The Constitutional Right To Bear Arms Has Outlived Its Usefulness

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Illustration by Thomas James

Thursday, November 14, 2013

“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.” –2nd Amendment

Recent mass shooting tragedies have renewed the national debate over the 2nd Amendment. Gun ownership and homicide rates are higher in the U.S. than in any other developed nation, but gun violence has decreased over the last two decades even as gun ownership may be increasing. Over 200 years have passed since James Madison introduced the Bill of Rights, the country has changed, and so have its guns. Is the right to bear arms now at odds with the common good, or is it as necessary today as it was in 1789?

  • Alan-Dershowitz

    For

    Alan Dershowitz

    Professor of Law, Harvard Law School

  • levinson sanford  90pix

    For

    Sanford Levinson

    Professor of Law and of Government, University of Texas

  • Kopel official 90

    Against

    David Kopel

    Research Director, Independence Institute & Associate Policy Analyst, Cato Institute

  • volokh eugene90

    Against

    Eugene Volokh

    Professor of Law, UCLA School of Law


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      MODERATOR

      John Donvan

      Author & Correspondent for ABC News

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Alan-Dershowitz

For The Motion

Alan Dershowitz

Professor of Law, Harvard Law School

Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.” He is a graduate of Brooklyn College and Yale Law School and joined the Harvard Law Faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. He has published more than 1,000 articles in magazines, newspapers, journals and blogs such as The New York Times Magazine, The Washington Post, The Wall Street Journal, The Harvard Law Review, the Yale Law Journal and Huffington Post. Dershowitz is the author of numerous bestselling books, and his autobiography, Taking the Stand: My Life in the Law, was recently published by Crown.

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levinson sanford  90pix

For The Motion

Sanford Levinson

Professor of Law and of Government, University of Texas

Sanford Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair in Law, joined the University of Texas Law School in 1980. Previously a member of the Department of Politics at Princeton University, he is also a Professor in the Department of Government at the University of Texas. The author of over 350 articles and book reviews in professional and popular journals--and a regular contributor to the popular blog Balkinization--Levinson is also the author of four books, most recently, Framed: America's 51 Constitutions and the Crisis of Governance (2012). He has edited or co-edited numerous books, including a leading constitutional law casebook Processes of Constitutional Decisionmaking (5th ed. 2006). He received the Lifetime Achievement Award from the Law and Courts Section of the American Political Science Association in 2010.

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Kopel official 90

Against The Motion

David Kopel

Research Director, Independence Institute & Associate Policy Analyst, Cato Institute

David B. Kopel is the research director of the Independence Institute, in Denver, and is an associate policy analyst with the Cato Institute, in Washington, D.C. He is also an adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law. In 1999 he served as an adjunct professor of law at New York University. He is the author of 16 books and 85 scholarly articles, on topics such as antitrust, constitutional law, counter-terrorism, environmental law, intellectual history, and police practices. His most recent book is Firearms Law and the Second Amendment (2012), the first law school textbook on the subject. Kopel was a member of the Supreme Court oral argument team in District of Columbia v. Heller (2008). His Heller and McDonald amicus briefs for a coalition of law enforcement organizations were cited by Justices Alito, Breyer, and Stevens. The federal Seventh Circuit Court of Appeals has lauded his scholarship as showing the proper model of the “originalist interpretive method as applied to the Second Amendment.” He is currently representing 55 Colorado Sheriffs in a federal civil rights lawsuit against anti-gun bills passed by the legislature in March 2013.

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volokh eugene90

Against The Motion

Eugene Volokh

Professor of Law, UCLA School of Law

Eugene Volokh teaches First Amendment law and tort law at UCLA School of Law, where he has also taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Supreme Court Justice Sandra Day O'Connor and for Ninth Circuit Judge Alex Kozinski. Volokh is the author of two textbooks and over 70 law review articles; four of his articles on the Second Amendment have been cited by Supreme Court opinions, as well as by over two dozen opinions from other courts. Volokh is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, the founder and coauthor of the blog The Volokh Conspiracy, and an Academic Affiliate for the Mayer Brown LLP law firm.

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Declared Winner: For The Motion

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Voting Breakdown:
 

71% voted the same way in BOTH pre- and post-debate votes (58% voted FOR twice, 12% voted AGAINST twice, 1% voted UNDECIDED twice). 29% changed their minds (4% voted FOR then changed to AGAINST, 2% voted FOR then changed to UNDECIDED, 5% voted AGAINST then changed to FOR, 1% voted AGAINST then changed to UNDECIDED, 11% voted UNDECIDED then changed to FOR, 6% voted UNDECIDED then changed to AGAINST). Breakdown Graphic

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    601 comments

    • Comment Link Robert Thursday, 14 November 2013 16:48 posted by Robert

      It's entertaining to watch all the gun nuts come out of the woodwork when anyone even suggests debating the amendment.

    • Comment Link Danny C-W Thursday, 14 November 2013 16:35 posted by Danny C-W

      The 2nd Amendment of the US Constitution has certainly not outlived its usefulness. All the 2nd Amendment does is officially observe our human and individual right of self-defense. This right extends to the defense of our country as well. The people are the Militia the modern context of the word, "regulated" is not what was used when the Bill of Rights was written. Back then, well regulated meant properly functioning. Our Supreme Court has recently recognized the 2A as an individual right, available to all Americans.

      Our police departments are not responsible for our safety. They do not have an obligation to keep us safe. They cannot always be there. We are the first responders to a critical event. Americans have the freedom to defend themselves if their lives are threatened and they can respond with force if they choose to.

      There are over an estimated 300 million firearms in private hands today. Almost half of all households have at least 1 firearm in them. Despite this increasing number of firearms ownership, violence in general has been on the decline here since the 90's. On average, around 30-35,000 people die each year in the U.S. on the wrong end of a gun. Two-thirds of these people take their own lives, and the majority of other deaths are homicides. Accidents also make up the percentage, but this number is small (around 4k a year) when one looks at how many firearms are available here.

      Mass shootings like VA Tech, Aurora, Columbine, and Newtown are statistically very rare. They are no less tragic, but painting these horrible events as an epidemic reflection of a violence obsessed American society or our large gun-culture is misguided and inaccurate. In each of the above examples, the shooters were able to wreak havoc in areas where there is little to no armed response. Guns were legally banned in all of those places, but that didn't stop the sickly determined attackers from killing innocents.

      The 2A was not used in any of these instances. These attackers were not defending themselves or working to defend a free state. They were responsible for murder. Had someone been there to exercise their 2A right, perhaps more lives could have been saved. Instead, the rules instituted in those locations prevented law-abiding folks from doing just that and removed any and all possibility of a legal armed response from someone actually there.

      Could the recent mall attack in Kenya have happened the way it did if it were in Texas? Arizona? Pennsylvania? In a place where citizens are allowed to carry firearms for defense? Was it not a few armed folks inside the Kenyan mall that were able to escort dozens of people to safety?

      The 2A is there for our benefit. Our founders made it enough of a priority to get it on the Bill of Rights where it is, right behind our freedom of speech, press, and religion.

    • Comment Link James Brooke Thursday, 14 November 2013 16:26 posted by James Brooke

      The Second Amendment was enacted to ensure our rights and freedoms from a totalitarian government. If we lose this we become no better than a Communist nation.

    • Comment Link Rob Thursday, 14 November 2013 15:47 posted by Rob

      Wow. These conversations about the 2nd Amendment degenerate off topic so quickly.

      for the conversation on gun control to mean anything everyone needs to start from the same place, and on this topic, Americans can't seem to do that.

      first - the 2nd Amendment does not protect "sportsmen" let's get that out there. A well regulated militia is not necessary for the protection of people from deer.. that's not what the anti-federalists had in mind.

      second - the protection of liberty from a tyrannical government is a falsehood. If the full force of the US military was used against any individual, or even a whole state (even Texas) there should be no question what would happen. You don't have to like Obamacare, and you can blog about it all you want, but if you think you can pull an armed rebellion with what's in the safe, forget it. (and that's not going to change whether you're allowed to have AR-15s or not)

      second . 5 - The fact that the government continues to "arm up" more and more is not a valid argument to say citizens should be allowed to do the same. It doesn't matter how many parts you're allowed to buy to trick-out your AR platform rifle, you're not going to stop a swat team if they really want to take you out. (and why would they want to???)

      third - gun control would NOT have made ANY difference in the case of Sandy Hook Elementary. the guns were purchased lawfully and later used by someone who should not have had access. Let's also stop the irrational argument that making something "illegal" stops it from happening.


      at the end of the day, the conversation about the 2nd Amendment should be about whether a "well regulated militia" is really required for the "security of a free state" anymore, or not. Any other hypothetical discussion about saving kids from gunmen, or preserving liberties that are so often misunderstood is an emotional feces-fest, and off topic.

    • Comment Link Susan Fuchs Thursday, 14 November 2013 15:06 posted by Susan Fuchs

      these rights are guaranteed, period. they are not subject to emotions nor whims, period!

    • Comment Link Robert Thursday, 14 November 2013 15:03 posted by Robert

      Actually the Constitutional right to bare arms is just now approaching its useful intention! Our founding fathers only meant this amendment to allow the people to protect themselves from a tyrannical government. PERIOD!

      It is natural once we get the tyrannical government that they would want to remove the amendment that was written solely to protect us from them!

    • Comment Link breathil Thursday, 14 November 2013 14:18 posted by breathil

      The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.". --Thomas Jefferson

      We now have a government that is- by definition- fascist. Historically, our current situation closely resembles that of pre-WW2 Nazi Germany, around 1933-1934. With the SCOTUS blatantly ruling to dismantle the Constitution piece by piece, our rights will be stripped away, and we will be forced to live under the boot of a tyrant.

      It is expressly for this reason that the 2nd Amendment was written; a doomsday scenario. And considering how overtly corrupt and despicable our government now is, the 2A is more relevant now than ever before.

      The failure of the author of this article, to understand the plain facts as I have described them, is due to willful ignorance or sheer stupidity. Those of us who have arms understand, and won't be deterred one iota from maintaining our rights.

      Mao said "political power comes from the barrel of a gun.". He was right. WE will not give up power over our own lives, our own safety, to such weak and stupid people as the author of this article. You will be sorely disappointed if you choose to test our resolve in this.

    • Comment Link Python Thursday, 14 November 2013 14:11 posted by Python

      Without the 2nd Amnd. we would live under a dictator.

    • Comment Link Eileen Soderstrom Thursday, 14 November 2013 14:10 posted by Eileen Soderstrom

      The Second amendment has been misinterpreted beyond all possible common sense. The desire to insure that the government could maintain and REGULATE militias nas somehow been warped to let some claim that individuals have the right to own, carry and use weapons in public society. This is an immoral and unethical distortion that needs to be corrected and will be corrected. Not soon enough, but it will happen.

    • Comment Link John Thursday, 14 November 2013 14:10 posted by John

      As long as we have a government and we wish to live in a free state; the individual right to keep and bear arms will be necessary. Did we get rid of our government? Are we no longer a free nation? If the answer to either is still ‘no’ then the Second Amendment has not outlived its usefulness. In fact, it looks to me that it was crafted precisely for days like these!

    • Comment Link Drew Thursday, 14 November 2013 14:03 posted by Drew

      The police are not responsible for my safety and security. That is the flaw in the motion. If they were responsible, then they could be held accountable if something happened to me. The courts including the US Supreme Court have made it clear that the police are not accountable nor responsible for protecting individual citizens. That is up to each of us. Having police is good for society, but it is not a complete solution and does not change my personal responsibility for my own safety.

    • Comment Link Paul McRae Thursday, 14 November 2013 13:58 posted by Paul McRae

      Second amendment guarantees that all the other amendments are not lost!

    • Comment Link Kat Thursday, 14 November 2013 13:56 posted by Kat

      The 2nd Amendment was never added to the Bill of Rights to "regulate" fire arms at all. It was added to the Bill of Rights ensure that INDIVIDUALS could protect themselves from a tyrannical government. The tyrannical government they faced in the late 1700's was England. The tyrannical government we face now is the Obama Administration. Do you really want to be disarmed at this stage of the game? I certainly don't; not for the benefit of a society that wishes to cower behind a policeman who may just turn out to be the enemy too. Wake up!!!!

    • Comment Link Hugh Thursday, 14 November 2013 13:45 posted by Hugh

      I do not have anything new to add that has not already been posted here, but to say that those who don't like our constitution and the liberties and freedoms it defines and protect, are free to leave at any time & I will be glad to help shove the into a shipping container to what ever hell-hole country that has the same values they are trying to foist upon us!

    • Comment Link Joe Thursday, 14 November 2013 13:33 posted by Joe

      You guys have nothing better to do.... The second amendment was the reason you have the right to even have this conversation so watch your mouth!

    • Comment Link Dan Thursday, 14 November 2013 13:30 posted by Dan

      Besides your premise being flawed the patent misunderstanding of the US Constitution is blatant. There is nothing which states the federal govt was created for "the common good", in fact there is nothing in the US Const. referring to the common good. There is a general welfare clause, which has been raped and misapplied throughout the years, but the idea the govt has to make laws for "the common good" is false.

      Your argument fails from the outset since your premise is flawed. Correct your premise and you can then ask the correct question which is; Does the federal government have any authority to write laws or regulations regarding guns? The answer is contained in the US Constitution and is a resounding NO. Absolutely nothing in the US Const grants the feds any authority to make law or pass regulations on guns. And no, I am not talking about the second amendment. I am talking about the US Constitution which is the single document which outlines the SPECIFIC powers GRANTED to the federal government, and nowhere in there is that a granted power. The BoR is not a list of limited "rights" granted to the citizens, and thus an uneducated mind would assume that the rights not specifically listed can be infringed, but that would be wholly incorrect and completely ignorant (read the 9th Amendment). The US Constitution exists simply and ONLY to grant specific and limited powers to the federal government and that's it. There is no list of limited "rights" granted to citizens by the constitution. The very proposition or implication is absurd.

    • Comment Link Michael Thursday, 14 November 2013 13:28 posted by Michael

      foreign or domestic tyranny! We used to be a government of we the people. Now it's a government of how do I get more resources, money, power, and control and who cares about the people. Yes, we have a huge police state/country now and it increases every day. who actually protects the "real" people as this country continues to go astray? Who actually has the "people's" interest at heart? The people, that's who. As soon as guns are confiscated, there's nothing left for us to defend ourselves. We're not a democracy, well, now we probably are. We were formed as a republic - look up the difference.

    • Comment Link JAMES MATHIS Thursday, 14 November 2013 13:11 posted by JAMES MATHIS

      molesting the constitution should be the ultimate crime that being said .... can anyone honestly tell another they may not have the right to defend themselves deny them free speech or any other way defial such a document these are the terms we set against the brittish rule and if this isnt good enough for you there are plenty of other countries that can acomadate you without treading on what you should be thanking god to have been born into . yup i said it god .

    • Comment Link Bryan Keith Rohrer Thursday, 14 November 2013 13:10 posted by Bryan Keith Rohrer

      The fact that we are even having this debate demonstrates that we take our freedoms for granted. The second amendment hasn't lost it's usefulness, but it has become more viable.

      Hitler, Stalin, Pol Pot, Mao and other dictators have 100% been against an armed citizenry. A gun commits no crime, and a spoon doesn't cause you to gain weight.

      "If we don't learn from history, we are destined to repeat it". The argument isn't about gun control, it is about tyrannical control. If we give up this freedom, what will be next that we would be forced to give up.

    • Comment Link Chris Thursday, 14 November 2013 13:10 posted by Chris

      There are plenty of countries that don't have a right to bear arms. Move there.
      What? You don't feel safe there? They don't allow you the same freedoms as here?

      Then clam up.

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