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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    601 comments

    • Comment Link Adam Anderson Friday, 15 November 2013 12:07 posted by Adam Anderson

      By the Same token we could argue the 1st amendment has outlived its usefulness.

    • Comment Link ATheoK Friday, 15 November 2013 11:54 posted by ATheoK

      I notice that many of the people 'for the motion' are cut and pasting a message from some nebulous anti-gun site. As always, the automatons are unable to think for themselves.

      The second amendment protects the rights of the individual! The whole concept of individual rights to self protection whether from others or from the government took many years to enable. For too many centuries, the ranks of civilians were treated as people with almost no rights. A freeborn person was immeasurably higher than an indentured serf or slave yet all three classes were not allowed to defend themselves! If a person of wealth or high breeding chose to slay a lowborn civilian there was not any recourse for that civilian's family.

      The American idea of an individual's right to self protection is not unique. What is unique is that the person's right is a fundamental right established at the constitutional level!

      Look around you; choose any part of the world. Have civilians enjoyed personal protection, life without fear, freedom of speech or freedom of belief for any great length of time? The blunt answer is no. The more extended answer is absolutely not! More countries around the word are tyrannical, despotic, socialistic or communistic that at any previous time in world history. These countries do NOT believe in freedom for individuals! They especially are afraid of citizens who might seek redress against government intrusions.

      At this time, even in the United States, the government is more intrusive, more given to abuse of power, abuse of criminal proceedings than at any previous time in our history. Our leaders are bending to the will of countries where so many Americans were maimed or killed fighting for Democracy! Less than a century has gone by and American anti's are trying to eliminate American rights to freedom and their ability to defend themselves.

      Demand your rights! Contend against any and all attempts to whittle away at our constitution and our freedoms!

    • Comment Link Darkseider Friday, 15 November 2013 11:25 posted by Darkseider

      So from what I see here there is a great deal of folks in favor of the doing away with the second amendment. Yet when the internet is polled it is 98% against it. The other thing I find interesting is that there are actual numbers of votes recorded for/against on the internet poll yet just a percentage for the pre and post debate poll. This is also somewhat misleading in my eyes. Just what the sample size actually is and also what is the target of the sample? Seems to me like this is not only lopsided but ill conceived as well.

    • Comment Link Paul Friday, 15 November 2013 10:45 posted by Paul

      To respond to Steve's absurd "science" (2028, 14 Nov), the UK definition of violent crime in his source is "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." The US source definition is "violent crime is composed of four offenses: murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault." Apples and pears, Steve. This is a totally meaningless comparison.

    • Comment Link dave Friday, 15 November 2013 10:33 posted by dave

      -back when the document was written, "well regulated" meant that the men practiced with their equipment and they were skilled. it did not mean being governed by additional laws.

      -semiautomatic firearms have been around for quite a while. lewis and clark had a 20 round semi automatic firearm when they explored the west.

    • Comment Link Josh Friday, 15 November 2013 10:18 posted by Josh

      Oh gee, wherever did the public poll results go?

    • Comment Link Josh Friday, 15 November 2013 10:15 posted by Josh

      If you wish for your debates to hold any relevance, you need to find a better way to surmise the "winning" side than polling a NYC audience, who will clearly be biased towards liberal issues. And I hardly thought that some of the arguments made last night were all that intelligent. Bring your pugilists into an online forum and see how they fare there. When you do that, send me an invitation.

    • Comment Link Guillermo Perez Friday, 15 November 2013 09:45 posted by Guillermo Perez

      Yes, because you know that the chances of something tyrannical happening again, is nothing more than impossible. After all, our military and police are all govt. employees. Just because we live in a "free" country does not mean that we are invincible to idiots that are power hungry and feel the need to push their agenda at the expense of the people who put them there. Besides, the facts that surround gun ownership prove that either nothing changes, or changes are made that ultimately save lives, it really makes no difference. I wish people would stop being juvenile about it. The state of Wisconsin has less restrictive gun laws than Illinois, do you see people shooting each other on the streets every time you cross the IL/WI border? No, you don't. STFU and stop pretending that you are one with reality.

    • Comment Link Jack Friday, 15 November 2013 09:43 posted by Jack

      Our 2A rights can be debated forever without any resolution. Similar to choosing a presidential candidate for office. One has only 2 choices...A or B. However, only 50% will agree with A and the other half will go with B. Every comment that is posted here is "missing" the real argument. Why are there mass killings taking place and what are their cause? How can it be guns? Why not crossbows? Why not knives? Any instrument in the hands of someone who wants to harm another human being can equal a mass killing if that person is angry enough. It really has no bearing on gun control! Guns are NOT the bad guy here. Why can't everyone see that?
      After WWII, there were several films released by Hollywood depicting soldiers in a war scenario...killing the enemy. These films were designed to evoke hate towards those who hurt the United States and their allies. It worked! Many young men joined the service to serve, but moreover to "pay back" the pain and fear brought on by the aggressors.
      This country and it's technology has moved far beyond that era and since has inundated the film industry, and computer gaming theater with gore and killing scenes that are far beyond anything that was projected during the Wars that the public was privy to. Parents are oblivious as to what children are looking at today on film and in a game (in the privacy of their rooms) away from supervision. I believe that film makers, game inventors and the media have all contributed to where we are as a society today. They have brought this to a reality check. Some individuals are extremely impressionable and can gain a feeling of "power" from these fantasy visual inputs because they are so "real". This industry has brought this on over the years going beyond what is necessary to sell their products to the masses. Their motto, "the more real things are portrayed, the better" It's all about the profits!
      Movie ratings??? Forget it! That is the biggest joke in Hollywood. Watching someone getting carved up, beat to death or blown up is now a way of marketing...there is no sensors. This has become the way of our society. How is it that we condone our teenagers to watch folks getting chainsawed, sliced and diced and literally ripped limb from limb JUST FOR ENTERTAINMENT??? Then we turn around and blame guns for all the hate and discontent going on in our country. Wake up America!!

    • Comment Link Jim Friday, 15 November 2013 09:03 posted by Jim

      The gun violence you speak of occurs largely in neighborhoods , where witnesses just happen to not see or hear anything. OUT OF FEAR because they are themselves are not allowed to protect themselves, because of gun control crusaders who's real intent is to keep guns out of the hands of minorities.

      They are typically rich white sophisticates that fear black people but simply disintegrate at the thought of a black person with a gun.

    • Comment Link Denru Friday, 15 November 2013 08:59 posted by Denru

      If you take away all the guns, gun violence may decrease but OTHER types of violence WILL increase. Limiting the type of firearm and capacity of ammunition does NOT limit the capacity of evil intent!

    • Comment Link William Friday, 15 November 2013 08:46 posted by William

      What I find interesting is that the people who are afraid the state will take away their guns and/or subjugate the population are the SAME people who want increased military spending and heavily armed police. If the state were to "come after" people, whom do they think would get sent? The Secretary of Agriculture?

    • Comment Link mike Friday, 15 November 2013 08:14 posted by mike

      The supreme court has said that the 2nd amendment guarantees the right of americans to own guns for self defense. So all you kitchen table law analysts can suck it.

      We have guns. You can't get them. You will die trying to take them from us. Have a nice day.

    • Comment Link Giovanni Cercone Friday, 15 November 2013 08:05 posted by Giovanni Cercone

      The 1st Amendment acknowledges your right to self-identity, and the ability to convey your ideas, or express your faith without fear of reprisal from government or group who's ideas may differ from your own.

      The 2nd Amendment acknowledges your right to self-preservation in times when you, the citizen face individual, groups, or government who's ideas not only differ from your own, but also when their attempts to reel you in is done by force or threat of life and limb.

      NOTE: A Militia is a gather of armed citizens who unite in order to fight a common enemy. It is not a professional army.

      To rebuke Mr. Marren's statement. The 2A most likely drew inspiration from the English Bill of Rights written in 1689. Read up on your history, enlighten yourself. The 2A was not written based on technology, but rather to acknowledge our right to self-defense. PERIOD.

    • Comment Link Al Miller Friday, 15 November 2013 08:04 posted by Al Miller

      Now everyone needs to vote for legislators then same as they vote on this issue and we will all regain our 2a rights.

      Online Voting Results
      2% for862 votes | 98% against46887 votes

    • Comment Link AllAmerican Friday, 15 November 2013 07:59 posted by AllAmerican

      The 1st Amendment acknowledges your right to self-identity, and the ability to convey your ideas, or express your faith without fear of reprisal from government or group who's ideas may differ from your own.

      The 2nd Amendment acknowledges your right to self-preservation in times when you, the citizen face individual, groups, or government who's ideas not only differ from your own, but also when their attempts to reel you in is done by force or threat of life and limb.

      NOTE: A Militia is a gather of armed citizens who unite in order to fight a common enemy. It is not a professional army.

      To rebuke Mr. Marren's statement. The 2A most likely drew inspiration from the English Bill of Rights written in 1689. Read up on your history, enlighten yourself. The 2A was not written based on technology, but rather to acknowledge our right to self-defense. PERIOD.

    • Comment Link Paul Friday, 15 November 2013 07:15 posted by Paul

      An excellent read that may help bring clarity to individuals from all perspectives regarding the "gun issue" in the US. "Bullets and Bravado: An American Dilemma" by Red Darling. Not sure if I can post a link here, but it follows if permitted:
      http://www.amazon.com/Bullets-Bravado-An-American-Dilemma/dp/1490365338

    • Comment Link Goldbaron Friday, 15 November 2013 06:09 posted by Goldbaron

      The right of the people to keep and bear arms SHALL NOT BE INFRINGED. What part of that is not understood? AND the fact it was ratified unanimously by ALL states. The day they take away our second amendment is the day we all need to sue the federal government over breach of contract. It is a signed document which for all intents and purposes IS a contract.

      "Every terrible implement of the soldier is the birthright of an American" - Tenche Coxe

      "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good." -George Washington

      "No freeman shall be debarred the use of arms." -Thomas Jefferson

      And to the liberal communists who hate guns... I believe this quote very appropriate applies to you:

      "He that cannot reason is a fool. He that will not is a bigot. He that dare not is a slave." -Andrew Carnegie

      Where gun registrations were mandatory, confiscation ALWAYS followed. Where confiscation occurred, GENOCIDE has followed. First thing Hitler did was call for gun registration. Second thing he did, was disarm the Jews.

      "Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?" -Patrick Henry

      "The great object is that every man be armed." -Patrick Henry

      "Those who invalidate reason ought seriously to consider whether they argue against reason with or without reason." -Ethan Allen

      And everyone that thinks we are safer without guns... Why aren't you living in downtown Chicago, hmmm? Or what about Washington DC? Those are a gun control nuts dream of a utopia, but they also rank among the highest for violent crimes. Also the supreme court ruled that law enforcement are not obligated to protect and serve the individuals, rather they are there to protect society as a whole. So they may or may not help you if you had an emergency, besides, can you really depend on someone else to show up with a gun that's minutes away when you might be dead or on the floor bleeding to death because you were attacked in your own home?

      Oh... And you know what? they made a movie about what happens when only the police and the government have guns... It's called Schindler's List.

    • Comment Link moe Friday, 15 November 2013 05:45 posted by moe

      people who want to alter or change are constitution are traitors to the republic. If you somehow think that taking guns away is going to do away with violent crime, then you are a total moron. Saying guns kill people is like saying spoons make people fat. Taking guns away from lawful citizens just makes us all helpless victims, because the criminals will still have guns! - dont fall for this garbage, guns keep people safe. And if you notice all these big gun shooting sprees are in gun free zones. They dont happen in gun zones because they would be shot dead before they could kill so many people. Dont change our constitution, change your country if you dont like our republic! We are one of the few countries that allows private gun ownership!

    • 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.

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