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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    602 comments

    • Comment Link Seth Kaplan Friday, 15 November 2013 05:00 posted by Seth Kaplan

      The unique aspect of the Constitution is that it can be changed. Framing the question this way also obscures the real issue, which is public health and safety. No one is saying that people can't collect guns as a hobby or use them for hunting, contests of skill, etc.

      And yet, the gun lobby and firearm extremists rest on their Constitutional "laurels." What amounts to tradition is mere laziness on their parts.

    • Comment Link Jack Rigg Friday, 15 November 2013 03:59 posted by Jack Rigg

      Notice that those that argue against the 2nd Amendment typically try to anachronize by comparing now to its origin, as though there's ONLY a stark 200 year contrast. Yet, much more recently than that the overwhelming majority of U.S. citizens were fine with the 2nd Amendment. So what's *really* "changed" and just WHEN has anything "really changed"?

      Those that try to "speak for" the Founding Fathers are just speaking out of place.

      As for the argument that weapons now are so much more "lethal", and that the military can dramatically trounce mere lay weapons anyway, that argument seems to be that they've ALREADY got us overpowered. If so, then perhaps citizens should have far more firepower available, rather than just continue a surrender.

      The "safety" pitches seem more along the lines of "there's really nothing 'safer' than a total police state… WHILE the country's police continue to 'militarize' quite a bit, now that you mention in. And concurrent with… some… repeatedly making such efforts to progressively DISarm everyone else. Bad timing.

    • Comment Link Sean Friday, 15 November 2013 03:26 posted by Sean

      NO Constitutional Amendment will ever "outlive its usefulness" unless the Constitution itself has "outlived its usefulness". At which point the entire country unravels even further than it already has. You don't get to pick and choose which rights you think should or should not be allowed. They are rights set forth at the founding of this governmental body, and if you are going to upturn them, then you are upturning the government as well.

    • Comment Link Suzanne Krause Friday, 15 November 2013 01:53 posted by Suzanne Krause

      Thomas Jefferson himself said that the Constitution is a living document and should be reviewed every 19 years (http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html, in a letter to James Madison). The Second Amendment certainly has not been reviewed for current applicability. Even the language of the Amendment is difficult to truly interpret centuries later; language, like society, evolves. At a minimum, an amendment to the Second (and many others, to be honest) is in order.

    • Comment Link Phillip Shurtleff Friday, 15 November 2013 00:58 posted by Phillip Shurtleff

      The irony of the Second Amendment is that we won't need it until it's no longer in place. It's not actually about firearms, especially when you consider that it says "right to bear arms," not "right to bear firearms." It's about the balance between the people and the government. That balance involves the process of argumentation.

      We are a nation built upon the concept of argumentation. Where reasoned debate is supposed to prevail. No matter what kind of relationship; marriage, business, governmental, friendship...., the process of exchanging ideas for the betterment of the relationship depends upon accepting a conclusion for the reasons given under one's own thoughtful and well informed consideration and free will. It is necessarily a free will process since accepting a conclusion under one's own free will eliminates the need for forceful enforcement and allows the idea to be explored under each individual's unique life conditions and the results fed back to improve the experiential base of society.

      As such, one may choose to remove themselves from the argumentation process for the most capricious of reasons. Without that ability the free will quality is lost. When a person removes his or her self from the argumentation process of a relationship, those still in the relationship can respond by isolating the person to some degree or completely: i.e. my religion, your religion, my nation, your nation, my lifestyle, your lifestyle, etc.... This is the most common reaction, we agree to disagree. Another response is to submit. Discard one's own needs and thoughts and simply comply. Often domineering people block the exchange of ideas so basic to argumentation with the goal of forcing submission to their objectives. Refuse to submit, can't isolate and can't engage in a reasoning process and domination becomes the only response. That's where the need for violence can come in. Whether it be a domestic partner defensing his or her physical self or a violent revolution by the people against a despotic government.

      Since there are a number of non-violent responses that can be used to topple a despotic government through non-cooperation, protest, and other methods, violence should be an option of extreme last resort but not completely eliminated. Mahatma Gandhi said "It is better to be violent, if there is violence in our hearts, than to put on the cloak of nonviolence to cover impotence." He also said "Among the many misdeeds of the British rule in India, history will look upon the act depriving a whole nation of arms as the blackest."
      (Source: http://www.brainyquote.com/quotes/authors/m/mahatma_gandhi.html)

      Adding from another source: "I do believe that, where there is only a choice between cowardice and violence, I would advise violence... I would rather have India resort to arms in order to defend her honour (sic) than that she should, in a cowardly manner, become or remain a helpless witness to her own dishonor," and "I have been repeating over and over again that he who cannot protect himself or his nearest and dearest or their honour by non-violently facing death may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden. He has no business to be the head of a family. He must either hide himself, or must rest content to live for ever in helplessness and be prepared to crawl like a worm at the bidding of a bully." (http://www.mkgandhi.org/nonviolence/phil8.htm)

      Given the much larger number of statements he made about non-violence what he's getting to, contrary to many a pacifist's claim, is that violence is an option, but only as an extreme last resort. Any non-violent action that will effectively achieve the goal is to be used rather than violence. Anti-gun people try to create the false dilemma that we must engage in rampant violence or be so totally non-violence that we engage in self imposed helplessness. Neither is an ethical option.


      The authors of our government structure understood that a government can't be isolated away for it's very nature is to regulate day to day affairs as well as national issues. If the power of the people to organize and forcefully dominate the government, outside the permission of the government, is removed then the only option the people have, should those in power capriciously cease the argumentation process or disregard the democratic process of our society, is to submit.

      The goal of disarming the people while not disarming the police or military is to remove from the people the power of domination should the government become despot or fall to a despotic invader. The right to bear arms is not any more obsolete than the right of the people regain control of a formerly democratic government, national or local, by force or to defend themselves with force against criminal force. The attack on the Second Amendment has little to do with violence since violence has been decreasing for several decades while the right to carry a handgun on one's person has increased. At best firearm ownership by responsible, law-abiding citizens contributes to a decrease in violent crime. At worst it has no significant effect either way. If the right to carry a firearm or have a firearm is not necessary for defending one's self against criminal violence or an oppressive government then those against firearm ownership should lead the way by disarming the police and military first. If that results in a drop in violence it will provide a solid ground for disarming the citizenry. I doubt if any anti-gun person believes that disarming the police and military would do anything except open to door to rogue nations invading at will and criminals engaging in violent crime with impunity.

      The fact, as our own civil war proved, that in order for a violent revolution to succeed the rebels must have a robust economic system of financing, manufacturing, information gathering and processing, and transportation to successfully overthrow a government. Since for every soldier in battle there is a small army of citizens supporting him with the manufacturing of food, arms, medical care, transport, equipment and running the rest of the supporting economic system to win that war, a rebellion in a democracy is unnecessary because if you have the people to support a rebellion, you have the people to create and win an election. Violent rebellion is only necessary after the democracy has been ended and non-violent methods won't work. The Second Amendment doesn't exist to keep democracy in place. It serves to re-establish it after it has ceased to exist.

      The true goal of those funding the anti-gun movement is to strip the people of self-determination and to impose a more despotic rule. If the whole of the citizenry are genuinely too stupid or animalistic to be trusted with the decision of when to use violence in self-defense and to have access to the weaponry necessary for that right, then certainly the more complicated issues of choosing the best leader, what action our nation should take, and understanding the science necessary for a good decision is well beyond what the citizenry can manage. That is a direct denial of the basic nature of democracy.

    • Comment Link Jason OConnor Friday, 15 November 2013 00:52 posted by Jason OConnor

      If you're not a gun person don't own a gun but you can't have mine. The funny part to me is that most anti gun people would become very pro gun if the unfortunate situation presents itself.

      True Story a little off topic: I rescued a pitbull, my wife wanted no part, Pits have a stigma, not in her house, I rescued her anyway. I'm a good Pitbull owner my dog is well trained, well socialized, well mannered. My friends two year old was hanging from my dogs neck and attempting to ride her like a pony...no issue. You're much more likely to run into an issue of being bitten by my neighbors Shih Tzu. One morning, dark, 5 am my wife is running with our dog and as she going through town there are a couple less than desirable looking individuals running their mouths that made my wife uncomfortable, sensing this our dog checked up, the hair on her back raised, and she growled raising her lip and displaying displeasure towards the individuals. Very quickly they changed their posturing, harassing comments and headed the other direction. When she got home her exact words to me were I'm so happy you made us adopt this dog and retold her story.

      Fact a responsible gun or animal owner is not your issue. You don't have to like or want either one. I certainly won't force you to have either, but when an unthinkable situation is upon you I'd rather be prepared and not have to use force than unprepared, possibly dead, or have a loved one lost.

      You don't want guns in schools with trained individuals, well when a elementary school teacher takes down a would be shooter and your kid was in that classroom you might change your tune about guns in the hands of trained individuals in schools. Just a thought, I prefer to not have guns in schools, but I also prefer my child come home.

      I saw something about Houston and Chicago, with surprising similar demographics regarding population, race of population annual household income etc...basically the same city, Houston a lot of gun owners, gun stores, gun carrying citizens Chicago no gun stores, no gun carrying citizens...Chicago homicides per 100k population 28.4 Houston 9.6. People that mean to do harm with firearms don't go to places where they know they are likely to be thwarted

    • Comment Link James Friday, 15 November 2013 00:50 posted by James

      Here is the fundamental flaw in this logic. The constitution, more specifically, the Bill of Rights, does not GIVE or GRANT any U.S. Citizen rights. The Bill of Rights (B.O.R.) actually prevents the government from taking what the framers referred to as "God Given Rights" from you. The B.O.R. does not say that you as an American Citizen, have the right to the freedom of speech, it say that you as an American Citizen are free from having the Government attempt to limit your speech. It does not say that you can Own a Firearm, it says the Government cannot take your firearms. This discussion is becoming ridiculous and redundant to say the least. The B.O.R. is essentially a list of stuff that you get to do because you were born, and the Government cannot prevent you from doing. That is it. DO NOT MESS WITH IT.

    • Comment Link Mark Friday, 15 November 2013 00:30 posted by Mark

      You really should familiarize yourself with the Supreme Courts ruling on D.C. vs. Heller before you try and start your so called intelligent debate. The Courts have stated, “The core lawful purpose of the Second Amendment is self-defense”, explaining that “The Founders understood the right to enable individuals to defend themselves ... the “right of self-preservation” as permitting a citizen to “repel” force by force when the intervention of society in his behalf, may be too late to prevent an injury”. Now seeing how the Same Court has stated that Law Enforcement has no Constitutional requirement to protect or defend Citizens I think it is needed more now than it ever has. Those of you screaming that Muskets are the only weapons covered by the 2nd Amendment I say to you read D.C. vs. Heller, again the Court has stated that the 2nd Amendment does in fact extend to “arms in common use of the time”. This doesn't mean weapons in common use “at that time”, meaning Muskets from the 18th Century. The Court said, “The idea that it would is frivolous and that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”. For your “Well Regulated” and “Militia” arguments, again the Supreme Court states in context, “it was clearly an individual right”. The operative clause of the 2nd Amendment is “The right of the people to keep and bear arms shall not be infringed”, which is used three times in the Bill of Rights. The Court explains that “All three of these instances unambiguously refer to individual rights, not collective rights, or rights that may be exercised only through participation in some corporate body”, adding “nowhere else in the Constitution does a right attributed to “the people” refer to anything other than an individual right”.

    • Comment Link Travis T Thursday, 14 November 2013 23:47 posted by Travis T

      Thursday, 14 November 2013 18:55 posted by Tom Marren

      The 2A is an anachronistic, as well as a misinterpreted document. It was written when all guns were single shot, barrel loaded and highly inaccurate except at very close range. It was written when many citizens of this country were living in a frontier environment. It was also written in a time when tyrants could be ousted from power at the end of a musket barrel. NONE of that holds true today! The intent of the amendment was to allow for gun ownership in support of a militia. Militias were necessary to provide for the security of the citizenry at a time when the federal government was incapable and unwilling to provide said security. Had the founding fathers foreseen automatic weapons with high capacity ammo clips that are highly accurate even at great distances being available to every person in the country common sense dictates that the 2A would never have been written. Those men were much more enlightened than the NRA and the rest of the gun toting cretins who invoke their dubious (at best) right to bear arms now. The facts are indisputable no matter what the NRA propaganda machine churns out and what their kool-aid drinking constituency believe. Countries that ban gun ownership are safer and houses that do not have weapons are also safer. PERIOD!

      Tom, quite frankly, YOUR comment is the most ignorant comment I've heard today. Militias were NOT formed to provide protection that the government was unable or unwilling to, they were formed to protect AGAINST that goverment, you moron. you speak like a well educated English professor; why don't you try brushing up on a little history. Any for another thing, why don't you tell me when the last time was that fully automatic weapons were readily available to every citizen? People like you should be put in a glass room to become a science project of the evolution of the modern day IDIOT.

    • Comment Link Sarah Thursday, 14 November 2013 23:34 posted by Sarah

      Against the motion.

    • Comment Link Jason Chapman Thursday, 14 November 2013 23:30 posted by Jason Chapman

      When people say that they need guns to protect them against the government they are really saying then need guns to shoot cops and the men and women who serve our country as soldiers. They are saying that the needs guns because they can no longer be patriots and that violence should trump the political process of our republic.

    • Comment Link Joe Freeman Thursday, 14 November 2013 23:22 posted by Joe Freeman

      Molon Labe.

    • Comment Link Robert Thursday, 14 November 2013 23:13 posted by Robert

      If you don't like the Constitution, to include the 2nd Amendment, then AMEND the Constitution to change it.

      In the meantime, leave us and our rights alone!

    • Comment Link larry rogers Thursday, 14 November 2013 23:07 posted by larry rogers

      against the motion

    • Comment Link Rich Grise Thursday, 14 November 2013 23:07 posted by Rich Grise

      People say, "Just a little regulation"

      That's the first step down the slippery slope to confiscation and eventual death camps.

      There can be no exceptions to the Constitution.

    • Comment Link Chris D Thursday, 14 November 2013 23:00 posted by Chris D

      Let's weed out the fallacies from both sides to start. To say that we will "slide down a slippery slope" by controlling firearms to the point where only governmental powers will have possession is an extreme hypothetical situation. Find a police department whose officers will personally go door-to-door collecting firearms and I'll tell you that you are a liar. One, the manpower required would be too demanding; Two the risk the officers would face is not worth their badge or their lives, they have families too. One the other side of the argument we cannot appeal to authority, simply because Holder, Obama, Pelosi, and Feinstein say guns are a scourge to our nation it does not make it gospel. Firearms provide responsible users with a means to defense, a means to survival, and a means of recreation. We cannot bring everyone back down to a level where everyone has a knife or a pointy stick as far as weapons go, someone, somewhere will build it better to stand off an attack. In my mind should something go bump in the night my pistol is a fairly good deterrent but nothing too shocking, my shotgun creates a little more pucker factor, however if I were to grab my AR-15 from the closet and point it at the assailant the intimidation factor is increased to the point where they will probably freeze or get lost in panic, now that I have them on the ground in soiled pants the police may collect them. Will I need all 30 rounds, probably not, but I'd rather have all of them and not need them, then have a single shot weapon that fails to fire and now my wife, my daughter, and myself are all at risk.

    • Comment Link Joe Thursday, 14 November 2013 22:51 posted by Joe

      I agree with William Molenda
      There isn't a time limit on the Constitution. There is a limit to the power of the federal gov. That is set in the Constitution, for a reason.
      There has been a system to teach firearm safety to civilian for almost a hundred years. It is called the Civilian Marksmanship Program. The NRA also has safety courses.
      My suggestion is to use them.
      A basic right we have is to defend our homes, and family. It is that simple.

    • Comment Link twinstick Thursday, 14 November 2013 22:29 posted by twinstick

      I only have two words to say about this.

      Molon Labe...

    • Comment Link Michael Thursday, 14 November 2013 22:15 posted by Michael

      Hey Steve,

      You've got it all wrong, mate. Violet offenses were defined differently in the UK vs. the US. The US definition is much more stringent ("murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault") than the UK definition ("Violent crime covers a wide range of offences, from minor assaults such as pushing and shoving that result in no physical harm through to serious incidents of wounding and murder"). So you can't compare the stats like you did. It's apples vs. oranges.

      If you compare the *homicide* rates in an apples vs. apples comparison, the rate in the US is 4.7 per 100,000 and it is about .9 per 100,000 in the UK, based on Table A4 of the data you referred to (http://www.ons.gov.uk/ons/dcp171778_296191.pdf). In other words, the US homicide rate is about 5x higher.

      Lesson learned 1: Be careful with your stats.
      Lesson learned 2: You're more likely to get killed in the US than the UK.
      Lesson people will never learn: These types of casual, cherry picked comparisons are almost always useless. The gun laws aren't the only things that are different between the US and UK. Attributing differences in the murder rates to the gun laws without controlling for these other differences is highly imprudent.

    • Comment Link Kirk Thursday, 14 November 2013 22:13 posted by Kirk

      The second protects the first, it's that simple. If we forget that and allow the 2nd to be take away the 1st will follow suit and we'll have ourselves to blame.

      Either you can repel tyranny or you can't. Those who can't are oppressed.

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