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 roy Saturday, 19 October 2013 13:25 posted by roy

      Lost in all the comments is PBS' bias in just asking the question that particular way. Similarly with the 04/23/13 'debate' there is an underlying premise never questioned and highly prejudicial. And by asking such a loaded, and politically biased question, PBS will likely get the (politically motivated) outcome it seeks.

      The panel is well chosen, and quite able to argue their positions. Yet the moderator, audience, broadcaster and initial debate question will necessarily skew audience take-aways towards a predetermined place.

      Agenda journalism at its finest.

    • Comment Link Peter Sly Monday, 30 September 2013 12:47 posted by Peter Sly

      As shown in this thread, polarization about the proper gun freedom/responsibility balance is severe. I hope that IQ squared is very careful about recruiting a truly undecided audience. Our civic health is undermined if we don't listen to each other on this and other contentious issues. A careful reading of the dissenting and majority opinions in Heller and McDonald shows how tentative our national policies are on the balance between gun rights and accountability to the community.
      Our elected federal representatives -- the servants of We The People ---- need to listen to all views and draw on national (rather than parochial) experience, to strike the appropriate balance between gun freedoms and responsibility to the community. Given the ease with which small weapons of war can be moved from state to state, there should be strictly enforced national rules that protect the most vulnerable communities-- our cities and suburbs. At a minimum, comprehensive background checks should be vigorously enforced. There is no way that 300 million guns could be confiscated, but also no rational basis for avoiding a national gun registry.

    • Comment Link Bill Boylan Monday, 30 September 2013 07:08 posted by Bill Boylan

      David, You are the moron and the one that should read and study the Constitution and history. Try reading the Heller decision. What is the militia but the whole body of the people? Jefferson or Madison, I forget which at the moment, Regulated in the sense that a clock would be regulated to operate in a smooth and coordinated fashion. Scalia; The 2nd A would mean exactly the same if the prefatory clause read, Because a well regulated milit1a is necessary for the security of a free state,

    • Comment Link Jerry Sunday, 29 September 2013 16:28 posted by Jerry

      David! perhaps you should read the constitution before talking about it. Perhaps you should go back to grammar school, seems you don't understand the definition of the "right of the people to keep and bear Arms".

    • Comment Link Randy Sunday, 29 September 2013 14:41 posted by Randy

      Dear David,

      Perhaps you should take a remedial reading class, before you go around calling other people morons.

      Had you actually read the quote of the 2nd amendment, you would notice the comma after the word 'state', before it goes on to say "the right of the people to keep and bear Arms, shall not be infringed."

      You miss two important things here, first the comma breaks up the sentence, with the first part being a preamble explaining the need for the 2nd part. Further, the last half of the sentence states the right of the 'people', and in you know, the people and not the militia.

    • Comment Link David S. Klang Sunday, 29 September 2013 14:13 posted by David S. Klang

      The Constitution does not grant these rights; it protects rights that already exist from Government usurpation. To say that any particular right has outlived its usefulness is to say that liberty itself has outlived its usefulness.

    • Comment Link Frank Sunday, 29 September 2013 10:00 posted by Frank

      @ David, Maybe you should try reading it better and stop calling people names. " A well regulated Militia, being necessary to the security of a free state" The militia was the people. In order for the militia to be well armed and ready in case they need to be called " the right of the PEOPLE to keep and bear arms shall not be infringed" Its real simple. We the people have the right, not We, the Govt. Again, just because your not competent to understand the Constitution does not mean you have a right to call us Morons. Maybe you should look in the mirror.

    • Comment Link Arthur Mazeau Sunday, 29 September 2013 08:38 posted by Arthur Mazeau

      For people that fail to see the situation in this country today as dangerously close to a people controlled by government rather than a government for and by the people is s serious mistake on their part. With the growing evidence of corporate "purchase" of legislators, to the everyday spying by the NSA, to the warrantless stops and searches by the NYPD in everyday life, this country has become a country run by the very few with wealth for the benefit for the same. The average working family sees and finds no ability to "reach" their legislators, because they do not hear anyone that is not also offering a cash handout. I get bombarded daily by politicians begging for money, help their campaign, so and so has raised more money for this, we need money to prevent that, and I get it from both sides. Without wealth, there is no voice for the people, without a voice there is no power to change the situation. The government fears even simple protest, instructing the law to consider simple protest the same as terrorism, and thereby preventing the voice of the masses. Mainstream Media places their vote by showing only the side they agree with, or that they are told they must. The average citizen has no ability to elect change, because they have been disenfranchised by wealth and corporate power. The fear is that if the masses have weapons there is a possibility for the masses to rise up to elicit change, which forces the government to take steps to remove the weapons. All throughout history this has been evidenced, this country is very close to that crossroad right now.

    • Comment Link bobf Sunday, 29 September 2013 08:27 posted by bobf

      David, perhaps you should read recent case law on the subject. The US Supreme court has already ruled o the "militia" or prefatory clause In the 2nd amendment in DC v. HELLER 2008...The FIRST SENTENCE of the ruling states: "The second amendment guarantees an individual's right to posess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes such as self defense within the home." THAT is the law of the land, period! Your argument about militia service is an old and dead argument.

    • Comment Link Cliff Williams Sunday, 29 September 2013 06:44 posted by Cliff Williams

      David, try reading past the phrase and gain a larger understanding which you obviously lack. First, try reading the Founder's personal writings on the matter. There is no confusion on how they felt about personal firearms ownership, bearing them, and responsibility for your own security.

      Second, yes, well regulated militia. The Founders never meant for us to have large, standing militaries, or even police forces for that matter, hence the reference to the militia which was intended to secure the state.

      And "regulated" meant regular when the Bill of Rights was written, not oppressive, unnecessary government oversight as it has come to be known in our time.

      It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt. Hope that helps.

    • Comment Link Robert Harris Sunday, 29 September 2013 00:54 posted by Robert Harris

      "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."
      A well regulated Militia, being necessary to the security of a free state (Read: 'The USA is going to have an Army, just like those dastardly Brits'), the right of the people to keep and bear Arms, shall not be infringed (Read: You may have to shoot your Army, just like we did, when we renounced our British citizenship, last year.).

    • Comment Link Brooke Saturday, 28 September 2013 23:24 posted by Brooke

      The problem is not guns, it is violence, plain and simple. People seem to want to avoid the real issue here. Looking at the FBI stats, guns violence is a relatively small part of violence in the US. Laws to limit or take away guns will be just as useful as laws against drugs and alcohol. Prohibition didn't work and last I checked no one has won the war on drugs. Gun Free zones = Criminal safe zones, 9 out of 10 mass shootings prove this point.
      If as a society we want to stop violence in out cities and towns, again going to FBI, DOJ, US Dept of Ed studies, communities need to come together and communicate. The stopping of violence and crime happen when communities come together and communicate and has been proven in many governmental studies. What works in one town will be unlikely to work in a bigger city. There is no "one size fits all" which is what a state or federal law is. This is not a black and white issue of 2A or no 2A, if we want to make our society better we need to stop fighting over 2A and start addressing the real problem of violence.

    • Comment Link James r Saturday, 28 September 2013 22:35 posted by James r

      Go search Paul Harvey's warning in 1965. Paul Harvey was one of the true reporters from before WWII. He made a prediction in 1965 and most of it has become true. For those who think it is time to take the guns away, maybe you should stop taking the drugs you are using, really go understand the issue that is presented. You claim that no one needs the guns. Go dig out the facts. The turning point of the mass shootings in 1993. Before then there was only a handful of mass shootings. At that point the government stopped financing mental health, almost eliminated institutions to house and treat those who are violent, implemented the Brady Bill which created the background check system, NICS. Since the establishment of NICS, it mandated that all states must upload their felons who were convicted, all those who were involuntary confined for mental illness or those who were adjudicated mentally ill that posed a danger to themselves or the population. Only 5% of the states send the information to NICS. In the last 6 mass shootings, 5 of them were being treated for their mental illness and 1 was 4 gang members who were previously convicted felons in a gang. The Supreme Court has said many times in their decisions, "The police are not their to protect the individual, but the community as a whole". Therefore the 2nd Amendment is pivotal for the individual to protect themselves. Our Founding Fathers knew from their own history, that setting up a government like ours could turn into the tyrant that they just beat. That is why the government is trying to take all guns away, to create another form of slavery to the rich. That the power that they took would become another Roman Empire that failed and collapsed. WAKE UP AMERICA BEFORE IT IS TOO LATE! Let's take this country back to where the government fears its people, not that the people fear its government!

    • Comment Link Nick Saturday, 28 September 2013 22:22 posted by Nick

      David said: 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"...

      ===================
      I dig irony.

      You gun grabbers need to read the Constitution, and get an education, and learn to also read the Federalist Papers where they debated the 2nd Amendment, and SCOTUS decisions. The 2nd Amendment is an INDIVIDUAL right, just like the rest of the fiirst 10 Amendments. Militia is ANY able bodied person 17-49, and is separate of the individual right to bear arms. Well regulated means well trained and supplied. Its not the meaning your ignorant person thinks. Just like welfare doesnt mean freebies and handouts in the Constitution.

    • Comment Link Lysander Saturday, 28 September 2013 21:11 posted by Lysander

      It is a mistake to call the right to keep and bear arms a "constitutional right." The Constitution, while it might recognize the right, does not grant the right. Rather, the right to keep and bear arms is a *natural* right, inherent in one's birth as a human being. Others may tolerate what they will, but I will not abide anyone who attempts to strip me of that right, for there is no-one alive who has the authority over my body or my mind to take that right from me, and anyone who would attempt it must mean me harm. History is full of examples proving this maxim true.

      To the commenter above who claimed that gun "nuts" do not understand the meaning of the words "militia" and "well-regulated," you are wrong, and I believe it is you, sir, who does not know the meaning of those words. I would guess that you have made the error of assigning them their modern, popular meaning. Here is their original meaning:

      Militia: The body of able-bodied persons who, having an interest in the continued freedom of their homeland, can be called upon to defend their homeland from those who would threaten either the security or Liberty of the people. This applies to *all* of us, whether we belong to the government-sanctioned "armed forces" or not.

      Well-Regulated: Well-practiced. The concept of a "regulatory state" had not yet taken root in the newly-free America. Thus the term "well-regulated" had nothing to do with government regulations.

      A suitable modern restatement of the 2nd-Amendment could be:

      A well-practiced armed citizenry capable of defending themselves from threats and invasions, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    • Comment Link Robert S. Saturday, 28 September 2013 20:24 posted by Robert S.

      "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"..."

      The intent of the 2nd amendment is, as stated, to afford the people of the United States the right to form in defense of the constitution against those who would move against it. It is not about hunting, it is not about carrying this or shooting that - it is about the right of the people to defend themselves against tyranny. So we look at the key terms that many focus on - "militia" and "well-regulated". Militia (from dictionary.com) "A body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government." If the argument is '2nd amendment is about a militia' then you must concede the anti-military weapon argument is moot - today, you cannot be a force to defend or be called to defend with a musket.
      The Constitution refers to 'Regulated' - Here, regulated is the responsibility of all United States citizens to maintain and define, not the government. In essence - We the people are responsible for the maintenance of a militia capable of standing against any assault on the constitution - armed or otherwise. If armed then, again, we must all agree - you can't do that with a musket anymore. If we are willing to give up one of our rights, then you we must be willing to give up the rest as, in the case of the bill of rights, the authors felt that you cannot hope to keep the 1st without the 2nd or the 3rd without the first 2 etc.

    • Comment Link BIg Mike Saturday, 28 September 2013 20:01 posted by BIg Mike

      David, who reveals his utter ignorance by bandying the epithet "gun nuts" around, obviously understands neither "Free State," "the Right of the People," "shall not be infringed," nor even the Constitution itself, let alone "well regulated" (properly trained and orderly) nor "militia" (all able-bodied male citizens age 18-45, per George Mason who co-wrote the document in question). I think we all know who the "moron" is here.

    • Comment Link David Tuesday, 24 September 2013 16:16 posted by David

      "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."

      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"...

    • Comment Link Marc Sunday, 22 September 2013 16:50 posted by Marc

      Taking away any Rights out of the Constitution opens the door for bats to come in, terrorize and it's all downhill afterwards. Does not happen! Cannot happen!

    • Comment Link Michael D. Hansen Monday, 16 September 2013 21:31 posted by Michael D. Hansen

      The Right to Bear Arms was not created to protect myself from burglars entering my home. It was, rather, created to allow me to protect myself from an overbearing federal governments assault on my liberties.

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