The Constitutional Right To Bear Arms Has Outlived Its Usefulness

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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


    Alan Dershowitz

    Professor of Law, Harvard Law School

  • levinson sanford  90pix


    Sanford Levinson

    Professor of Law and of Government, University of Texas

  • Kopel official 90


    David Kopel

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

  • volokh eugene90


    Eugene Volokh

    Professor of Law, UCLA School of Law

    • Moderator Image


      John Donvan

      Author & Correspondent for ABC News

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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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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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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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    • Comment Link Billy Wyatt Thursday, 14 November 2013 18:22 posted by Billy Wyatt

      Washington Is STUPID. I am a simple welder and I know more and understand more than these stupid idiots. I live 14 miles from the nearest red light anbd protecting my family is a fundamental right and NO congress should ever consider taking this right away from me.

    • Comment Link Alan Mann Thursday, 14 November 2013 17:43 posted by Alan Mann

      Having been a member of a "standing army" and a 35 year career law enforcement officer, there is now way I would trust my life, the lives of my family and friends and my property to any "standing army" or a "well trained police force." Although the vast majority of the members of both are professional and have character and integrity, there are enough mediocre members in both to shoot down that notion. Members who should not be in either function. On top of that there are enough who are only there protecting their jobs and who would do whatever told even if it is illegal in order to preserve their jobs. That would include disarming the law-abiding citizens of this great country. Never put your lives and property and freedom in the hands of anyone, preserve our constitution, especially the 2nd Amendment, without which the others would be indefensible.

    • Comment Link Dave Weaver Thursday, 14 November 2013 17:38 posted by Dave Weaver

      The first two amendments to the US Constitution were placed one and two for a reason. The first, assures our right to speak out against government tyranny, the second, the right to remain able to back up our speech.

      Now, more than any time in my memory, is the 2nd amendment more important than ever.

    • Comment Link Jack Liberty Thursday, 14 November 2013 17:16 posted by Jack Liberty

      There are a lot of fools out there that would take all of our Constitutional rights they need to move to China then they would not have to change anything

    • Comment Link Chip Thursday, 14 November 2013 17:16 posted by Chip

      Not exactly sure this will be a 'debate'. The polling as of this moment has 2% in favor of removing/limiting the 2nd Amendment.

      More specifically, the Panel that has to argue for the right being outdated have a nearly impossible task ahead of them.

      It will be exciting to see what happens!

    • Comment Link Andy Hutton Thursday, 14 November 2013 17:11 posted by Andy Hutton

      If you want to see how relevant the Second Amendment is, try taking it away.

      As for whether it has out-lived its usefulness, tell me: has something made the possibility of tyrannical government impossible forevermore?

    • Comment Link CommonSense Thursday, 14 November 2013 17:09 posted by CommonSense

      From its passage and until the late 20th century, the 2nd Amendment to the constitution was interpreted to protect the rights of states to maintain militias and for militiamen to sustain arsenals. In the early years of our country, there was no standing federal army (the founders were afraid of a national standing army consolidating power) and the states were expected to sustain a state militia in order to contribute to the national defense; this expectation necessitated protections for militias that would facilitate militiamen keeping weapons for their service.

      The 2nd amendment was predicated upon the maintenance of state militias—something that has become irrelevant in the face of our federal armed services—and is not something that should have allowed individuals to claim the right to own weapons. State militias had the right to bear arms, but individual, unattached Americans had no such right—this distinction in the difference between the 2nd Amendment being a collective right or an individual right.

    • Comment Link alanstorm Thursday, 14 November 2013 16:50 posted by alanstorm

      "Today, the U.S. has a standing army and a well-trained police force that provide for our security and protection."

      The "FOR" position eviscerates itself right off the bat. Suppose that some of these forces are NOT used for our protection?

      Once you notice that this premise has no backing, their whole argument falls apart.

    • 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!

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