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 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.

    • Comment Link Christeena Thursday, 14 November 2013 12:23 posted by Christeena

      When we are willing to give up our liberties for "protection," the government ceases to be By The People let alone, For The People. While the protection of society is paramount to the role of a government in that society, it must be made clear that the government is not an entity in and of itself that must be catered to.

      "...Armed citizens ensured the security of a free state in 1789," and at that time, it was a concern that those who pull the strings of a living government would oppress our citizens. "Today, the U.S. has a standing army and a well-trained police force that provide for our security and protection," but what do we have to protect ourselves against them?

      The values of our society have changed insignificantly enough: we still desire to speak what we want, when we want to. We still desire protection and safety. We still want and need our liberties, because that's what America is about. I don't think this is "a stubborn allegiance to the constitution." Tenants that we once held dear as a nation, continue to exist.

      "Technological advancements have created guns with capabilities far beyond those envisioned in 1789," which makes me wonder why the common American does not have access to things that could protect us from a heavily armed, oppressive government.

    • Comment Link rlemery Thursday, 14 November 2013 12:22 posted by rlemery

      Your absolutely right, all those killings and injuries each year, 96% of them committed by career criminals, gang members, suiciders, crazies and domestic violence abusers as identified by the US government are just horrible.

      So when are you anti gun nuts actually going to do something about those bad people instead of just persecuting the law abiding?

      See the govt and people went after drunk drivers, only punishing drunk drivers for their crimes, and geez, 2001-2011 there has been a reduction of -28% in deaths on US roads, all due to punishing the drunk drivers.

      Amazing how that concept works, punishing those actually responsible for comitting the crime.

      Why is it such a hard intellectual concept for you anti gun morons to understand?

      Isnt it just horrible how since 1960, Law Abiding US citizens have by armed self defense, prevented at least 1,131,788 murders and prevented at least 6,507,782 injuries, all based on publicly available US government data not one single anti gun nut has ever proven wrong or not to exist!

      By the way, how much money did that save the public by preventing an average of 136,421 total injuries a year?

      Oh wait, thats way more than the bad guys are harming, so since armed self defense saves more than just 1 life, and actually saves hundreds of thousands from injury, it is indeed justified.

      So explain again how the 2nd amendment is outdated as it saves an average of 136,421 people from injury per year?

    • Comment Link Dennis Thursday, 14 November 2013 12:20 posted by Dennis

      Ask the Native People how the Gubbermint Nanny State has treated them. I read every treaty that the government ever signed with the Native People and the government violated every one of them.

      Do you chowder heads think government will not run you over if you surrender your arms or support such a contention??? If you do you are in severe denial and as such you incapacity renders you ineligible to participate in meaningful and reasonable debate.

      The Bill of Rights did not give you squat, it reminds government of what is so precious to the individuals Natural Rights that no encroachment is permitted for any reason whatsoever. If you think that ends with hand held arms then you are ignorant of the fact that private ownership of canon was 10 times that of the Continental Navy during the revolution period. "Several Citizens of Boston owned half of the field artillery of the whole country at the outset of the Revolution. It was returned to them by a grateful nation by order of the legislature and command of the secretary of war Henry Knox. The verbose platitudes of the supreme court members is quite entertaining when discussing arms and their limit. they have been spoon fed the blather until they are but parrots of unreasonable decisions of earlier courts and have completely misinterpreted the ruling in "Miller".

      In reading the militia statutes they see only the minimum that each citizen was supposed to keep in their homes so they could be equipped to mount an armed resistance until the bulk of their forces could muster and gather the crew served weapons and form a barrier to invasion, raiding and tyranny. The very reason the "fine" is mentioned in the militia statute is to make it plain that if citizens did not keep the minimum they would be fined for failing to do so. Since none of the members of the court have ever been in the military, and their clerks who do the research and fed the judges the information have taken the time to research the factual basis for the right, the militia statutes and the intent of the Framing of the Amendment, they have made rulings completely devoid of any factual basis and thus cannot properly apply the law.

      I will guarantee you this, if the Framers would have experienced an armored vehicle raid with SWAT forces upon the citizens as we have experienced, the alarm would have been given and the attack repulsed with extreme prejudice, for the British Army was no more than the King's police in the colonies and the Swat type tactics are military exercises that have no place but upon the battlefield. A military action is just that if it is launched by a bunch of police who are already members of the government or actual Army personnel it makes no difference. So if the government is using the police to effect military raids then I say the Second Amendment is exactly the remedy for the acts of arbitrary government.

      So read the account of the trial of the British Soldiers who shot the citizens in Boston at the Boston Massacre. They were tried by a court and a jury not acquitted by some police organization and an administrative body. It was 12 men chosen by both sides and the soldiers faced execution for killing citizens. Do we have any such mechanisms in place today or they allowed to pass judgment on their own with little or no question??? And you have the gall to ask this question at all.....

      Your sniveling cowardess taints the air and you are not fit to be our countrymen or women if you cannot fathom the injustice e and the tyranny evident in our society today. You have been heeled as the dogs you are and you are not fit to exchange discourse with free men.

    • Comment Link Nick Thursday, 14 November 2013 12:17 posted by Nick

      Alan Dershowitz - has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.”

      Brb, trying to eliminate one of the most fundamental rights guaranteed by our constitution.

    • Comment Link Joseph Thursday, 14 November 2013 12:16 posted by Joseph

      The Problem Is That YOU FORGOT. The Right to bear arm
      is Intended to protect us from TYRANNY!

      Until The Government is NOT Corrupt we need this right...

    • 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.


    • 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...

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