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 Scott Wednesday, 13 November 2013 22:45 posted by Scott

      Simply put, "Shall Not Be Infringed"! The most clear and concise amendment in the Bill of Rights!

    • Comment Link Jeff. Wednesday, 13 November 2013 22:44 posted by Jeff.

      While ALL RIGHTS must be protected, the reason that this one carries such weight is that most of the countries that initiated gun control laws and confiscated weapons at one point or another were attacked by outside forces because the military was unable to adequately protect them. In most cases wars have been won not only by the military but by the citizens of that country standing up and taking the initiative to fight for it. It isn't that gun ownership is that major of a thing, but it is when the constitutionally given rights are usurped by one group. I do not own a weapon at this time, (except for a very ugly face), and I am not likely to get one soon but I will use whatever action is required to defend ALL of our rights! This Poll gives the erroneous impression that this right is not important!

    • Comment Link Arnold Taylor Wednesday, 13 November 2013 22:41 posted by Arnold Taylor

      The American People deserve better Leaders in the White House than we have at the present time. Our present Leaders are determined to disarm the American People.!!!!! As previously stated; The American People had better Wake-Up and unite to KEEP AND BEAR ARMS.!!!!!!!!!!!!!!!!!!!!!

    • Comment Link Daniel Wednesday, 13 November 2013 22:40 posted by Daniel


    • Comment Link Buck Redstone Wednesday, 13 November 2013 22:38 posted by Buck Redstone

      We must remain ever vigilant as the forces of darkness and oppression would have only the police and military, under their total control, posses a monopoly on violence. Apparently they think it worked for the good in Germany, China, Cambodia and the Soviet Union. I recommend David Codrea's The War on Guns and Mike Vanderboegh's Sipsey Street Irregulars to stay abreast of the progressive collectivist and National Socialist attempts to march US backward in time.

    • Comment Link guy Wednesday, 13 November 2013 22:36 posted by guy

      ill try to bee perlite keep your hands off the constitution and our rights garneted there in Not one word of the constitution is our dated unless its because some one what too take those rights away thus putting them in the wrong and breaking constitutional law. positions like most of those now serving seem to have like Obama and agenda of taking our rights that have been fought and bleed for this is still in my opinion nation of laws and rights and is still a christen nation . even thought threatened from with out and with in. there are many on both side of the fence who ime sure have served this country and fought honorably for it and to defend its constitution and religious rights . but too those who want to see this nation fall . who want too take our rights to disarm the people of this country making it easyer for terrest and others to come on and take over. I don't think so you can have my guy bullets first as to taking our reglius beliefs I think you will find that isn't as easy as threating this country or its people. .If you don't like us leave us alone if you don't like it here your free to leave Ime an American and christen and proud of both so guess what you can do with the rest congress senet keep your hands off the constitution you swore to up hold and defend not tari apart or destroy .

    • Comment Link Virginia Duncan Wednesday, 13 November 2013 22:35 posted by Virginia Duncan

      The construct of the Government of the United States has four branches of government ... not three: 1.) The People (have the power to vote in representatives, find facts in criminal trials as the jury and to nullify bad laws as a jury and to find facts in civil trials as a jury). So, The People are the foundation element of the use Government ... for no other element of government has any authority without The People's vote, The second amendment is a "balance of power" element of the US Constitution to ensure the three subordinate branches of government do not usurp their power and over ride any of the Voting powers or Fact finding powers or nullifying powers or the right to bear arms or any or all of The People. The subordinate branches of government are without the authority to infringe on ANY of the express powers of The People for they have no authority beyond those powers expressly provided for them by the US Constitution and The People; thus no gun control law that is not voted on by the people is actually legal and therefor can not be infringed upon. None of the US gun control laws have been authorized by The People and none of them are legal; the commerce clause did not grant any powers over firearms to the Federal government. 2.) the executive office simply enforces the Constitutional laws ONLY that are passed by Congress and signed into law by the executive office and to defend the US from foreign powers and domestic crime(s). 3.) Congress has the power to pass laws and to pass fund laws and impeach a bad president and nothing else ... it totally lacks the power to infringe on the 2nd Amendment without regard to the number of them that "vote" on a gun law. 4.) The US S.Ct. has the power to nullify unconstitutional law(s) and to find fact(s) if a party waives their right to a trial by jury and nothing else; they have NO right nor power to form laws from the bench ... and they have no power to change "Due Process of Law" as the standard of a criminal trial to "A fair trial" ... they have usurped their powers in this area of law grossly. Then the States have certain rights but the rights of the State are limited ... they must provide the same protection or more protection but can not supply less protection of Federal Rights then the Federal system does; and, the States grossly usurper their powers here also with standards in criminal trials like "adequate" counsel and a "fair trial" which are rubbery stretchy terms that the found fathers were too wise to grant the States or the Courts such powers. The constitutional standard is Due Process of Law and all criminal trials wherein the Prosecution violated the express provisions of the laws having jurisdiction are null and void ... yet this fundamental foundation of law is violated daily and our prisons are filled with the actually innocent (about 40% of all US Convictions are without physical evidence of a crime and in conjunction with violated laws by the Prosecution). Now ... the Public Employee Associations (unions ... ie Big Labor) Are NOT elements of the US Government and they are totally without authority to lobby for gun control laws and forced union dues and massive power grabs of that kind. They are the enemies within that the founding fathers warned us about!!! and all those that act with them. The word is treason. Support your "Oath Keepers."

    • Comment Link Lonnie Wednesday, 13 November 2013 22:35 posted by Lonnie

      The 2nd amendment wasn't made with the thought of muskets or a lack in an advancement in arms lest they would have made sure as they warned us with what government would do if we did not keep it in check they would have warned us about arms. Instead they did not knowing that if the people needed to rise against the government again they would need to be on equal grounds just as they needed to be. If they would have not had muskets and instead only swords to fight the Kings men would we be free today? So imagine if our government left us with muskets vs their "assault weapons"...

    • Comment Link Bob Hoffman Wednesday, 13 November 2013 22:34 posted by Bob Hoffman

      The name of this site is an absolute oxymoron--You people do not POSSESS ANY "intelligence!" Trashing the Second Amendment, USING the First, which has been PROTECTED BY the Second Amendment, pretty much from DAY ONE of our nation's birth.

    • Comment Link Colleen Betsinger Wednesday, 13 November 2013 22:32 posted by Colleen Betsinger

      Guns are not the problem. It is the idiot behind the gun. Gun Control will not work. Guns are banned in the United Kingdom. But not having guns has not stopped the killing. You can still get guns. Back ground checks are needed the NRA has always supported it. Our forefathers knew what they were doing when they wrote our Constitution. The Bill of Rights was to protect us from our own government. Smart men. We need to stand together when it comes to this present government. Remember in 1890 our government wanted the Indians to turn over their guns and they did .The Government at the time killed 290 men, women and children. Sandy Hook was not the worst shooting in American History. Above all we need to be aware at all times what Barry Soetoro Obama is doing. He is a traitor and guilty of high crimes and misdemeanors!!

    • Comment Link Jeff Eneix Wednesday, 13 November 2013 22:31 posted by Jeff Eneix

      Leave. The second amendment alone fool!

    • Comment Link Bernard L Wednesday, 13 November 2013 22:31 posted by Bernard L

      What about a more important issue? The one that led to this. Our government officials need to take a look at how the government was designed to work. (ie. Balance of control) If all the stupid idiots in office would wake up and control Obama (which they HAVE the power to do) We would not even be talking about this issue.

    • Comment Link Enoc Wednesday, 13 November 2013 22:29 posted by Enoc

      The 2nd amendment is needed MORE now than even. Look at the government that we have now, communist/socialist.

    • Comment Link Theoritically Sound Wednesday, 13 November 2013 22:27 posted by Theoritically Sound

      Change this "debate" to read: "The Constitutional Right To Free Speech Has Outlived Its Usefulness" and see where it gets you?

      How about: "The constitutional right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures has outlived its usefulness"

      You people crack me up. You ALWAYS go straight to the second, wanting to bend it, tweak it, ban it. You NEVER say that about any of the other rights! I wonder why?

      “Firearms stand next in importance to the constitution itself. They are the American people's liberty teeth and keystone under independence… from the hour the Pilgrims landed to the present day, events, occurences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable… the very atmosphere of firearms anywhere restrains evil interference — they deserve a place of honor with all that's good.”
      ― George Washington

    • Comment Link Kate Wednesday, 13 November 2013 22:26 posted by Kate

      As long as there are rapists, murderers, gang bangers, and greedy politicians, guns will always have a place in society and my home will always have at least one.

    • Comment Link Rick Brown Wednesday, 13 November 2013 22:25 posted by Rick Brown

      We all know what it was intended for.

    • Comment Link Dawes Wednesday, 13 November 2013 22:23 posted by Dawes

      Apparently, the intelligence at Intelligence2 has outlived it's usefulness. Find another job.

    • Comment Link Norm Brown Wednesday, 13 November 2013 22:22 posted by Norm Brown

      Anyone that proposes cun control or changes to the Constitution should be charged with Treason.

    • Comment Link Sal Wednesday, 13 November 2013 22:22 posted by Sal

      There are those that say the 2nd Amendment is antiquated and it was established in the Colonial days of muskets and muzzle loaders. That today's modern government is so well armed with high tech weaponry that an armed militia with small arms would be meaningless to stand up to the tyranny of govt. Thus the second Amendment is no longer valid. Yet if we take a quick look at our most recent history, armed militias have played a fundamental role in many unfair conflicts. With any degree of basic intellect we soon realize that is not so. In 1776 the British considered the US Colonial militias as a rag-tag bunch of farmers that really posed no significant threat to the well organized British forces. Yet the skilled marksman and hunters of Colonial America led by George Washington proved otherwise, We know how that turned out. During World War II the Resistance served, Guerrilla fighters in Vietnam, the Mujahideen in Afghanistan, some examples of how simple citizenry with a base of small arms and training were able to rise and play a pivotal role in wars against overwhelming odds. Do not underestimate the power of an armed people. The 2nd Amendment is alive and well and MUST be protected from those that do not have the appreciation of the true meaning of liberty.

    • Comment Link Jose Wednesday, 13 November 2013 22:20 posted by Jose

      Actually there are dozens of countries with strict gun control laws and homicide rates many times that of the U.S. According to the FBI's Uniform Crime Report, the white homicide rate in the U.S. is just slightly above the European countries as a whole, and lower than many individual European countries.

      We have major cultural problems with segments of American society. We need to focus our efforts on those communities,.

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