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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    606 comments

    140|-
    • 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.

    • Comment Link Henry Thursday, 14 November 2013 13:06 posted by Henry

      Yes, we have a ''large'' standing army to protect us from foreign countries, but who would protect ''us'' from that same army in the hands of our government officials? You can see what they are trying to do to us now, while we are armed. What would they try as soon as we were disarmed?

    • Comment Link Uxi Thursday, 14 November 2013 13:04 posted by Uxi

      The Founders provided a mechanism to adjust anachronistic provisions of the Constitution with a legal Amendment process. That said, there's a word when only police and military have weapons: aristocracy. The fundamental Natural Right to defend one's own life and resist tyranny has nothing to do with technology. The technology, mechanics, and chemistry of most firearms is just not that complicated as the handmade weapons of the 19th century showed.

    • Comment Link Leonard Rusciani Thursday, 14 November 2013 12:51 posted by Leonard Rusciani

      The right to bear arms is more relevant today than in 1789 BECAUSE our federal state and local governments have grown so much in scope.
      We are a nation of laws and not men. That means that we need the minimum number of people to uphold the laws. It is now upside down. We have too many men in positions of power to not only corrupt existing laws, but to create even more laws that regulate the individual rather than protect his/her liberty and self determination.
      We are nearing the point of insufferability, an armed populace not only keeps this point in check, but is ready to change it when it does.

    • Comment Link RSollazzo Thursday, 14 November 2013 12:48 posted by RSollazzo

      Did you know that the US government recently ended it moratorium on its use of domestic propaganda? Or how the Fairness Doctrine continues to be sought after as a bludgeon against the free speech? Surely the First Amendment is as mutable as the Second given the motion as it was proposed, directly impacting this websites ability to even debate the issue, let alone call it into question?

      Our free speech extends as far as burning the very flag representing this country and opting out of that antiquated Pledge of Allegiance, yet if the First Amendment were called into question as it has here in a poll, I'm pretty sure we could all predict the results. And yet, without the overarching protection- or dare I say threat -of the Second Amendment, you would not have a First.

      Then again, it's probably little more than an abstract concept to organizations receiving $445 million in government funding in order to maintain their audience.

    • Comment Link J Nelson Thursday, 14 November 2013 12:48 posted by J Nelson

      Well here's the thing. The 'right to keep and bear arms' is not given to us by the constitution or the US Federal Government. It is given to you by God, god, or if you prefer nature as the natural right of an individual to defend themselves. In other words it is inalienable. Any person that makes a claim that it 'has outlived it's usefulness' is a claim made by simple minded fools and political tyrants.

      Beyond this restricting the natural right to posses a weapon isn't even necessary on any level. By comparison to any other way do die you more than 5 times as likely to die by the CORRECT application of medical care than by gun. And this goes up beyond 10 times as likely if you filter out suicides.

      Of course it's likely that this will debate will come back to the issue of these 'so called' assault weapons. And as much as the people voting for this statement will disagree there is no logical reason to even consider banning weapons like this. The incidents involving them are so few and far between as to not even be worth considering. The obvious difference being that these incidents always get exceptional coverage when they happen.

    • Comment Link John Thursday, 14 November 2013 12:43 posted by John

      Thursday, 14 November 2013 12:16 posted by CJ

      ' 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.)'
      CJ- While I don't necessarily disagree with this, this wasn’t a problem until firearms safety was taken out of the classroom. Kids in the ’50s & ‘60s had basic firearms safety training and some schools actually had rifle teams, including schools in California.
      Today, you are allowed to purchase a firearm legally, without any training, information on the firearm, or care and feeding of said firearm. While not illegal, it is unwise. But as it is a constitutional right, not much can be done within the constraints of said constitution. We teach our children to be safe- how to be safe, where we need to be safe, who we can be safe with. But we do NOT teach our children how to be safe with tools- because a lot of parents don’t know how themselves or won’t take the time to do it. I see it as a failure of parenting.

    • Comment Link The Don Thursday, 14 November 2013 12:38 posted by The Don

      It is really simple. Everyone is entitled to their opinion. If you feel strongly that the Second Amendment is no longer applicable, then build a constituency, convene a Constitutional Convention, and change the Constitution. Otherwise, PLEAS SHUT UP!

    • Comment Link ZeNBowyer Thursday, 14 November 2013 12:38 posted by ZeNBowyer

      Today we need the 2nd Amendment more than ever-our bloated, corrupt, insolvent, cruel and tyrranical government is on the verge of turning our country upside-down, depriving us of liberties, freedoms, a quality of life unknown to the rest of the planet,
      You don't see the government disarming, do you? Our police look like para-military units, with military hardware,
      and with these huge FEMA prison camps erected around the country, what's that all about? And the NSA spying, recording and building files on every citizen in our country???
      How about the Federal Reserve? They write a sum of money on an electronic ledger, this suddenly becomes money, they loan this sum to us, the government, and we the people pay the Federal Reserve this money, and interests, yes, that's how it really works, and of course this name is confusing, "Federal Reserve," because there is nothing federal about it-these are the largest banks, the banking syndicate, that you owe all this money to, that control our money....
      Now having said all this, the writers of the Constitution fought this very situation in their day, they foresaw the citizens of this country having to fight these very same people to keep from being turned into slaves-THIS IS WHAT THE 2ND AMENDMENT IS ABOUT
      This government is armed to the teeth, if citizens allow themselves to be persuaded to give up this right (for the children, for your safety, etc.) we will fall
      ZeNBowyer

    • Comment Link James M Thursday, 14 November 2013 12:35 posted by James M

      The only legal way the government can revoke our Right to Bear Arms is by Constitutional Amendment.
      Look up the 18th and 21st Amendments to see what happened when an unpopular Amendment was made to the Constitution.

    • Comment Link Moses Lestz Thursday, 14 November 2013 12:34 posted by Moses Lestz

      It's not so much that any part of the Constitution has outlived its usefulness especially the right to bear arms. It is a proven fact that
      there is less violence in places where firearms are permitted although I don't expect any hard core Libtards to ever change their minds about anything because the core thinking is to scream & holler,ignore all adverse remarks made against your agenda and try and get as many dummies involved in the cause because if sheer numbers holler the loudest that means you win. It's alright though because I realize that the majority of Liberals have never been nor ever will be necessarily noted for their intelligence. I suppose it makes sense that if you can't be good at something then it should only stand to reason that one should devote all their time and effort into being the exact opposite. The age of the Liberals is about to come to an abrupt end.The people including yourselves see the writing upon the wall. It took some time but I think everyone is finally realizing that in the event of a revolution of any sort that many of you who support this type of agenda will be eradicated by such means as what you propose to deprive the people of their right to bear arms. The penalty for treason is hanging so I would propose that there be an agenda to make the possession of rope illegal as well. Thus we are now seeing the effects on society for allowing stupid people to breed.

    • Comment Link First Last Thursday, 14 November 2013 12:33 posted by First Last

      Human Rights are non-negotiable.

      Self-defense is a human right, and a Civil Right.

      Gun Control ALWAYS ends in confiscation, see history lessons for references.

    • Comment Link William Parizo Thursday, 14 November 2013 12:30 posted by William Parizo

      I'm a Vermonter and in OUR constitution it says it is not the Army or State Police's responsibility to protect me and my families, it is written clearly for everyone to understand that it is MY responsibility to do so. That is the way it should remain unless the Feds. & State can granitee our safety or be liable if they don't. THAT'S NOT GOING TO HAPPEN.

    • Comment Link El Wolhound Thursday, 14 November 2013 12:29 posted by El Wolhound

      If you have ANY doubts as to the current need for the protection of this amendment, please visit the Independent Journal website and do a search for "Knockout Game". Then tell me how viable police "protection" is in that situation.
      This nation is in its sharpest decline in public and civic morality ever in its history. The divisive politics and collapsing economy are taking their toll on this once proud republic. Morons on both side of the aisle, career minded sociopaths with no true usefulness to this world other than exchanging oxygen, have driven us to the point of collapse. The Fourth Estate has been annexed by the political machine and is nothing more than vapid talking heads regurgitating the approved propaganda of the day.

      If you haven't armed yourself at this point, you are an idiot and deserve everything you get.

    • Comment Link Michael Sterling Thursday, 14 November 2013 12:28 posted by Michael Sterling

      If a person approaches you and demands anything from you with the threat of physical force, how far away are the police for your safety and rescue? Why would anyone feel it acceptable to submit to such a thing with the possibility of their or their families life on the line? Would you give up your ability to protect them by giving up any legal means of self protection? The Constitution has enabled the common person to protect themselves at multiple levels. A citizen that is Law Abiding will not be the person that someone else should need to fear. A Law Abiding Citizen is someone that stands beside you to protect themselves and those around them from those that mean to abuse or do harm. Every person should have the right to protect themselves to the very best of their ability, and not live life in fear of those that would want to do them harm.
      Removing any of the Constitution reduces the individuals ability to have a full and fulfilling life.

    • Comment Link Gregg Thursday, 14 November 2013 12:25 posted by Gregg

      If you nullify the 2nd amendment there is nothing left to defend the 1st amendment. If the 1st amendment is then nullified this country will sink into a fascist state and the Constitution will be destroyed. At that point, history will again repeat itself like it has many times before.

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