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


    • Moderator Image

      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

    100|-
    • Comment Link Icorps 1970 Thursday, 14 November 2013 20:13 posted by Icorps 1970

      One must read the Federalist Papers concerning the Militia to understand the Second Amendment. It was meant to prevent Gov't at any level from controlling the citizen's arms. The Militia was seen as the final check on the Federal Gov't. To the extent of explaining that the Federal Gov't could never have an army large enough to defeat the combined militia. Its in there. Not this exact wording but there. The Federalist Papers can be downloaded and searched so look it up if there is doubt. Given this why would ANY Federal firearms regulation be possible? Its only possible because the Supreme Court wanted to control firearms in the 1930s. Bingo the Unconstitutional (from previous decisions) was suddenly Constitutional due largely to ignorance or perhaps agenda advancement by the Court.

    • Comment Link Jorge Thursday, 14 November 2013 19:51 posted by Jorge

      I have lived in the Northeast, the south and the midwest. I have also lived in Puerto Rico (a US territory with the strictest gun control laws amongst all 50 states). Guess what? Criminals have no problem at all getting weapons, while the regular citizenry does...

      If you make it illegal, only criminals will have it!

    • Comment Link Publius Thursday, 14 November 2013 19:48 posted by Publius

      While I don't think guns should be so readily available, I also don't want the government to know what guns I own or how much ammo I own and most certainly don't want them registered.

      I'm a socialist - far left of liberal, but at the same time I'm a firm believer that the government should be in fear of the people, not the other way around.

    • Comment Link Rich Thursday, 14 November 2013 19:34 posted by Rich

      What is a right, and what is a privilege? In the final analysis, the only rights you possess are those you can defend. As such the right to self-defense is the most basic of human rights. It is what separates the citizen from the subject.

    • Comment Link Jay Gruskin Thursday, 14 November 2013 19:31 posted by Jay Gruskin

      The right to bear arms must not trump the right for our children to have a safe public education. If it does, then the only safe education will be "home-schooling" in "gated" communities.

    • Comment Link Mr. Mack Thursday, 14 November 2013 19:27 posted by Mr. Mack

      "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!"

      This is the most ridiculous thing I have read today. By saying that the 2A was meant only for muskets and flintlocks, then you must say that 1A is meant only for printed paper and vocal conversations and not the internet. If the founding fathers would have foreseen firearms that are capable of holding 15-30 rounds and re-chamber themselves, (I refuse to call them assault rifles because thats not what they are) they would have kept the same amendment because they knew that the citizens of this nation would have to defend themselves against a tyrannical government just like the one they fought off. Countries that ban firearms are NOT the safest countries. Switzerland is Europe's gun capital. It has more firepower per person than any other country in the world yet it is said to be one of the safest places on Earth

    • Comment Link Butch Bracknell Thursday, 14 November 2013 19:20 posted by Butch Bracknell

      Both these stances are flawed in their wording, but I am regrettably AGAINST the motion. The text of the Amendment is clear, and there's no real need to get into whether it's anachronistic or not. That's the nature of a constitution. As The Don posted articulately, but needlessly provocatively ("Please Shut Up!!") there is a method to amend the constitution. If there is a political consensus that there needs to be tighter regulation of guns -- and I personally believe some additional reasonable regulation is warranted -- not elimination of guns, but regulation designed better to keep them away from criminals and the mentally ill -- then there has to be a change to the constitution, full stop.

    • Comment Link Alan Thursday, 14 November 2013 19:20 posted by Alan

      Tom Marren
      You mention the musket. Well then lets out that to the test on free speech. In the same time you could not reach millions of millions people with one key stroke. All there was was the quill and paper.

    • Comment Link William Molenda Thursday, 14 November 2013 19:19 posted by William Molenda

      There isn't a time limit on the Constitution .

    • Comment Link Marc Thursday, 14 November 2013 19:13 posted by Marc

      The 2nd Amendment says two important things, one of which has been overlooked. It categorically states that a "well-regulated militia" is NECESSARY to the security of a free state. If a state does not or cannot maintain a militia, its status as a free state is no longer secure. Most states do not maintain any sort of militia, well-regulated or otherwise. We, as citizens of those states should be asking why not.

    • Comment Link  Calvin Thursday, 14 November 2013 19:13 posted by Calvin

      The second Amendment is the only Law

    • Comment Link John McGarvey Thursday, 14 November 2013 19:00 posted by John McGarvey

      Against the motion

    • Comment Link Tom Marren 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!

    • Comment Link Billy Wyatt Thursday, 14 November 2013 18:22 posted by Billy Wyatt

      Washington Is STUPID. I am a simple welder and I know more and understand more than these stupid idiots. I live 14 miles from the nearest red light anbd protecting my family is a fundamental right and NO congress should ever consider taking this right away from me.

    • Comment Link Alan Mann Thursday, 14 November 2013 17:43 posted by Alan Mann

      Having been a member of a "standing army" and a 35 year career law enforcement officer, there is now way I would trust my life, the lives of my family and friends and my property to any "standing army" or a "well trained police force." Although the vast majority of the members of both are professional and have character and integrity, there are enough mediocre members in both to shoot down that notion. Members who should not be in either function. On top of that there are enough who are only there protecting their jobs and who would do whatever told even if it is illegal in order to preserve their jobs. That would include disarming the law-abiding citizens of this great country. Never put your lives and property and freedom in the hands of anyone, preserve our constitution, especially the 2nd Amendment, without which the others would be indefensible.

    • Comment Link Dave Weaver Thursday, 14 November 2013 17:38 posted by Dave Weaver

      The first two amendments to the US Constitution were placed one and two for a reason. The first, assures our right to speak out against government tyranny, the second, the right to remain able to back up our speech.

      Now, more than any time in my memory, is the 2nd amendment more important than ever.

    • Comment Link Jack Liberty Thursday, 14 November 2013 17:16 posted by Jack Liberty

      There are a lot of fools out there that would take all of our Constitutional rights they need to move to China then they would not have to change anything

    • Comment Link Chip Thursday, 14 November 2013 17:16 posted by Chip

      Not exactly sure this will be a 'debate'. The polling as of this moment has 2% in favor of removing/limiting the 2nd Amendment.

      More specifically, the Panel that has to argue for the right being outdated have a nearly impossible task ahead of them.

      It will be exciting to see what happens!

    • Comment Link Andy Hutton Thursday, 14 November 2013 17:11 posted by Andy Hutton

      If you want to see how relevant the Second Amendment is, try taking it away.

      As for whether it has out-lived its usefulness, tell me: has something made the possibility of tyrannical government impossible forevermore?

    • Comment Link CommonSense Thursday, 14 November 2013 17:09 posted by CommonSense

      From its passage and until the late 20th century, the 2nd Amendment to the constitution was interpreted to protect the rights of states to maintain militias and for militiamen to sustain arsenals. In the early years of our country, there was no standing federal army (the founders were afraid of a national standing army consolidating power) and the states were expected to sustain a state militia in order to contribute to the national defense; this expectation necessitated protections for militias that would facilitate militiamen keeping weapons for their service.

      The 2nd amendment was predicated upon the maintenance of state militias—something that has become irrelevant in the face of our federal armed services—and is not something that should have allowed individuals to claim the right to own weapons. State militias had the right to bear arms, but individual, unattached Americans had no such right—this distinction in the difference between the 2nd Amendment being a collective right or an individual right.

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