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

Online Voting

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 CJ Thursday, 14 November 2013 12:16 posted by CJ

      A debate like this does more harm than good for the simple reason that the loudest people are also the craziest people and they don't understand nuance. And this is true on Both sides of the debate.

      In literally every discussion I have ever had regarding guns, gun safety, and gun regulation I never get a chance to argue my actual point, because I spend the entire time trying to explain that not only am I not talking about banning guns, or taking your guns, or anything that removes a single legally owned gun from a single legal gun owner, but not a single serious voice in favor of increased regulation is talking about taking guns away from people.

      People who are in favor of even more lax gun regulations most often point to the high number of guns and low number of gun related crimes in Switzerland or Israel, but ignore the fact that in both countries, a military term of service is a requirement for all citizens, and every single person gets training in the handling of firearms. Which leads me to my solution.

      Not that everyone should have to serve in the military, but that if you want to own a gun you should have to go through a background check, and go through a serious, strenuous training course that consists of several hours of both classroom instruction (regarding both the laws as well as safety, security, and maintenance), as well as in range instruction on the operation. Once you have finished your mandatory training you have to pass a test and then can take possession of your gun. We already have the model in place here in California with our drivers training. Private companies provide the training, and the state administers the test, and as a general rule it does pretty well. (As long as you don't count california rolls at stop signs against us.)

    • Comment Link Tony Thursday, 14 November 2013 12:15 posted by Tony

      The Second Amendment is anachronistic today. It was written in a day and age where the possibility that a foreign nation would invade (the British, and they did in 1812) was a very real one. Coupled with the fact that we were a young, poor country, with little ability to muster the numbers necessary to have a large standing Army, yes, we needed to have a sizeable back up, in a citizen militia. We did have paranoia at that time amongst the Anti-Federalists and Federalists alike about a "tyranny of the majority" and mob rule taking over government. To ensure we had a back up against foreign invasion, and to guard against that pesky "mob rule", we needed to make sure that folks had the ability to have weapons, an ability that was taken away from the Framer's fathers, grandfathers and great-grandfathers in England and in the Colonies. The Founding Fathers were not about to make that mistake again. In the 1780-90's the height of technology in firearms was the flintlock rifle. There were no automatic weapons that could spray hundreds of bullets in seconds of time. Time has changed, firearms are far more lethal than they were in the 18th and 19th century, there is also more firearm violence amongst the citizenry today, than there was during that time. There were practical purposes in possessing a firearm in the 18 and 19th centuries, as a good portion of the population, still lived in rural areas and made use of the weapon to ensure they had enough to eat. Very few hunters today, even fewer using automatic weapons, hunt to subsist. You also today have the Weberian idea of the state, in order to be a viable entity, needs to have a monopoly on violence. You can see in places around the world, where the state no longer has that monopoly, and how their continued viability is threatened because of this.

    • Comment Link Frank Thursday, 14 November 2013 12:04 posted by Frank

      Just remember Nazi Germany had a strong army and police force prior and during WWII. Both were used to ensure the people complied with any government decisions or actions out of fear. So when you or someone else says why didn't the German people stop Hitler , just remember they had nothing to stop him with. Gun control at its peak.

    • Comment Link Joshua Thursday, 14 November 2013 12:02 posted by Joshua

      Four words that end the debate: SHALL NOT BE INFRINGED

    • Comment Link John Shepard Thursday, 14 November 2013 12:01 posted by John Shepard

      When Europa passes laws nobody can raise any issues over it. Banks can take your savings, governments can slash your military to a shell of their former selves, why? Because the people are all bark and no bite.

      Why would you fear a population that has no means of putting weight behind their words?

      Look at Egypt, they call it a people's revolution; yet if the military hadn't backed them it would have ended very differently.
      Lybia, the west came to their aid for they lacked the weaponry to defend themselves.
      Syria, first place was to raid military warehouses for equipment because the people didn't have any.

      Your first amendment has as much reach as the second. The cure sometimes is worse than the disease. In Europe governments bribe their police officers not to show real data, we already know it happens, Britain was the latest. Crime spikes, criminals still get weapons. Why? because the law applies to those who follow it.

      Last I check, prohibition had worse consequences, war on drugs, war on guns etc etc etc. We want to live in a world where we do not need weapons, we all want that, but enacting policies based on the illusion that we already live in a Utopia does nothing but to put in danger lawful people who won't be able to get a weapon while thugs still have them due to their connections. So who are the real targets of stricter gun laws, If those it disarms aren't the criminals in the first place?

    • Comment Link mbt schuhe zug Thursday, 14 November 2013 12:00 posted by mbt schuhe zug

      The Constitutional Right To Bear Arms Has Outlived Its Usefulness

    • Comment Link Robert Thursday, 14 November 2013 11:59 posted by Robert

      Every Country that has given up their arms have lived to regret it.
      The fact is, where gun ownership is up crime is down. As long as greedy politicians run this country the second amendment is one of the most useful.

    • Comment Link Don Thursday, 14 November 2013 11:57 posted by Don

      A well-equipped population, able to rapidly self-organize into an effective and independent fighting force, is necessary to ensure the freedom of the People and the security of the free Republic. Therefore, the right of the people to keep and bear arms shall not be infringed.

      It's easy to get caught up in the idea that "government tyranny" is not a threat because people usually only think about it at the federal level and they think about how many checks and balances and how much of a diversity of ideas there is in federal government.

      However, all over the country, one rural sheriff's department infiltrated by racists, one local government and police department with a rotten culture... these entities with no immediate deterrents can pose imminent violent threats to free people. Exercising the right to keep and bear arms is the last check and balance between the victim and an instance in time of a locally corrupt state who has crossed the line.

      The other checks and balances, the justice system, these can issue decrees after the fact whether or not your death was unjust. These can promise punishment, but only if the perpetrator didn't scrub enough evidence to prevent proof beyond a reasonable doubt. That doesn't help you in the moment you needed it to, and it may not help at all depending on the motivation of the perpetrators.

      Like it or not, force is the common denominator of human interaction. Force is convincing regardless of the person's ideology or views, regardless of how much hate or delusion they have. Force can be immediate. When all else fails force remains.

      -D

    • Comment Link Hal Thursday, 14 November 2013 11:55 posted by Hal

      The right to keep and bear arms has never been more relevant than it is in today's world of over-reaching, ever more intrusive governments, corrupt law enforcement, and economic crisis.

      The founding fathers realized that human nature doesn't change, so they added a final check on the power of the new government they built. In the event that the majority were to become truly tyrannical, or to ignore the limits imposed on it by the Constitution, the people were guaranteed the tools required to maintain a credible threat of forceful non compliance. That might not seem like much, but it does have a chilling effect on legislators and regulators. That effect is one of the reasons we retain what freedoms we have today, despite the nearly overwhelming incentives our politicians face to usurp and sell them to the highest bidder.

    • Comment Link Julian Sanchez Thursday, 14 November 2013 11:52 posted by Julian Sanchez

      If you discount the fact Britain bribes its cops not to tell the real story regarding their increased crime rate, if you believe criminals follow the law, if you don't count than in Latin America where gun ownership is extremely strict and people still get robbed at gun point and shot after they give in.

      The same fear stems from media coverage, like with passenger jets. How many die from alcohol, how many die from substance abuse, car accidents, acts of nature, and while flying is safer by magnitudes above all others people are still afraid. Why? Because there are tens of thousands of deaths from all of the others combined, people die in home disputes, stabbings beatings with baseball bats, but the media doesn't spend 4 weeks hovering over the same story like they do with a jet that went down and killed dozens of people in one instant. Cars kill a few people in a car crash, domestic dispute kills less than 5 so we barely hear about it, and the deaths and crime in pure numbers is higher.

      Yet there is a large number still afraid of flying, as they are with weaponry, why? because is what the media covers.

    • Comment Link Nick Thursday, 14 November 2013 11:47 posted by Nick

      Surprise, surprise. 98% of American's are against gun control. We understand that an armed citizen populace is the ONLY protection against an out of control police state! This has been proven, over and over throughout history. Our current leaders may not take advantage of a disarmed citizenry but just give it time, it would be the demise of America as we know it!

    • Comment Link Christi Thursday, 14 November 2013 11:46 posted by Christi

      Seriously? Who would even think that a constitutional right is 'outdated'? These are the rights that are the foundation of our country. Luckily for you, you have the freedom of speech to ask these questions. But take one right away and the rest will fall like dominoes (especially since we would then be in a country where only the government and criminals are armed!) Even our military personnel are sworn to uphold the constitution against all enemies foreign and domestic.
      I can't imagine the laugh our enemies are getting out of this line of thinking. They just hope we're stupid enough to disarm ourselves...

    • Comment Link USMC77 Thursday, 14 November 2013 11:45 posted by USMC77

      I'm AGAINST the motion. Couldn't seem to find a way to vote...not sure why...but here's my vote. Probably won't get seen.

    • Comment Link Pat Hines Thursday, 14 November 2013 11:45 posted by Pat Hines

      There no no debate to be had, that ended with the passage of the Second Amendment over 200 years ago.

      The Right of Self Defense with any weapon isn't subject to arguments of utility nor to the democratic process.

      No right is so subject.

    • Comment Link MIke Thursday, 14 November 2013 11:41 posted by MIke

      Looks like those who want to take guns are far out numbered in this survey, which I bet reflects the general public view. Now if we could repeal the NY Safe Act we would be moving in the right direction in NY.

    • Comment Link Will Thursday, 14 November 2013 11:39 posted by Will

      To think that even in today's world we should disarm citizens and rely on the government is outrageous. Look at Chicago. The have some of the most strict gun laws in the US, and one of the higher murder rates by firearms. Is the law working there? It does not appear to deter violence. I'm a firm believer that if the we disarm citizens we reduce the balance of power and allow the government free reign to take whatever action they please unchecked. It would be no different than the nazis and we would live in a police state. I for one am not willing to lay down so easy.

      If disarming citizens is such a great idea, then why do we provide weapons to other countries to fight their personal wars? Apparently they can't just "talk it over" because bullets speak louder than words when power is at stake. Out government is supposed to be formed by citizens to govern our citizens. Our politicians have some of the highest net worth in the country, and don't take their position as a service to out country, instead it is taken as a position of power and a way to increase their wealth. Our country has lost touch with our roots and foundations. I worry about our future. When are we going to have some representatives that have a pair and will fight for what is right and what they believe on instead of worrying about donation to their next election so they can stay in their high profile position.

      I think we should wipe the slate clean, take our original laws, and start all over. Figure out how to pay off our debt, be self sufficient, re-elect all positions of government, because what we have now obviously doesn't work, and become the world leader we were meant to be.

    • Comment Link Roger Thursday, 14 November 2013 11:38 posted by Roger

      It is my RIGHT to protect my self. If someone breaks into my home intending to harm myself and my family, they will be greeted with a 12ga. The police cannot be everywhere, and by the time I call them and they arrive I guarantee it will be too late.

      Everyone has a right to protect themselves.

    • Comment Link S. Jones Thursday, 14 November 2013 11:35 posted by S. Jones

      Come and take them.

    • Comment Link Eric M Thursday, 14 November 2013 11:35 posted by Eric M

      I don't trust your claims, since I don't trust those that would disarm the people. History has shown the horrors of those that have been disarmed and the high murder rate is a great example of what happens when the people can't protect themselves.

    • Comment Link Creep Doggie Log Thursday, 14 November 2013 11:34 posted by Creep Doggie Log

      The civilian police are a clean-up squad. They prevent some crimes by capturing violent criminals after they have already caused harm, but the justice system is a catch-and-release game that doesn't do much to protect individuals or families.

      People who are attacked need to be able to defend themselves NOW, and not have to wait for the government to show up.

      The military is prohibited by law from engaging in civilian law enforcement, so it's not even relevant to the discussion at hand. Read up on the Posse Comitatus Act. Invoking the existence of a standing army in the context of a discussion of civilian gun ownership is a Red Herring fallacy.

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