A Year After Sandy Hook: Donohue & Kilmer talk about guns in America

John J. Donohue is an economist, lawyer, and member of the Stanford Law School faculty widely known for his criticism of John Lott’s book More Guns, Less Crime. Donald E. J. Kilmer is an attorney and an adjunct professor teaching Constitutional Law and Appellate Advocacy at Lincoln Law School of San Jose. Kilmer’s firm handles criminal gun cases and public interest constitutional litigation against government entities.

On Thursday 15 January, Stanford Continuing Studies and the Department of Theater and Performance Studies co-sponsored an event entitled “Guns in America: A Year After Sandy Hook”. The event featured a debate between John J. Donohue and Donald E. J. Kilmer.

Early on, moderator Charles Junkerman asked for the speakers’ perspectives on primary justifications of the Second Amendment, including as firearms used in self-defense and used as a check on tyranny.

Donohue was the first to respond. “I support the right to self-defense,” he said, “but that doesn’t mean that you have a right to high-capacity magazines.” He argued that the Second Amendment must be interpreted through a historical lens, noting that the firepower available when the Bill of Rights was written is not comparable to today’s firepower. “Restriction has to be at the core of this right,” he said.

Kilmer agreed that the right to self-defense is central the Second Amendment. He added that this protection of the individual right to keep and bear arms for self-defense was ratified in the 2008 District of Columbia v. Heller Supreme Court decision.

The idea on which they differed was on the purpose of the Second Amendment as a means to resist tyranny. “It’s fanciful to think that guns in the hands of citizens acts as a realistic check,” said Donohue. “They’re not really trained to do so. And it’s fanciful to think that the military would ever turn on U.S. citizens.”

“That’s not really the point—it acts as a deterrent,” responded Kilmer. He noted that the United States military has had a “tough time” historically against a number of untrained citizen groups, including the Vietcong, Aghan rebels, and insurgents in Iraq. “When people are protecting their own home and way of life, there’s at the very least a speed bump effect.”

Kilmer continued, “Taking away citizens’ arms has always been the first step of the greatest human rights violations.” He noted that the Nazis in pre-WWII Germany barred firearms ownership by ‘enemies of the state’ as soon as they came to power, rendering political opponents and Jews defenseless. He said, “The mistake of giving up your arms is a mistake you only get to make once.”
Throughout the debate, Donohue strongly advocated tighter gun control measures, while Kilmer was in favor of protecting the rights of law-abiding citizens.

When Junkerman asked a question about limiting the size of magazines, Donahue replied, “Making the criminal reload more often is a beneficial thing. Without question, lives are saved by the fact that they have to reload.” He noted that 11 children were able to run out of the school room when Adam Lanza had to reload at Sandy Hook Elementary, and an elderly man was able to tackle Jared Laufner only when the shooter ran out of rounds in his magazine at the attempted assassination of Gabrielle Giffords in Tuscon three years ago.

“Size of cartridge is a bit of a red herring,” Kilmer replied. “People do not become untrustworthy just because they have 11 rounds in their magazine rather than 10.” He challenged Donahue, arguing that there is no just reason to limit law-abiding citizens willing to follow common safety rules.

Kilmer also noted, “The problem with an arbitrary magazine size is that if you only have 10 rounds but there are 11 bad guys, then you’re the one who has to reload.”

Donahue also criticized the gun lobby, particularly the National Rifle Association (NRA) for encouraging “a get out your gun and be the hero of the day attitude”. When Junkerman asked the speakers’ opinion on the idea that a good guy with a gun can stop a bad guy with a gun, Donohue said, “Having other guns around can only make things worse, because the shoot first attitude does not always work well. There are less lethal methods of self-defense, and it’s always a bad idea to ramp up the firepower.”

Kilmer disagreed. “Good people with guns often do stop mass shootings,” he said, citing an incident several weeks ago in which Karl Pierson, loaded up for a long shooting spree, committed suicide when he was confronted by an armed sheriff at Arapaho High School in Colorado.

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  • BrianC

    “it’s fanciful to think that the military would ever turn on U.S. citizens.”


  • Dan Short

    As a law professor, and immune from the simple measurement of little things—like reality—then making statements of relativism, immeasurable or even understandable to any cognitive of this nation.
    As the concept of laws has veered from any mores, morals, or anything that we can even identify as civilized, perhaps it is understandable. Educated in being absolutely ignorant, would result in absolute ignorance.
    The 2nd amendment is not myopic in representation. This little fallacy has been advanced for far too long, that we’ve as a nation forgotten that the ‘Bill of Right’ was a package, protections of individual rights, not some subsets, divisible, and separate to be attachted by the cultural hegemony, the cultural communism of Antonio Gramsci design.
    The 2nd amendment is the ultimate neutralizer of ‘totalitarian’ dictation of our government being corrupted and circumvented by criminals—as it is currently. For today, we have an administration that breaks the law, maliciously, with intent and premeditation. In the world of criminal behavior, that is a capital punishment, and our society is oblivious.

  • gmmay

    Does Donohue’s desire for such strict historical interpretation of the constitution apply to only the 2nd Amendment? It would be interesting to hear such historical arguments in the context of technological advances like telecommunications technologies and the Fourth Amendment for example.

    Does his knowledge of that history include the fact that the citizens had access to the same firepower as the government and often loaned the government some of its heavier firepower? This should illustrate the pitfalls of invoking this line of historical argumentation.

  • Doug in Jax

    “I support the right to self-defense,” …“But that doesn’t mean that you have a right to high-capacity magazines.”

    “I support the right to religion,” …“But that doesn’t mean that you have a right to practice it in daily life.”

    “I support the right to free speech,” …“But that doesn’t mean that you have a right to offend me.”

    “I support the right to work,” …“But that doesn’t mean that you have a right to not join a union.”

    “I support the right to require warrants for searches,” …“But that doesn’t mean that the state must get the warrant before the search.”

    “I support the right of political dissent,” …“But that doesn’t mean that you have a right to hold positions that I define as misguided and out of my ‘mainstream socialist’ thought.”

    “I support the right to self-defense,” …“But that doesn’t mean that you have a right to high-capacity magazines.”

    “I support the right to religion,” …“But that doesn’t mean that you have a right to pray in public.”

    “I support the right to free speech,” …“But that doesn’t mean that you have a right to publicly disagree with Obama.”

    “I support the right to work,” …“But that doesn’t mean that you have a right to not join a union.”

    “I support the right to require warrants for searches,” …“But that doesn’t mean that the state must get the warrant before the search.”

  • Krysta

    “the firepower available when the Bill of Rights was written is not comparable to today’s firepower.”
    “The founding fathers had no idea how powerful and destructive today’s weapons would become”
    Puckle gun. Check the wiki. It’s a 32mm (1.25″ bore) semiautomatic revolving cannon.

    “it’s fanciful to think that the military would ever turn on U.S. citizens.”
    New Orleans after Katrina. ‘Nuff said.

    “an elderly man was able to tackle Jared Laufner only when the shooter ran out of rounds”
    Actually, the fact that he was using a high-capacity magazine is what saved people there – it jammed.
    So requiring low-capacity magazines is actually endangering both the good people (who might not have enough rounds to stop an attack) and the victims of bad people (because they’re less likely to jam). And it doesn’t take but a second or so to swap out a magazine. And criminals are going to ignore a low-capacity law just as they ignore laws about robbing, murder, etc.
    Use normal-capacity magazines, the ones which are made by the gun manufacturers, shipped with the new firearms.

    “Having other guns around can only make things worse”
    So why call police (with guns) when something bad happens and you want it to stop happening?
    Time and again experience has shown that criminals don’t like victims who can fight back. They don’t attack openly armed citizens (I know of 3 cases), and when they discover that the person they thought was unarmed was actually carrying concealed they generally run.

    “the shoot first attitude does not always work well”
    Good citizens don’t have this misconception, only anti-rights people do.
    I cannot shoot someone unless he is posing an imminent threat of death or great bodily harm.
    However, I do not have to wait for him to shoot at me, or stab me, or break my head open by beating it on the concrete sidewalk, before that imminent threat is real and lethal force is justifiable.

    “There are less lethal methods of self-defense, and it’s always a bad idea to ramp up the firepower.”
    Sure there are less lethal methods.
    They’re also less effective.
    If someone is trying to harm or kill me I want the most effective means possible to stop that attack as quick as possible.
    I carry openly so that the criminal can make an informed decision about whether or not he really wants to risk his life to get whatever he thinks I have. That way neither of us gets hurt.

  • Krysta

    Forgot to mention, the Puckle gun was invented in 1718.
    So it was well established technology by 1776.

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  • http://www.publiusforum.com Warner Todd Huston

    Clearly John J. Donohue’s anti-Constitutional feelings are ahistoric. His comments are wholly wholly disconnected from current events, facts, history, the founders’ comments, and Constitutional law. In fact, all he did was express his feelings and based nothing on anything other than what he’d rather see done. It is a shame this person is teaching students.

  • Bob

    “It’s fanciful to think that guns in the hands of citizens acts as a realistic check” – And yet several global-scale superpowers’ militaries have been stymied by guerillas in Afghanistan and elsewhere, over the past several thousand years of civilization. It’s the consistent lesson of history. Please see “Invisible Armies” by military historian Max Boot.

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  • Miles

    It is a good thing that these opinions air in venues where (hopefully) informed, intelligent people can openly hear what academia spouts.

    Professor Donahue is one of two things. A stupid dupe, or a bought and paid for shill.

    Either state is a sterling endorsement of who we have “teaching” today /sarc

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  • kldimond

    It’s marvelous that we have an economist, lawyer and, of all things, law PROFESSOR who simply can’t grasp the point or the reality. …or is perpetrating–and perpetuating–multiple frauds.

    1. As others have noted, the predecessor of the Gatling Gun, the Puckle Gun, was far from unknown to our Framers; all it took was that tech would continue to progress and it would become highly workable, as it did by only 1861. This would have been easy for the Framers to see. The Framers weren’t dingbats who thought tech would not advance. They foresaw huge advance, and some were in the midst of it. They also saw that the people should be as well armed as any standing army could be, which means tech-for-tech advancement for military and civilian arms. I almost hate to think what that means for our military tech secrets.

    2. The Framers would have thought of modern policing as a standing army, and our modern government as a police state. This is what they sought to avoid with the 2nd (and other) Amendment(s). This is the reality; to deny it is to make oneself ineligible to teach anyone. How to fix it is the only meaningful question.

    3. As others have pointed up, we have SEEN the military used against citizens, on more than one occasion. Nothing fanciful about it at all! I’ll note another: The Bonus March. Look that one up! YUCK!! How about them Japanese internees? Come ON! I’m completely aghast at the Donohue’s … is it ignorance or pretension?

    …and with such glaring misinformation, how could he be qualified to address in any useful, non-time-wasting way, the matter of full capacity magazines?

    What is indeed fanciful is that one with such responsibilities as economist, lawyer and law professor, could be so massively uninformed, or so massively intent on establishing an argumentative position based on falsehoods, and that Stanford would condemn its halls with an equivalent to Harvard’s David Hemenway, the king of results-oriented anti-gun “research.”

    Ah, but we live on Planet Impossible!

  • Will

    When the second amendment come to be , it took a decade to go from the Declaration of Independence to a Constitution. Individuals in communities had to be able to care for themselves against anybody that goes bad whether it be foreign or local government forcing non constitutional rules on a citizen in America. Now with that out there the new country taking steps away from tyrannical Kingdom to the East and Tribal laws to the West. (those issues have yet to be settled.) That in my mind meant take care of yourself. It comes down to what you can afford is what you get. Well weapons have changed so much that a government gone bad or even a bad cop can bring to bear on a good citizen is extraordinary force for compliance . Tools of death the country has at it’s disposal puts that original amendment’s propose obsolete unless something like Katrnia times ten happens. Government missing in action (servicing the oil rigs) and cops gone bad! Well maybe Warren Buffet should be able to own his own nuke? Maybe all those extraordinary weapons will never end up at the local police armory like IED war wagons and full automatic assault rifles. Won’t be used against the good citizen, maybe. But me screaming help police is not going to save me in any situation.
    So the effort to hang a silk curtain and change how I protect myself by weakling the second amendment is typical of laws gone bad. Pointing at Australia’s gun laws without talking about alcohol consumption is corrupt. Labeling your smart enough to know that alone may have stopped Sandy Hook. Tools. Your not correct you just talk like your right.

  • Dennis

    My My… a professor. You failed at US history now it up to a simple plumber to recount the truth. far from you claim simple flint locks were the norm for the military and civilians. The military even borrowed civilian technology and implemented the rifled barrel during the Revolution. The British thought so highly of their adversaries used the very same technology. Up until then the military norm was smooth bore muskets.

    Then we have an inconvenient truth. Here is the statement from Henry Knox First Secretary of War:

    “Sacred to Liberty: This is one of four cannons, which constituted the whole train of Field Artillery possessed by the British Colonies of North America, at the commencement of the war, on the 19th of April, 1775. This cannon and its fellow belonging to a number of citizens of Boston, were used in many engagements during the war. The other two, the property of the Government of Massachusetts were taken by the enemy. By order of the United States in Congress assembled May 19th, 1788. ”

    Now Mr. Donohue, please read this. The Secretary of War was returning the canon to several citizens of Boston, not to the Government of Massachusetts. The citizens were in possession of field artillery. Sorta blows you theory out of the water no doesn’t it. Since we are on the subject of water let me add this.

    According to the history in the US Maritime Marine Museum has a sight which quotes their sources and gives very accurate numbers of ships and guns, carriage guns and swivel guns. The site quotes that while there were only 64 armed ships in the Navy there were 1,697 privately owned armed ships operated by privateers. The total guns aboard the naval ships numbers just 1,242 while the Privately Owned vessels had 14,872 carriage and swivel guns aboard. In short the combined privately owned cannon and swivel guns were nearly 14 times that of the Continental Navy.

    Now did you get that historical fact sir???? You are simply parroting the appeals to authority and popular sentiment-you didn’t study logic either did you. If so you would know that appeals to authority, like you using your Phd. to submit for others to fawn over, are logical fallacies. On my God Im’ just a plumber and I know that…. Maybe you should get refund from that school you went to.

    Well moving on we come to Miller. The Court’s opinion in Miller that has been so horrendously abused by the Tories to confiscate our arms we do have left is just plain Marxist in nature. The Miller Court stated that “absent a showing” because no one showed up to argue or present a showing. the government now wants to take the whole damned thing out of context to make it appear that a short barreled shot gun has no militia use. I won’t even go on with addressing the absurdity of the reach that the rationale attempt.

    Finally, the Heller decision quoted several passages from militia statutes in reference to the arms used during the Revolution. They paint a picture that has been seized upon but the rabid Tories and attempt to say, from the Courts dicta-dicta is the irrelevant statements of the court that are not the official decision; it is very much frowned upon when submitting briefs to the courts and is never quoted-bad form Old Man-I might add, that the statutes pose some restriction upon the Right to Keep and Bear. A close examination of the statutes, together and taken in context, will show the mandate to keep certain arms at home limits to what a militia member could keep. Well sir it was the bare minimum he was to keep and that is why when he did not show up at muster with the bare minimum he was fined. Also if you look closely, or look at all for that matter, you will see that all the statutes included a bayonet. Now do you suppose that that is modern technology too. The Tories sure hate them….

    On the subject of “regulated” the term means well trained in drill and movement. It has nothing to do with restriction, regulated means to order you companies and units in well established drill and movement so that when smaller units are gathered they may act as one. Of course you did not serve in the military so you don’t know this, do you???? You see Alexander Hamilton warned us of this very thing in 1788. In the Federalist Paper 84 Hamilton stated that a bills of rights were dangerous. Enumerating certain rights might give those disposed to usurp a plausible pretext. He said that if it was not written there is no power to do. In Federalist 45 Madison stated that the “powers.. delegated were few and defined”. The specific statements identifying the reason that the whole people be armed to throw off tyranny are simply too numerous to even begin with. The Federalist has been used over 291 times to reference the “intent” of the Framers so their authority is quite beyond question.

    But I will give you this. If you wish to continue on in a public debate, anywhere any time, I will come there and give another history lesson. Who knows maybe you could teach the students the truth from now on. Of course I will have to be off from my plumbing job so give me a reasonable time to arrange the details with my boss.

    Dennis Jackson

  • Dennis

    Sorry for the spelling and grammar in my last… I get a bit passionate when I am attempting to reason with unreasonable.

    My Best to and my God Protect You.

  • George

    Maybe “The founding fathers had no idea how powerful–and destructive–today’s weapons would become.”

    I personally think that’s wrong, because I’ve read what they had to say about technology. Still, they knew very well how powerful and destructive government can be, else there would have been no Bill of Rights. That’s in their own words.

    Further, they used words for specific reasons. When they meant “abridged,” they meant it. When they said “infringed,” they meant that. And when they meant “shall not,” they meant that. Your words mean “shall.” How does one screw up THAT definition? By redefining what “is” means?

    The destructive power of inventions has historically been less than that of government. Even nuclear and chemical weapons, and air-dropped carpet bombing, have killed fewer people in history than have despots, so please, Professor, go back and read the Federalist Papers before you try to lie about what men of vastly superior intelligence to yours were thinking over 200 years ago.

  • AntiCitizenOne

    “The 2nd Amendment was meant to defend against Tyranny.”

    The key part is DEFEND. How will it look in the papers when YOU attack first, rather than The State attack first? Insurgents attacking first will always be seen as the aggressors rather than the defenders.

    “So you can own a nuke, right?”

    Here’s the thing about the tyranny part. The Tyrant’s armies are occupying YOUR lands.

    If you were back in Lexington and Concord in 1775 and you were facing the redcoats, would you really want to use that weapon? The weapon would incinerate you and your own troops! (keep in mind that the Brits had grenades at that time as well – whose blast radius was a million times smaller than any crude dirty bomb you can come up with.)

    Not to mention the fact that you’d irradiate an entire town for decades, if not centuries. A scorched earth policy does nothing for your insurgency other than turn the populace against you.

    They have no land to go home to, because even if they rebuild, radiation/bioweapons/chemweapons will still be affecting them.

    “What about mines then?” Mines can be removed because they at least can be seen.

    Chemical residue, bioweapons, radiation, not so much. Look at Chernobyl.

    An RPG, grenade only craters the ground – but does not make it literally inhospitable.

    The better question to ask now is this – why let the government have nukes/bioweapons/chemweapons?


    1. A nuke is extremely complicated to keep. Thorium triggers, clean rooms. Infeasible. 2. You don’t need a nuke. More damage can be done with either nuclear material wrapped around dynamite. You don’t even need nuclear material. Dioxin in exploding barrels. 3. Nukes are rare, expensive and hard to obtain. Anyone plunking down millions for one is NOT going to waste that investment. YES any can own a nuke. NO its not feasible to own a nuke.


    “Oh, you could just nuke a military base.”

    Again – same concept as above – you could just capture the military base and use it for your own ends or give it back to the people. Scorched earth tactics do NOT work for an insurgency.

  • AntiCitizenOne

    The only “freedom from” that you have is the “freedom from the elimination of choice.” What that means is someone is forcing you to take part in an act which you have no escape from or choice to take part in. When they talk about “freedom from religion” that means the State can’t force you to partake in a particular religion’s practice by force. A teacher praying before class is not an infringement on your rights, but a teacher punishing you for not praying with her is.

    Taking FDR’s comment about the Freedom From Fear of governments making the decision to go to war with undo haste to mean freedom from fear as a whole is disingenuous and a stretch. Especially using it as a means to disarm people because you’re afraid of guns when his own wife told the Secret Service to stay home while she and a friend went to Tennessee under threat of death by the KKK armed with a revolver. Eleanor was a true liberal. She genuinely cared about the impoverished in our country, and she had the, pardon the expression, balls to fight back with violence if need be.

    The truth is, you don’t have the freedom from fear, because there’s no telling what you’re afraid of. “I’m afraid of spiders, why isn’t the state spending money on the elimination of spiders?! It’s my right not to live in fear of spiders!” No, it’s your right to deal with spiders as you see fit. Just like its your right to deal with gun violence as you see fit. If that means staying locked up in your home 24/7 under a ballistic blanket in a safe room, by all means, but that does NOT give you the right to tell me what I can and can’t do. If my actions have caused you grievance then you can take me to court, but you do not get to tell me what to do to make you comfortable, period.

    You have the freedom of choice, you do not get to eliminate that freedom just because it scares or bothers you.

  • AntiCitizenOne

    If assault weapons are good for cops, they’re good for the citizen as well, who faces the same type of criminals as the cops do.


    30+ round magazines are needed as they can give the user of a semi-automatic weapon more chances to hit the CNS (brain, spinal cord) to stop an assailant on the spot, rather than waste precious seconds hoping for massive blood loss to finally take its effect on the body while the assailant continues their murderous assault. Sure, you’re supposed to aim for center mass, which WILL cause blood loss, but blood loss takes a long time to have its effect.

    Okay, so I needed to clarify that it takes more time to change out a magazine than it is to squeeze off a couple more rounds that could be the one that hits the spinal cord. Limiting magazine size forces you to reload more often – and you’re often taught to get behind cover to reload. That’s even more time wasted for an assailant to change positions to try and get the drop on you if you miss or did not hit the CNS.

    Not to mention that sometimes criminals and home invaders will work in multiples!?!?!?


    “Oh, but if you force the mass murderer to reload more often there will be more chances to tackle him/her.”

    To be blunt – the gunman is only facing in one direction whenever they are aiming. You could have tackled him even when they’re not looking in your direction. Magazine change or not, doesn’t make a difference.

    “So then why do you even need a gun to stop an active shooter?”

    If you’re the only one tackling the gunman be prepared if they are able to fight you off and get you off of them – once they’ve fought you off, unfortunately, you’re in a perfect position to be executed by them at near point blank range. A handgun (and some short barreled rifles) can be fired at especially close ranges (see “fire from retention”) to deliver maximum ballistic force to significantly reduce their physiological reserve to fight back moreso than fists or an edged weapon will.. Although an edged weapon will do just as well, if you don’t lose control of it.

    And in that case, why do you even call cops if you think “one does not need guns to stop a spree killer?” You know they have guns, correct? Would you want a plainclothes/off duty officer sitting in the crowd when that terrible day occurs?


    With gun owners gravitating towards ammunition designed for less penetration of walls, you’re essentially fighting with under-powered ammo that will have less ballistic effect on human tissue. If you’re relying on the pain of a GSW to stop an assailant, your “safer” bullets will not be as effective as standard issue hollowpoints or FMJ and you will need more of your “safer” bullets to have the same ballistic impact as other types of bullets.

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  • https://www.youtube.com/watch?v=94rcOVJBMYQ Winston Blake

    The law is nothing without the hands and swords of men.

    Nature is a perpetual state of war with every man against another.

    Fear of death is the only way to keep the peace, so man is civilized by the threat of violence against him for transgressions upon his neighbor.

    If the Iranians nuke Israel, the Palestinian scums also die in the fallout… win/win situation

    If it wasn’t for white Christians with guns, Fiendstein and Boxer would be a pair of ugly lampshades… If it wasn’t for white Christians with guns, Bloomberg and Schumer would be bars of soap… While Christians may use IUDs for birth control, Islamic birth control is an IED strapped to a ten year old child…

    You people are not worth defending in a war… if you don’t believe in my freedom of speech or my right to self defense, I will not defend you…

    May you have fun playing “spread the other cheek” with your new Islamic masters, because I will join the Russians before I join you.