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


    • Moderator Image

      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 CJ Thursday, 09 January 2014 02:51 posted by CJ

      To be honest, any anti-gun argument makes no logical sense. No matter how many numbers and statistics you put in to justify your opinion. You can look at numbers or how the past was, however its 2014. Alot different from the "musket days". Had our constitutions' second amendment not protected our right to bare arms and guns were completely illegal for civilian use, it would not make it safer and that seems to be the logic behind anti-gun opinions. Even if buying a firearm wasn't like buying smokes, guns will still be here in the wrong hands and innocents would still die as other countries who thought the same way have proven. Your telling me, you would rather have guns go complete blackmarket? Insanity.

    • Comment Link Martin Wednesday, 08 January 2014 22:34 posted by Martin

      I think it is ludicrous to suggest that fundamental human rights should be left to majority rule; Just as with civil rights, there must be a qualitative understanding of the rights you affect. I also think it is ludicrous that the room lost the connection between the advancement of all civil rights with the right to bear arms.

      No one mentioned the Battle of Athens in the late 40's??????

    • Comment Link Andrew Saturday, 04 January 2014 18:15 posted by Andrew

      Citizens today can't match the weaponry of their government. We don't have drones. We don't have briefcase nukes. 240 years ago we had muskets, and so did they. Our best weapon against the government is the vote and term limits. We should be "arming" ourselves against unregulated campaign finance, but as long as the corporate world and government shuttle people back & forth, we won't have a level playing field because corporate money will drive election results. But a well regulated militia won't improve that situation, and its contemporary members should make sure their government is tyrannizing them before them lest they commit illegal insurrection.

      Cities, counties, and states should be able to decide for themselves the kinds of local cultures they want, and that includes how to define self-defense and how to regulate guns. They can deal with the consequences as well. The Constitution has been amended in multitudinous ways, and other amendments are obviously obsolete--e.g. the 3rd (as Dershowitz notes).

      I'd like to see reliable research on the effect of conceal-carry rights, stand your ground rights, etc., on civil safety. How often are guns used successfully to protect or prevent versus how often do they cause an escalation of violence or an accidental death?

    • Comment Link derekvercher Tuesday, 31 December 2013 02:24 posted by derekvercher

      One of the most important benefits the American public has with their guns is it will keep the government from taking total advantage of it's citizens. History has taught us that government or stronger groups will always exploit those who can't defend them selves. That's one of the main reasons our founding fathers put it number two on the list. England didnt allow gun ownership as a result they did what ever they wanted. Right or wrong. All you people talk crap on guns and the right to own them. History is written by the gun. The gun is the reason you have freedom now. All of you tree hugging modern-day hippies think that with kindness and love the world will naturally be a better place. Wrong. Your thoughts and intentions are just and 100 percent correct on the way humanity should think feel and act. But we live in a savage world. Everything that has been taught to us in history class was written by the guy who kicked the other guys ass. LIVE FREE OR DIE

    • Comment Link Chau Monday, 23 December 2013 19:38 posted by Chau

      I think these politicians have outlived their usefulness

    • Comment Link Makuye Monday, 16 December 2013 15:52 posted by Makuye

      While not directly related to Constitutionality, there are a number of things about guns which are often missed:

      1. Guns are in no way natural, and gun practices such as market hunting have been instrumental in successful extinguishing of entire species.
      I suggest that humans with guns have been instrumental in killing and unbalancing native species, and worst of all, further divorced us from valuable experience with nature. Hunting for a few weeks a year, finger a-twitch is nothing whatsoever like experiencing the wild with curiosity in all seasons.

      2. It is clear from gunowner rhetoric, that they have an extraordinary fear of confrontation, disagreement, and exploitation by others should they NOT have a projectile weapon. Their confidence seems to be so completely externalized into their weapons, that they speak in continuously terrified terms about imagined confrontation and situation.
      It may well be that gunowners falsely believe that their lives are constantly in jeopardy from all strangers - itself a dangerous and false cognition.
      About 7.9 guns are owned by each gun owner, as an average.
      They are correct in presuming greater violence than non-gun owners: homicide, suicide, and accidental death together are 22 to 1 versus gun used in self defense.
      10 times as many people were shot and killed in argument in 2011 than by citizens attempting to stop a crime.

      3. Women and guns:
      About 80% of gunowners are male.
      In 2010, nearly 6 times more women were shot by husbands, boyfriends, and ex-partners than murdered by male strangers.
      • A woman's chances of being killed by her abuser increase more than 7 times if he has access to a gun.
      • One study found that women in states with higher gun ownership rates were 4.9 times more likely to be murdered by a gun than women in states with lower gun ownership rates.

      4. The presumption that amateur gun lovers/government fearers could defeat modern skilled professionals in police agencies or military is absurd.

      5. Guns do NOT promote civility! Gunowners are statistically far more impolite to others:
      Drivers who carry guns are 44% more likely than unarmed drivers to make obscene gestures at other motorists, and 77% more likely to follow them aggressively.
      In states with Stand Your Ground and other laws making it easier to shoot in self-defense, those policies have been linked to a 7 to 10% increase in homicides.
      People with more guns tend to kill more people—with guns. The states with the highest gun ownership rates have a gun murder rate 114% higher than those with the lowest gun ownership rates. Gun death rates tend to be higher in states with higher rates of gun ownership.
      Gun death rates are generally lower in states with restrictions such as assault-weapons bans or safe-storage requirements.
      A recent study looking at 30 years of homicide data in all 50 states found that for every one percent increase in a state's gun ownership rate, there is a nearly one percent increase in its firearm homicide rate.

      6. Finally for this comment:
      Mass shootings stopped by armed civilians in the past 30 years: 0
      Chances that a shooting at an ER involves guns taken from guards: 1 in 5

      Did you know that without European guns, Kamehameha would never have been able to unify Hawaii, and it would not then have been taken over through deceit by the US?

      Missionaries across the South Pacific gave guns for religious conversion, and these magical weapons were constantly asked & bargained for by North american native tribes, sometimes resulting in similar escalation.
      Everywhere, many people died because warfare had been symbolic with a very few killed or injured in North AmericaSouth Pacific/Oceania, and gun possession turned such rather minor disagreement into genocide, repeatedly.
      The Inuit peoples, who regarded an animal within spear range as giving itself as a gift of food, when obtaining guns, began killing everything they saw, as their cultural beliefs remained long past acquiring this weapon of mass destruction.

      Because of the complete divorce from nature and consequent loss of mental health in societies such as this one in which we attempt to function, the admittedly improbable cure for a great number of ills would be to eradicate guns from the face of the earth.

    • Comment Link Chris Wednesday, 04 December 2013 22:30 posted by Chris

      This is to Ryan-

      Intelligence squared is recorded in New York. Certainly you heard the audience cheering the Pro side all night.
      They did are not pushing an agenda, if they were, you would see a different national pie chart projected.

    • Comment Link Glockslinger Sunday, 01 December 2013 22:24 posted by Glockslinger

      What the organizers of this event obviously didn't take into account was the general bias of those at the venue participating in the vote. I did like the idea that the actual winner was declared by how many people's minds they could change, but this less proved the validity of the 2nd Amendment (or not) and became more about which orator was more persuasive. There's a reason why Alan is such a great lawyer! He's not right, but he sure can drive home a point.

    • Comment Link enubus Wednesday, 27 November 2013 18:29 posted by enubus

      Hitler, Mao and Stalin were the greatest gun control advocates of the 20th Century and how many people did they kill when their respective governments took all the guns from the people? Millions!!!

      As to Australia and England, the foolish people allowed their misguided governments to take their guns and in both countries home invasion robberies went up 1000%. In the US gun owners save lives from the bad guys 2 million times a year.

    • Comment Link Robert Wednesday, 27 November 2013 00:06 posted by Robert

      Obviously it is antiquated. The 2nd Amendment says "arms" not small arms or firearms and applied to cannons in that time. So today that would include heavy artillery, tanks and even tactical nukes. Which most people would think that's a bad idea to have.

    • Comment Link Vic Monday, 18 November 2013 16:36 posted by Vic

      I think the Freedom of Speech should be removed first. This poll shows that it has outlived its usefulness too. I assume you want to kill the entire Constitution, right?

      Vic

    • Comment Link Collins Monday, 18 November 2013 16:32 posted by Collins

      How can they avoid addressing the elephant in the room, given that the theme is about outliving the usefulness of the amendment: a 18th century muzzle loader has nothing to do with modern semi-automatic handguns or rifles. It's like likening the H-bomb to bombs working in air.

    • Comment Link Robert M Monday, 18 November 2013 12:35 posted by Robert M

      Dershowitz is correct when he states that the Second Amendment was put in place for the purpose of maintaining the right of rebellion. That is an inherent, natural right, one which still stands even today. The right of self-defense is also inherent and it includes the right to not only cast of tyranny but also to prevent it, just as it includes repelling an armed assailant. Dave Kopel is also correct, in that the general government has failed in keeping up the militias as defined in the Constitution.

    • Comment Link Don Monday, 18 November 2013 09:09 posted by Don

      You should retain the public poll results from before the debate for historical record.

      Here is a snapshot:

      http://truthaboutguns.zippykid.netdna-cdn.com/wp-content/uploads/2013/11/poll.jpg

    • Comment Link Aussie Monday, 18 November 2013 04:50 posted by Aussie

      In answer to Josh and so many others who forward the claim that guns don't kill ... Yeah they do. Of course it's the crazy aggressors who pull the trigger, but those nuts can be overpowered when they use knives and crossbows etc. which obviously is not the case with a gunman. Australia bought back guns off the underworld and madmen years ago, and hey ... what a surprise, guns are not widely available and we don't have senseless tragedies. They can be prevented. No one needs a gun.

    • Comment Link mtrphx Sunday, 17 November 2013 14:51 posted by mtrphx

      Getting an amendment of any kind for any reason is by design one very tough to reach goal. So frankly, I find this particular debate to be so over reaching as to make it moot from any viewpoint. On the other hand, the 2A does includes the words, "well regulated", and an exploration of just what that might mean seems well in order. Personally I find the NRA and it's hyper proponents childish white supremacists with all the sophistication of a 5 year old trowing a tantrum because mommy said no candy right now. Given is tiny size (3 million people in a nation with 310 million people) and it's stupidity to the point of shear lunacy it can and should be shunned and ignored. We as responsible and rational people need to provide them with the adult supervision they so clearly and desperately need.

    • Comment Link z.d. basso Saturday, 16 November 2013 13:40 posted by z.d. basso

      gee I knew there were lots of gun nuts, but this boggles the imagination. @zdbasso skewers right wing nuts and taliban politicians on a regular basis.
      pornographicpolitics.com where the thesis is that pornogrphic politics results in execrable economics…keep your powder dry gun nuts.

    • Comment Link Jeff Saturday, 16 November 2013 11:24 posted by Jeff

      So your tiny little voting panel voted for the motion to suspend the second amendment?

      Why the hell should I care what these northeast elitist political hacks think?

      Meanwhile, you have nearly 50,000 internet votes at the time I leave this comment, with 98% AGAINST repealing the second amendment.

      Again, why the hell should I care what your tiny little panel thinks, when they're so obviously outnumbered by common Americans?

    • Comment Link GB Saturday, 16 November 2013 05:47 posted by GB

      This Poll is pure biased anti gun Bullpucky.
      Its that simple.

    • Comment Link Matthew K Saturday, 16 November 2013 03:56 posted by Matthew K

      Wow, this debate seems to have pulled in a lot of paranoid people. I'm sorry to say guys, but your fantasies about fighting back against Obama and his fascist hordes has absolutely zero chance of occurring. Worse than these delusions though, they seem to be responding to an unrelated debate. There's an idea running through the comments that somehow the supreme court's previous decisions have some bearing on this debate, or that by being declared a right it is somehow absolute. It doesn't and it isn't. This was about whether or not the right to bear arms is relevant or useful, not whether or not it has been declared constitutional previously.

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