it's "no longer relevant."
But legal points aside, he adds, "The important thing about the Second Amendment is that so many people believe it gives them a right to have a gun."
Of course armed citizens today are more concerned about protecting themselves against criminals than in fighting off marauding redcoats.
As Kates puts it, "No policeman who has been around for a while will tell you that the police can provide adequate protection for the people they do want to protect. And the police won't protect anyone they don't want to."
After the mid-19th century police protection in metropolitan areas was sufficient to keep the streets basically safe; there was what Benenson calls "an ethical imperative of personal disarmament." In other words, it was thought a good idea not to carry a loaded pistol everywhere you went.
However, in many areas the presumption of police-provided security no longer holds. Benenson acknowledges that carrying a firearm is a graver responsibility. "But if a responsible individual is willing to make the ethical decision to arm himself, that right ought not to be denied."
"The problem is that gun laws try to ban guns without convincing people to give up their guns," Kate says.
"There's been a total failure of convincing people they don't need guns."
Observers of the gun-control debate see two basic frames of reference in American society, reflected in two viewpoints on gun control: Eastern and Western, or metropolitan and rural.
B. Bruce-Briggs described them this way in his essay "The Great American Gun War," which appeared in the fall 1976 issue of The Public Interest:
"The intensity of passion on this issue suggests to me that we are experiencing a sort of low-grade war going on between two alternative views of what America is and ought to be. On the one side are those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of responsibility and authority clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation. To such people, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization.
"On the other side is a group of people who do not tend to be especially articulate or literate and whose world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family withno interference from the state. They are 'conservative' in the sense that they cling to America's unique pre-modern tradition -- a non-feudal society with a sort of medieval liberty writ large for every man. to these people, 'sociological' is an epithet. Life is tough and competitive. Manhood means responsibility and caring for your own."
And studying the gun-control issue, one finds it hard to escape the conclusion that despite all the editorials, hard-to- digest statistics, and horror stories recounted by both sides, people will make up their minds on gun control according to their frames of reference.
The Eastern point of view is a rebuke to the Westerner, who rejects the moral presumption that guns and, by extension, gun owners are bad, says Kates. He makes an analogy: "Prohibition didn't work because people resented the moral presumption behind the law."
And the Westerner - or the ghetto dweller -- who says, "I'll keep my guns to protect my family, because the police can't do the job," is a rebuke to the Eastern social liberal who believes in The System, who believes crime and other social evils can be controlled if not eliminated by police, courts, and "enlightened" prisons. The gunslinger tells the liberal that society isn't working.