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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    602 comments

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    • Comment Link Nicholas Sweeten Saturday, 09 November 2013 20:53 posted by Nicholas Sweeten

      The spirit of the Second Amendment - written in the wake of a revolutionary war against a tyrannical power, mind you - is to protect the People against the government. To give them the capacity to wage civil war (or revolutionary war, rather) against their own government, should the day come when the government was no longer able to listen democratically to its people (a day that I believe is long since past), and poses a threat to civil liberties and human rights.

      If that is the case then it stands to reason that as long as the government possess a military of its own, with weaponry of its own, the people should have equal right to own and possess the defensive and offensive weaponry to match, and thus keeping the powers that be in check.

      When your rights to possess and own weaponry is infringed to such a degree that you (not the individual, per se, but the civilian people in general as a whole) cannot possess equal military strength to deter its government from using its own military against its people... then its hardly different then being disallowed weaponry entirely.

    • Comment Link Josh in Champaign Saturday, 09 November 2013 20:40 posted by Josh in Champaign

      It's so ironic that the opponents of gun rights advocate the forcible seizure of arms, which relies on violence...which is the very thing that they claim to want to prevent. Stop and take a look around at where you've brought yourself to with your idealism.

      Even if you managed to do away with the Second Amendment it wouldn't mean that guns would suddenly be verboten across the country, it might allow some already restrictive states to enact a few more laws that were struck down on Second Amendment grounds, but for the most part, things would remain the same on a state by state basis, according to the laws or lack of laws brought about in their respective legislatures.

      American gun owners, whose voice is heard through lobbying groups such as the NRA (and you can say it's the gun industry lobby, but the gun industry doesn't produce anything that gun owners don't want, they represent our interests, we're all in this together) will continue to have the same influence on the state and federal level. So I say with all sincerity, you're better off moving to Australia.

    • Comment Link Benjamin Hayward Saturday, 09 November 2013 18:15 posted by Benjamin Hayward

      Burn the Constitution for all I care. All it does is PROTECT my right to keep and bear arms. My right is, was, and always will be my right, no matter who says what about it.

    • Comment Link Mike Barkleys an Idiot Saturday, 09 November 2013 14:00 posted by Mike Barkleys an Idiot

      Wow, Mike. It's no wonder you came in a distant fourth in your last campaign. Hopefully, for the people of California, that will be your best finish. Your stance on essentially every issue is idiotic. Period.

      If you're ok with repealing the 2nd Amendment, I'd propose we simply repeal the 1st Amendment, too. Since we've pretty well lost the 4th thanks to RINOs and progressive tools like yourself, it shouldn't be any great loss to lose a few more, right?

    • Comment Link Rob Honez Saturday, 09 November 2013 13:05 posted by Rob Honez

      "Technological advancements have created guns with capabilities far beyond those envisioned in 1789, and the Second Amendment is not capable of regulating such arms."

      If the second amendment only applies to arms envisioned at the signing of the Constitution, then the power to make war also only applies to it (as the primary reason for the second amendment was to protect us from government - the government was also limited). If I can only have muskets, then that is all the government is allowed to have.

    • Comment Link Ryan Saturday, 09 November 2013 09:34 posted by Ryan

      Just a few bullet points, no pun intended:

      -Self-preservation is the first law of nature.

      -Criminals will always have guns. Making law-abiding citizens criminals overnight will not fix that, but compound the problem.

      -If someone legally owning a gun and using it for lawful purposes, or just keeping it in their home for protection, bothers you enough to want to pass a law against it, then you have no basis for arguing against someone else wanting to pass laws for ANYTHING else that happens behind closed doors.

      -The police (me) cannot possibly get to your home in time to save you from an intruder. If you wish to surrender your inherent right of self-defense, so be it, but don't blame the police for not getting there in time to save you.

      -A gun in the hand of a 5'2", 100 lb woman negates any size difference between her and her attacker.

      -The absolute WORST violent crime rates are in cities where guns are forbidden. Mike Bardley apparently thinks this is "civilized."

    • Comment Link Kent J Saturday, 09 November 2013 08:33 posted by Kent J

      I am sorry. Has no one heard of a flash mob? What about RIOTS? Have they stopped? Is everyone 'civilized'? Do the police show up in 5 seconds? (remember.. when seconds count the police are there in 15 minutes).

      There is only one reason we should be able to keep our source of self defense. It is this. Daughters get raped.

      Period.

    • Comment Link Bradly Davidson Saturday, 09 November 2013 02:30 posted by Bradly Davidson

      Well said Mike Barkley, or should I say Adolph Hitler.

    • Comment Link Milehisnk Friday, 08 November 2013 16:34 posted by Milehisnk

      I guess Mike Barkley is a total moron, since he has no concept of the fundamental differences between us and other countries. So what if other civilized countries only allow firearms as a privilege? It's a RIGHT here, and I'm not giving it up, along with millions of other people.

    • Comment Link Mike Barkley Friday, 08 November 2013 03:47 posted by Mike Barkley

      Civilized countries allow guns as a privilege, if that, not a right. We need to become civilized:

      http://www.mjbarkl.com/repeal.htm .

      --mike

    • Comment Link Jamie Thursday, 07 November 2013 19:16 posted by Jamie

      The US is third from the highest in murders per capita, but if you take away Chicago, Detroit, New Orleans, and Washington DC, all Democrat run cities with strict gun control, we are third from the bottom. Not to mention the statistics include self defense killings and suicides. When you look at FACTS, the answer is simple. Guns make us safer. Period.

    • Comment Link Stefan Babjak Thursday, 07 November 2013 07:45 posted by Stefan Babjak

      I don't own any guns nor do I shoot as a hobby, it's too damn expensive. But it IS the right of any non felonious, non insane citizen to buy and maintain a firearm. What needs to change is laws against drugs that drive the VAST majority of gun violence in this country. Black on black gun violence is rampant, everyones quiet, Mexican and Central American gangs are slaughtering each other with high powered weapons, no one says anything. A little nutcase white kid goes on a rampage and kills 30 innocent children in one fell swoop, now we have an issue and therefore every single person should be punished and ostracized for having weapons. That is false logic. Fear. Fear controls us all.

    • Comment Link B. Will Thursday, 07 November 2013 05:25 posted by B. Will

      One of the best comments I've read in regards to the rights (and duties) inherent in the 2nd Amendment is that when the Founders spelled it out and gave it to the citizens as an inherent and important aspect, they were in effect giving the citizens their trust and hoped that they would understand the responsibilities that come with the right to bear arms. For the majority of our nation's history, that trust has been kept more or less intact. But in the last sixty years or so, like so many things in America, the right to bear arms has been abused and sullied and all but dragged through the mud. This is not, however, a legal issue or, for that matter, an issue inherent in the very structure of a gun, as a gun cannot stop itself from being fired. Rather, this issue, like many others, is at base a moral, cultural, and social issue.

      Can we honestly say that we are surprised when a mass murder occurs when our society at large glorifies death in its art, be it television, movies, video games, or what have you? Or, for that matter, when it's a "constitutional right" to end a life before it can even begin, when it is most vulnerable? I understand that abortion is a separate issue for many, but honestly the issues of murder rates and how our culture defines life and values it are inextricably linked. When life, particularly that of children born or unborn, becomes cheap both in reality and our fiction, our media, our art, then we have no way to be "shocked" when such things as school shootings and intra-community cleansing (see black on black crime) happen. When more people play GTA V than read the Bible or take time to contemplate philosophy or study history, then our culture is in dire straits. When more people can quote "Fight Club" than the Constitution, we as a society are failing the future generations. Our murder rates and problems associated with guns are not due to the inherent "evil" of guns, but rather that "evil" doesn't exist in our increasingly relativistic society, and as a consequence, life loses its sacredness. Nihilism at its most horrific and most banal. And yet we act surprised and call for more laws after the more heinous crimes, as if the previous laws prevented them from carrying it out. When the soul is sick, the commonwealth and society becomes sick. To paraphrase a recent comment from a scholar, "Hollow are the souls that have forgotten how to shudder."

      As to the other issue, that of the assertion that thanks to a well-armed police force and professional military, this gives us even more cause to worry and "cling to our guns." As a WSJ writer recently noted, the gaps and differences our police and our military are quickly closing, with SWAT teams looking and operating more like Delta Force or SEALs with an "us vs. them" mentality than officers of the law dedicated to "protect and serve" mentality. Perhaps this is a natural consequence of the rise in murders in our cities, but even this reflects a growing reliance not on ourselves and our neighbors and civic communities, but rather on a growing and increasingly overweening government apparatus that is also increasingly bureaucratic and impersonal. When government grows impersonal, that is a sign to be vigilant. The necessity of responsible gun ownership is understated and cannot be overemphasized. It is time to realize just how much we as a nation and society have relinquished power over our selves and our communities, and what we must do to safeguard not only our security and order but also our liberties. Our Founders were far-sighted in that they understood from historical precedence (Roman Republic and its fall) that when an impersonal military/police gains enough power and is lead by a man/group of men of ill ambition, then liberty hangs by a very thin thread.

      To sum, if we want a safer, more peaceful society, we must reform our culture. When this is achieved, if it is achieved, then the need for a militarized, bureaucratic government that can be used to reduce our freedom becomes less. To paraphrase a famous philosophic thinker, "the most appalling crimes in human history have been justified by 'acting in man's best interest'." Let us take this to heart, and reform our hearts and souls accordingly.

    • Comment Link Ki Thursday, 07 November 2013 03:13 posted by Ki

      while I see the valid point in removing the ability to bear arms, the fact still remains. Those that do not follow the law will still find ways to acquire them. If the law abiding citizens were to have their means of protection taken away, would that not leave them in a one sided situation against the jerk who just waltzed into their home with a pistol to take everything they own?

    • Comment Link Leslie Thursday, 07 November 2013 01:56 posted by Leslie

      If the 2nd Amendment is outdated (because the Founding Fathers only had MUSKETS), then so is the 1st Amendment. Hard to believe, but there was no internet, no smart phones, no TV, no radio. It's your right not to like guns. DON'T BUY ONE. It's also my right to do the opposite. If they outlaw guns, I WILL BE AN OUTLAW.

    • Comment Link Edward Thursday, 07 November 2013 00:11 posted by Edward

      When the State recognizes that police have a duty to protect us, then I will consider the argument against the personal right to bear arms. Thus far, the Courts have determined that the police have NO duty to protect someone from harm.

    • Comment Link Richard Peters Wednesday, 06 November 2013 23:41 posted by Richard Peters

      I don't remember any president that has tried to ban our 2nd Amendment, or at least on the least 30 yrs I've lived. The government already has too much power and ours is too big... So we need to start with that... What ever happened to BY THE PEOPLE FOR THE PEOPLE...when did this change...

    • Comment Link Angela Wednesday, 06 November 2013 23:39 posted by Angela

      taking away guns from law-abiding citizens is not going to lower crime...If anything, crime will be on the rise. Criminals don't care about the laws...obviously, or they wouldn't be CRIMINALS.

      And you can't tell me that police can be there within 1 minute of calling them for help...so how are they going to protect law-abiding citizens from getting beaten, robbed and worse killed?

    • Comment Link Clinton Washabaugh Wednesday, 06 November 2013 23:21 posted by Clinton Washabaugh

      I truly believe in our rights and for the government to come and try to change our rights is unconditional, so to our government leave the rights of the people alone, you can't protect us let alone your selves.

    • Comment Link Kathleen Berger Tuesday, 05 November 2013 15:19 posted by Kathleen Berger

      The comment section is without a doubt inundated with the present day self righteous Trolls! Sad in deed when one would like to hear some intelligent conversation.

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