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.