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


    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 IAN MACKENZIE Thursday, 14 November 2013 06:54 posted by IAN MACKENZIE


    • Comment Link Russ Hammond Thursday, 14 November 2013 06:49 posted by Russ Hammond

      read Warren versus the District of Columbia and that will show you that our only real protection is the second Amendment.

    • Comment Link James Buckler Thursday, 14 November 2013 06:30 posted by James Buckler

      " When the first amendment was drafted our forefathers intended that you had the right to speak your mind, write without fear of persecution, and right to assemble and speak at town hill (Town Crier). They never envisioned we would have phones, satellites, fax machines, televisions, internet, etc etc....Technology has increased so vastly in communications that there is no feasible means of regulating it.. So under this line of logic it has outlived it usefulness as well.....I'm personally not a huge fan of the idea that the only 1st amendment rights I would be entitled to are gathering at the Town Hall and yelling at the crowd, or writing my thoughts down on a piece of parchment paper with a turkey feather. " -James Buckler-

    • Comment Link tom Thursday, 14 November 2013 06:28 posted by tom

      I have to wonder about anyone who wants to abolish a constitutional right on grounds of it being dated. There are those in America that by their statements and actions regard the First Amendment as being obsolete. And you have elected and law enforcement officials who ignore the Fourth Amendment who view it as a impediment. Beware of anyone who wants to abolish the Second because it is a certainty they will not stop with just repealing the right to bear arms

    • Comment Link ben Thursday, 14 November 2013 06:26 posted by ben

      When the American people feel the 2nd has out lived usefulness people will stop buying guns. When a legislative body tries to pass a law banning or restricting guns and you see a surge in sales that says to me people feel the 2nd is still very important.

    • Comment Link Risky Whiskey Thursday, 14 November 2013 06:19 posted by Risky Whiskey

      Without the Second Amendment remaining intact....the other components of the Bill of Rights, the US constitution, the D of I etc. will be steadily and overtly legislated away from the people by a congress that is wholly owned and run by the elite and untouchable class of this country.

      Those who believe otherwise are sheep...those who rely on the sheep to do their dirty work for them and lean on their leftist elected officials to disarm America's citizens are the wolves. Those who maintain their arms, proficiency at arms, vigilance which comes with the responsibility of owning and carrying arms, and their sense of civic duty and patriotism in their willingness to use arms to protect the nation, the country and our sacred Constitution are sheepdogs.

      And THIS sheepdog will never allow a leftist-indoctrinated, atheist-leaning, statistics-manipulating, social experimenting liberal take his guns away.....EVER.

    • Comment Link cstehling Thursday, 14 November 2013 06:18 posted by cstehling

      The citizens of NY State have rejected Cuomo's gun grab, 52 of 62 counties and over 324 towns and cities have drafted and approved resolutions calling for the total repeal of the NY SAFE ACT.

      The NY SAFE ACT targets law abiding citizens and their legally purchased rifles and pistols. Rifles they have passed background checks to purchase.

      The NY Safe ACT does not target the mentally ill, criminals, parolees, and their illegal rifles and pistols. The criminals are still committing their crimes despite the NY SAFE ACT.

      NY STATE is spending hundreds millions of tax payer dollars it does not have (just like CA) to track law abiding citizens and their legally owned property, Property that poses no threat to anyone,


    • Comment Link tlawzero Thursday, 14 November 2013 05:41 posted by tlawzero

      Wow, lets clear up a few things. The founders knew weapon technology would advance. The musket was state of the art when the second amendment was writen.
      Who among you claims to have the right to tell me that I'm not free to own guns. We are NOT a democracy because democracies are inherently corrupt. 51% of the population does not get to tell 49% what to do. To take my right to do what I choose without proving it to take somone else's rights is tyranny. Those who are in the middle and for "some" regulation how is it that you claim to know what I need for my defence?
      Last, the second amendment is about militia. Who on the gun control side has the clairvoyance to say their will never be a need for Americans to take arms and for militia? And if that comes what invader will we successfuly repel with muskets. The bill of rights is a list of rules for our government to make sure the power remains with the people. The burden of proof to take my right to own a gun falls on those who wish to take them and my right to due process means it must be individually, in court, and you must prove it diminishes the rights of others. This is true even without the second amendment. Precedent set by tyrant's that have successfully taken other right is irrelevant.
      And as far as a well trained police force, I can defend myself faster, better and with certainty of purpose. So even if it was in their mandate to protect I still maintain the right to protect myself.

    • Comment Link Dennis Bowen Thursday, 14 November 2013 05:23 posted by Dennis Bowen

      If we give up our right to bear arms there will be more imboldened criminals walking the streets robbing and killing more people than ever!!!!! It is our inalienable right to keep and bear arms. We have a right to protect ourselves from enemies, both foreign and DOMESTIC!!!!

    • Comment Link Mike Wickerham Thursday, 14 November 2013 05:15 posted by Mike Wickerham

      David Roberts is so on the mark. What he stated is true, and there is nothing that I could add. Governments destroy liberty and kill people.

    • Comment Link Dennis Thursday, 14 November 2013 04:22 posted by Dennis

      our current administration proves that the 2nd amendment is not obsolete. our forefathers could see the possibilities of Obama type administrations and the need for citizens to be able to protect themselves.

    • Comment Link Gordon Thursday, 14 November 2013 03:55 posted by Gordon

      "Shall NOT be infringed." What is so hard to understand about that??? The Second Amendment protects All our Liberties. When will all the Sheeple get their heads out of their @$$es and understand that???

    • Comment Link Patrick Chester Thursday, 14 November 2013 03:47 posted by Patrick Chester

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

      You seem to be confusing civlization with domestication.

      The answer is no.

    • Comment Link David Beck-Brown Thursday, 14 November 2013 03:47 posted by David Beck-Brown

      The American Constitution is the only document that separates the USA for other nations. A Russian professor told me so, to daily fall to my knees and kiss our Constitution.

    • Comment Link Patrick Chester Thursday, 14 November 2013 03:43 posted by Patrick Chester

      David declared:
      "All of you gun nuts are morons. Try reading your constitution before talking about it so much. Or perhaps you don't understand the definition of "militia" and "well-regulated"..."

      Perhaps you should try reading and understanding the Constitution since "right of the PEOPLE to keep and bear arms SHALL NOT BE INFRINGED" is not limited to membership in a militia.


      As for the proposal, I find it interesting that the "For" part presumes that our rights are limited to technology available at the time the Constitution was ratified and that new technology makes those rights somehow obsolete. Leads me to wonder what else is going to be considered "far beyond those considered" back in 1789?

      (Like, oh, I'm not using a quill pen to write this and it will definitely travel across the world faster than horseback or sailing vessel.)

    • Comment Link CLEO Thursday, 14 November 2013 03:13 posted by CLEO

      Against the motion. Who ever thinks all you need to do is dial emergency services for everything in life is purely moronic.

      If you dial for a ambu to arrive, that would take 3-4 minutes, but a victim could be dead in 1, but could be revived and sustained with cpr, wouldn't you do so?

      It takes us more then 4 minutes to arrive to any call ranging from domestic violence to b&e, Local Law Enforcement, can not arrive soon enough to do much. We arrive after a fact. So you must call for us, but there is no vetted guarantee or arrival to put down deadly threats like home invaders, rapist/murders, and so forth. Ask ANY real good cop, and we will tell you. Learn to harden your home, and own a fire arm and practice dearly at the range more then once a month. Take proper security actions to secure your home. I rather have any competent law abiding citizen, owning a fire arm, capable to defend themselves from a single break in, to a handful of gang members, whatever it takes to keep yourself alive, and your loved ones.

      People who often make these kind of sites and or debates seldom deal with the over flow of violent individuals from south of the border, or the threats born and raised everyday in our cities. The fairy tale good life kind of folks who start this kind of initiatives, usually live in cleaner or better areas, and tend to be of elevated seat in elected places. OR, entites from across the nation who live in cleaner safer places. They rarely actually live in crime riddled areas, the likes we call our working AO.

      I pray in fact, that all these useless hindering laws that only impact Law Abiding Citizens, get taken down. And more freedoms are restored to the people. But who am I kidding? This nation which I oathed on two occasions to serve, and protect. Has become something I am disgusted with. "Ruled" by folks with bespoke suits, fancy cars, who live in far off clean neighborhoods, detached and removed from everyday folks for whom this country is made majority wise of.

    • Comment Link Dave Thursday, 14 November 2013 03:11 posted by Dave

      Posted by Mike Barkley Friday, 08 November 2013 03:47

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

      If you're looking for a more "civil" society, then you would be better off supporting legislature that requires everyone to carry a sidearm. Much like Feudal Japan, people are more prone to mind their manners, let alone commit violent crimes, for concern of swift and harsh punishment over even the slightest transgression.

      This proves out each time my wife goes shopping without me. People are much more willing to be rude to her, even though she's a lovely, petite, polite, and patient shopper. Yet, when my 6 foot 3 inch, 300 pound self isn't with her, people won't move their carts out of the middle of the isle as quickly (if at all) as when I'm there. Employees tend to glare, or roll their eyes at her when she's alone, but with me there it's all smiles and "yes sir".

      Your Utopian idea for the gun situation is like the ideas that speed limits and driver side airbags are the best way to improve driver safety. Speed limits are about generating revenue, and if Big Brother really wanted people to stop tailgating, texting, eating, etc, and pay attention to the road, they would pull out airbags from the center of the steering wheel, then weld a machete so it sits about two inches from the middle of the drivers chest. THAT will have everyone driving safely, respectfully, and alert at all times.

    • Comment Link Bill Thursday, 14 November 2013 02:44 posted by Bill

      Check your facts, murder by gun is down. The most picked on places are "GUN FREE ZONES" If guns are bad, why did OBAMA administration provide them to CARTELS in "fast and furious" and to his BROTHERHOOD in Syria and Egypt. OH yes, arm them (the terrorists) and disarm us and lets see what happens....

    • Comment Link Paolo Rossi Thursday, 14 November 2013 02:41 posted by Paolo Rossi

      Which part of "Shall not be infringed" is hard to comprehend?

    • Comment Link Dave Thursday, 14 November 2013 02:41 posted by Dave

      A gun no more causes murder and mayhem than a bottle of beer causes alcoholism. It's the human that causes the misuse and makes the choices. Our current legal and punishment system has softened so much that it's less of a deterrent to offenders. We've raised a generation of irresponsible "it's-somebody-elses-fault or some-other-dude-did-it" generation. The Progressive Liberal Socialist Ruling Class wants to disarm all the independent, free-thinking, self-suficient Americans so there is no one left to stand in their way as they dismantle our freedoms and choices one by one.

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