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 DAVID ALPERT Wednesday, 13 November 2013 22:18 posted by DAVID ALPERT

      Saying the Second Amendment is outdated and only pertained to (Muskets), is like saying the First Amendment Outdated and only pertained to (OLD ENGLISH) ! Only Crazy, Nut Job, Liberals Commit Mass Shootings; of Innocent women and children. Police carry guns for their personal protection, not the publics protection. They show up after the fact and you are dead to fill out the report! Do the names (Sharon Tate) or (Nicole Brown Simpson) ring any bells… I sleep well at night with a loaded 8 shot 12 gage pump shot gun next to the bed…

    • Comment Link Chuck Wednesday, 13 November 2013 22:15 posted by Chuck

      The US Supreme Court has made it clear that the police are NOT required to protect the citizens of the communities they serve except under any of the following conditions:
      1) you are entrusted into their care for transportation,
      2) you are placed under arrest, or
      3) you are in their jail or correctional facility.

      Additionally, the US Supreme Court has clearly identified what the job of law enforcement is: to investigate crimes and make arrests. In other words, law enforcement is only required to be a reactive force.

      Many law enforcement agencies have taken upon themselves to try and be a proactive force, however, it is impossible for them to be 100% proactive since they cannot physically or financially be everywhere all the time.

      Also, the firearm that is carried by law enforcement is meant to be a means for them to protect themselves.

      Should the military be called into action to aid law enforcement in the "security" of the country as suggested by this proposed change, it would strip our country of its freedoms by placing our nation into a state of martial law.

      Now on a Constitutional level, if the 2nd Amendment would be determined to be "outdated", what would stop the rest of the Bill of Rights from being cast as "outdated"?

      Now, let's look at some numbers:

      The United States is #1 in the world in gun ownership at a rate of 88 firearms per 100 people. However, it is not #1 when it comes to murders.

      In 2010, Great Britain, where there is an outright ban on firearms of any kind, had over 2000 violent crimes per 100,000 people. This same year, the United States saw about 450 violent crimes per 100,000 people. Why is this? Simply put, the criminals know they have the advantage and power with an unarmed public.

      The city of Kennesaw, Georgia, a suburb of Atlanta, passed a city ordinance in 1982 requiring every home to have a firearm in it. They did not see an increase in violent crime. As a matter of fact, they saw a dramatic decrease.

      This statement is very true: firearms equalize unequals.

    • Comment Link Bob DeCamp Wednesday, 13 November 2013 22:15 posted by Bob DeCamp

      I am not in favor of this motion. I am altogether against any further denigration of the Constitution. In fact I favor the end of all regulations that have been set in place that conflict with our Constitutional liberty and freedom.

    • Comment Link JQ Public Wednesday, 13 November 2013 22:14 posted by JQ Public

      You can trust this oligarch/NSA run government if you want to, but don't you dare try and take away the rights of others who see more clearly what you don't.

      Those who oppose the right to keep and bear arms is just about to find it's true value.

      This nation is about to go up in flames, and people who cannot, or will not defend it from the tide of oppression that is rising, are worthless.

      Liberty and freedom have a price, and we'll all soon be required to anty up.

      The oppressors are here, and they've had half a century to prepare their plans.

      Your idea of 'safety' is not worth one person's liberty, much less a whole nation's.

      I hope you read the pie chart real closely, and see just how 'in the wrong' you are.

    • Comment Link jason stowe Wednesday, 13 November 2013 22:12 posted by jason stowe

      Try and take mine

    • Comment Link Douglas J Patraw Wednesday, 13 November 2013 22:12 posted by Douglas J Patraw

      If guns are outlawed the outlaws will still have guns. Then how will we protect ourselves?DP

    • Comment Link Mike Rutowski Wednesday, 13 November 2013 22:10 posted by Mike Rutowski

      The 2nd Amendment has saved more lives then doctors. You are more likely to die from a doctor then you are getting shot. Pull your heads out of your asses. If you don't like guns then go live in Chicago, they have some of the strictest gun laws around.

    • Comment Link Rik Wednesday, 13 November 2013 22:09 posted by Rik

      Your message is totally bogus. Any well researched article proves that the 2nd amendment works
      your site is the square root of intelligence!
      It is a fundamental right of all free persons to have, keep and bear arms. As much to defend the country as defend from totalitarian DC.

    • Comment Link David Eickelmann Wednesday, 13 November 2013 22:09 posted by David Eickelmann

      Our murder rate is not dependent on, nor a consequence of, high firearms ownership.

      The Military and police do not provide for individual security.

      You get to form your own opinion. You don't get to form your own facts.

    • Comment Link Deanna Wednesday, 13 November 2013 22:09 posted by Deanna

      Home invasions are on the rise (at least in my state). You become an inconvenience & and a loose end that must be taken care of (i.e. they WILL kill you). If they take my stuff, that's one thing, but I ought to be able to defend myself and my family in my own damn home... My other guns are for hunting deer to eat. For some people, that is the only way they can afford to put meat on their table, and the way many have for decades in rural areas. The 2nd Amendment & responsible gun owners are not the real issue... As usual, it's politics getting in the way...

    • Comment Link trianglewhip Wednesday, 13 November 2013 22:08 posted by trianglewhip

      Go and outlaw the 2nd. Then you'll be doing in the rest. Stalin had a free speech paragraph in his constitution. And look what happened there. If you don't like the 2nd Amendment, you don't like the rest either. And if you are detained for any reason, you will love to have that 5th amendment as well.. All you so called progressives, the USA is not a place for you..

    • Comment Link Mike Abbott Wednesday, 13 November 2013 22:07 posted by Mike Abbott

      Its scary that anyone even feels compelled to have this "debate". There is a reason the 2nd amendment was the very SECOND Amendment. Not the 4th, 5th, 12th, ect. It is a vital safe guard of American liberties. Many on the left feign "ambiguousness" on the 2a...They suggest the ludicrious notion that 2a rights are limited to organized militas. One only has to briefly read the Federalist Papers if they want the real "intent" of the framers. If the 2a only applied to the military, why did the Govt not immediately begin confinscating arms from the colonists after the ratification in 1791? Its absurd and they know it, and if they dont know it, they need to re-take logic 101. All these obvious issues aside one must question the motives and intents of those wanting to disarm a people whose liberty has always rested on the ability to defend it. The idea of depriving over half of the American population of firearm rights because of the unlaw behaviour of a element of the population is unlawful, UnAmerican , unethical, and illogical. The left would do well to consider that many Americans will consider any direct effort to deprive Americans of firearms rights a direct infringement on the US Constitution and will respond accordingly.

    • Comment Link Jerry Wednesday, 13 November 2013 22:07 posted by Jerry

      The right to arms has not outlived its usefulness.
      Liberalism has failed and should be retired to the dust bin
      of history.

    • Comment Link Obrien Jamas Wednesday, 13 November 2013 22:05 posted by Obrien Jamas

      Not really much of a debate... To choose for your family to even potentially be victims of the criminal element seems indefensible in my view. As far as the military and police protecting us... The Supreme Court has determined that police have "no duty" to protect us. In fact, you don't have to go that far back in history to see the glaring evidence of this... The Rodney King rioting in Los Angeles resulted in at least 60 dead in a matter of days, in a very small geographic area. Hundreds of business were looted and burned to the ground, as mobs of malcontents and opportunistic criminals roamed the streets. Due to the danger to officers, the Los Angeles Police REFUSED to send officers in to some areas in response to citizen requests for assistance and advised the public of this. One of the hardest hit areas was Koreatown, where total devastation was only thwarted by ARMED civilians who defended themselves and their property (There is plenty of documentary video evidence from media outlets as well as amateur videotaping. The federal agency I was employed by at the time, surrounded its property in the riot zone with an army of armed officers, who successfully protected that property, while watching much of the surrounding private property go up in flames... Those officers were told to not intervene away from the federal property. If you really think you are safe and that these things cannot happen, you are deluding yourself.

    • Comment Link Cliff Steiger Wednesday, 13 November 2013 22:05 posted by Cliff Steiger

      It's very simple, protect the constitution. Rhe second amendment is no more outdated than the first, or third, fourth, fifth....the first ten were written at the same time. If you don't like guns. Dont buy one. Think about this though; If you are in danger, who do you call?.... someone with a gun.

    • Comment Link Dallas Neumiller Wednesday, 13 November 2013 22:04 posted by Dallas Neumiller

      We need personal firearms now more than ever, thanks to slower police reaction times and the proliferation of crime.

    • Comment Link cindy deaton Wednesday, 13 November 2013 22:04 posted by cindy deaton

      No, I do not agree, we have the right to bear arms,

    • Comment Link Daniel Harrigan Wednesday, 13 November 2013 22:04 posted by Daniel Harrigan

      You Progressives love to yell about Obamacare, "It's the law of the Land." The 2nd Amendment has been the law of the land since the 18th Century. Get over it! The only way you get any firearms away from me is when they are completely empty! Self Preservation is a God given right. No government has jurisdiction over natural God given rights,period! The 2nd amendment was devised to keep a future government who gets too oppressive, corrupt, tyrannical, starts to infringe on my right to self determination in check. Sound familiar?? I might lose, but I'll at least will have a fighting chance to keep my freedom. Molon Labe!!

    • Comment Link Steve Wednesday, 13 November 2013 22:02 posted by Steve

      Aside from the sheer silliness of this proposition, the best argument for public ownership of firearms is the tired, trite, and true . . . . . "when guns are outlawed, only outlaws will have guns."

    • Comment Link Jerry Wednesday, 13 November 2013 22:02 posted by Jerry

      "The social costs of widespread firearm distribution—foremost, the high murder rate in the U.S.—outweigh whatever degree of liberty gun ownership is seen to protect." - Why would the 2nd Amendment have become less appropriate when the murder rate in the U.S. has been in steady decline?

      "When the practical consequences of a right becomes counterproductive to society, it has outlived its usefulness." - This has not happened, and we should not abolish the codification of a natural right based on a highly flawed and debatable assertion. What is counterproductive to society are societal norms and government policies that breed crime.

      "While armed citizens ensured the security of a free state in 1789, personal guns are no longer a civilian’s main protection or democracy’s best safeguard. Today, the U.S. has a standing army and a well-trained police force that provide for our security and protection." - The standing army cannot, by law, be used for law enforcement, nor would we want it to. Our "well-trained" police are increasingly militarized, and are increasingly turning minor incidents into bloodbaths. In addition, the police have no constitutional or other legal obligations to protect citizens and cannot be sued for failing to do so. They seldom prevent violent crime - mostly they investigate the crime after the fact.

      When the values of society at large have significantly changed, a stubborn allegiance to the constitution should not blind us to the incompatibility of certain tenets with modern society. - Our rights, and human nature, have not changed. To give up our "stubborn allegiance to the constitution [sic] is to give up being a nation of laws in favor of a nation of men.

      Technological advancements have created guns with capabilities far beyond those envisioned in 1789, and the Second Amendment is not capable of regulating such arms. - One could easily make the same argument about the First Amendment and say that it only applies to white men in breeches, stockings and tricorn hats operating a hand-cranked printing press. Imagine the harm that occurs when a dangerous and incorrect idea makes its way around the world in mere seconds, thanks to the internet.

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