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 Chris Thursday, 14 November 2013 13:10 posted by Chris

      There are plenty of countries that don't have a right to bear arms. Move there.
      What? You don't feel safe there? They don't allow you the same freedoms as here?

      Then clam up.

    • Comment Link Henry Thursday, 14 November 2013 13:06 posted by Henry

      Yes, we have a ''large'' standing army to protect us from foreign countries, but who would protect ''us'' from that same army in the hands of our government officials? You can see what they are trying to do to us now, while we are armed. What would they try as soon as we were disarmed?

    • Comment Link Uxi Thursday, 14 November 2013 13:04 posted by Uxi

      The Founders provided a mechanism to adjust anachronistic provisions of the Constitution with a legal Amendment process. That said, there's a word when only police and military have weapons: aristocracy. The fundamental Natural Right to defend one's own life and resist tyranny has nothing to do with technology. The technology, mechanics, and chemistry of most firearms is just not that complicated as the handmade weapons of the 19th century showed.

    • Comment Link Leonard Rusciani Thursday, 14 November 2013 12:51 posted by Leonard Rusciani

      The right to bear arms is more relevant today than in 1789 BECAUSE our federal state and local governments have grown so much in scope.
      We are a nation of laws and not men. That means that we need the minimum number of people to uphold the laws. It is now upside down. We have too many men in positions of power to not only corrupt existing laws, but to create even more laws that regulate the individual rather than protect his/her liberty and self determination.
      We are nearing the point of insufferability, an armed populace not only keeps this point in check, but is ready to change it when it does.

    • Comment Link RSollazzo Thursday, 14 November 2013 12:48 posted by RSollazzo

      Did you know that the US government recently ended it moratorium on its use of domestic propaganda? Or how the Fairness Doctrine continues to be sought after as a bludgeon against the free speech? Surely the First Amendment is as mutable as the Second given the motion as it was proposed, directly impacting this websites ability to even debate the issue, let alone call it into question?

      Our free speech extends as far as burning the very flag representing this country and opting out of that antiquated Pledge of Allegiance, yet if the First Amendment were called into question as it has here in a poll, I'm pretty sure we could all predict the results. And yet, without the overarching protection- or dare I say threat -of the Second Amendment, you would not have a First.

      Then again, it's probably little more than an abstract concept to organizations receiving $445 million in government funding in order to maintain their audience.

    • Comment Link J Nelson Thursday, 14 November 2013 12:48 posted by J Nelson

      Well here's the thing. The 'right to keep and bear arms' is not given to us by the constitution or the US Federal Government. It is given to you by God, god, or if you prefer nature as the natural right of an individual to defend themselves. In other words it is inalienable. Any person that makes a claim that it 'has outlived it's usefulness' is a claim made by simple minded fools and political tyrants.

      Beyond this restricting the natural right to posses a weapon isn't even necessary on any level. By comparison to any other way do die you more than 5 times as likely to die by the CORRECT application of medical care than by gun. And this goes up beyond 10 times as likely if you filter out suicides.

      Of course it's likely that this will debate will come back to the issue of these 'so called' assault weapons. And as much as the people voting for this statement will disagree there is no logical reason to even consider banning weapons like this. The incidents involving them are so few and far between as to not even be worth considering. The obvious difference being that these incidents always get exceptional coverage when they happen.

    • Comment Link John Thursday, 14 November 2013 12:43 posted by John

      Thursday, 14 November 2013 12:16 posted by CJ

      ' Not that everyone should have to serve in the military, but that if you want to own a gun you should have to go through a background check, and go through a serious, strenuous training course that consists of several hours of both classroom instruction (regarding both the laws as well as safety, security, and maintenance), as well as in range instruction on the operation. Once you have finished your mandatory training you have to pass a test and then can take possession of your gun. We already have the model in place here in California with our drivers training. Private companies provide the training, and the state administers the test, and as a general rule it does pretty well. (As long as you don't count california rolls at stop signs against us.)'
      CJ- While I don't necessarily disagree with this, this wasn’t a problem until firearms safety was taken out of the classroom. Kids in the ’50s & ‘60s had basic firearms safety training and some schools actually had rifle teams, including schools in California.
      Today, you are allowed to purchase a firearm legally, without any training, information on the firearm, or care and feeding of said firearm. While not illegal, it is unwise. But as it is a constitutional right, not much can be done within the constraints of said constitution. We teach our children to be safe- how to be safe, where we need to be safe, who we can be safe with. But we do NOT teach our children how to be safe with tools- because a lot of parents don’t know how themselves or won’t take the time to do it. I see it as a failure of parenting.

    • Comment Link The Don Thursday, 14 November 2013 12:38 posted by The Don

      It is really simple. Everyone is entitled to their opinion. If you feel strongly that the Second Amendment is no longer applicable, then build a constituency, convene a Constitutional Convention, and change the Constitution. Otherwise, PLEAS SHUT UP!

    • Comment Link ZeNBowyer Thursday, 14 November 2013 12:38 posted by ZeNBowyer

      Today we need the 2nd Amendment more than ever-our bloated, corrupt, insolvent, cruel and tyrranical government is on the verge of turning our country upside-down, depriving us of liberties, freedoms, a quality of life unknown to the rest of the planet,
      You don't see the government disarming, do you? Our police look like para-military units, with military hardware,
      and with these huge FEMA prison camps erected around the country, what's that all about? And the NSA spying, recording and building files on every citizen in our country???
      How about the Federal Reserve? They write a sum of money on an electronic ledger, this suddenly becomes money, they loan this sum to us, the government, and we the people pay the Federal Reserve this money, and interests, yes, that's how it really works, and of course this name is confusing, "Federal Reserve," because there is nothing federal about it-these are the largest banks, the banking syndicate, that you owe all this money to, that control our money....
      Now having said all this, the writers of the Constitution fought this very situation in their day, they foresaw the citizens of this country having to fight these very same people to keep from being turned into slaves-THIS IS WHAT THE 2ND AMENDMENT IS ABOUT
      This government is armed to the teeth, if citizens allow themselves to be persuaded to give up this right (for the children, for your safety, etc.) we will fall

    • Comment Link James M Thursday, 14 November 2013 12:35 posted by James M

      The only legal way the government can revoke our Right to Bear Arms is by Constitutional Amendment.
      Look up the 18th and 21st Amendments to see what happened when an unpopular Amendment was made to the Constitution.

    • Comment Link Moses Lestz Thursday, 14 November 2013 12:34 posted by Moses Lestz

      It's not so much that any part of the Constitution has outlived its usefulness especially the right to bear arms. It is a proven fact that
      there is less violence in places where firearms are permitted although I don't expect any hard core Libtards to ever change their minds about anything because the core thinking is to scream & holler,ignore all adverse remarks made against your agenda and try and get as many dummies involved in the cause because if sheer numbers holler the loudest that means you win. It's alright though because I realize that the majority of Liberals have never been nor ever will be necessarily noted for their intelligence. I suppose it makes sense that if you can't be good at something then it should only stand to reason that one should devote all their time and effort into being the exact opposite. The age of the Liberals is about to come to an abrupt end.The people including yourselves see the writing upon the wall. It took some time but I think everyone is finally realizing that in the event of a revolution of any sort that many of you who support this type of agenda will be eradicated by such means as what you propose to deprive the people of their right to bear arms. The penalty for treason is hanging so I would propose that there be an agenda to make the possession of rope illegal as well. Thus we are now seeing the effects on society for allowing stupid people to breed.

    • Comment Link First Last Thursday, 14 November 2013 12:33 posted by First Last

      Human Rights are non-negotiable.

      Self-defense is a human right, and a Civil Right.

      Gun Control ALWAYS ends in confiscation, see history lessons for references.

    • Comment Link William Parizo Thursday, 14 November 2013 12:30 posted by William Parizo

      I'm a Vermonter and in OUR constitution it says it is not the Army or State Police's responsibility to protect me and my families, it is written clearly for everyone to understand that it is MY responsibility to do so. That is the way it should remain unless the Feds. & State can granitee our safety or be liable if they don't. THAT'S NOT GOING TO HAPPEN.

    • Comment Link El Wolhound Thursday, 14 November 2013 12:29 posted by El Wolhound

      If you have ANY doubts as to the current need for the protection of this amendment, please visit the Independent Journal website and do a search for "Knockout Game". Then tell me how viable police "protection" is in that situation.
      This nation is in its sharpest decline in public and civic morality ever in its history. The divisive politics and collapsing economy are taking their toll on this once proud republic. Morons on both side of the aisle, career minded sociopaths with no true usefulness to this world other than exchanging oxygen, have driven us to the point of collapse. The Fourth Estate has been annexed by the political machine and is nothing more than vapid talking heads regurgitating the approved propaganda of the day.

      If you haven't armed yourself at this point, you are an idiot and deserve everything you get.

    • Comment Link Michael Sterling Thursday, 14 November 2013 12:28 posted by Michael Sterling

      If a person approaches you and demands anything from you with the threat of physical force, how far away are the police for your safety and rescue? Why would anyone feel it acceptable to submit to such a thing with the possibility of their or their families life on the line? Would you give up your ability to protect them by giving up any legal means of self protection? The Constitution has enabled the common person to protect themselves at multiple levels. A citizen that is Law Abiding will not be the person that someone else should need to fear. A Law Abiding Citizen is someone that stands beside you to protect themselves and those around them from those that mean to abuse or do harm. Every person should have the right to protect themselves to the very best of their ability, and not live life in fear of those that would want to do them harm.
      Removing any of the Constitution reduces the individuals ability to have a full and fulfilling life.

    • Comment Link Gregg Thursday, 14 November 2013 12:25 posted by Gregg

      If you nullify the 2nd amendment there is nothing left to defend the 1st amendment. If the 1st amendment is then nullified this country will sink into a fascist state and the Constitution will be destroyed. At that point, history will again repeat itself like it has many times before.

    • Comment Link Christeena Thursday, 14 November 2013 12:23 posted by Christeena

      When we are willing to give up our liberties for "protection," the government ceases to be By The People let alone, For The People. While the protection of society is paramount to the role of a government in that society, it must be made clear that the government is not an entity in and of itself that must be catered to.

      "...Armed citizens ensured the security of a free state in 1789," and at that time, it was a concern that those who pull the strings of a living government would oppress our citizens. "Today, the U.S. has a standing army and a well-trained police force that provide for our security and protection," but what do we have to protect ourselves against them?

      The values of our society have changed insignificantly enough: we still desire to speak what we want, when we want to. We still desire protection and safety. We still want and need our liberties, because that's what America is about. I don't think this is "a stubborn allegiance to the constitution." Tenants that we once held dear as a nation, continue to exist.

      "Technological advancements have created guns with capabilities far beyond those envisioned in 1789," which makes me wonder why the common American does not have access to things that could protect us from a heavily armed, oppressive government.

    • Comment Link rlemery Thursday, 14 November 2013 12:22 posted by rlemery

      Your absolutely right, all those killings and injuries each year, 96% of them committed by career criminals, gang members, suiciders, crazies and domestic violence abusers as identified by the US government are just horrible.

      So when are you anti gun nuts actually going to do something about those bad people instead of just persecuting the law abiding?

      See the govt and people went after drunk drivers, only punishing drunk drivers for their crimes, and geez, 2001-2011 there has been a reduction of -28% in deaths on US roads, all due to punishing the drunk drivers.

      Amazing how that concept works, punishing those actually responsible for comitting the crime.

      Why is it such a hard intellectual concept for you anti gun morons to understand?

      Isnt it just horrible how since 1960, Law Abiding US citizens have by armed self defense, prevented at least 1,131,788 murders and prevented at least 6,507,782 injuries, all based on publicly available US government data not one single anti gun nut has ever proven wrong or not to exist!

      By the way, how much money did that save the public by preventing an average of 136,421 total injuries a year?

      Oh wait, thats way more than the bad guys are harming, so since armed self defense saves more than just 1 life, and actually saves hundreds of thousands from injury, it is indeed justified.

      So explain again how the 2nd amendment is outdated as it saves an average of 136,421 people from injury per year?

    • Comment Link Dennis Thursday, 14 November 2013 12:20 posted by Dennis

      Ask the Native People how the Gubbermint Nanny State has treated them. I read every treaty that the government ever signed with the Native People and the government violated every one of them.

      Do you chowder heads think government will not run you over if you surrender your arms or support such a contention??? If you do you are in severe denial and as such you incapacity renders you ineligible to participate in meaningful and reasonable debate.

      The Bill of Rights did not give you squat, it reminds government of what is so precious to the individuals Natural Rights that no encroachment is permitted for any reason whatsoever. If you think that ends with hand held arms then you are ignorant of the fact that private ownership of canon was 10 times that of the Continental Navy during the revolution period. "Several Citizens of Boston owned half of the field artillery of the whole country at the outset of the Revolution. It was returned to them by a grateful nation by order of the legislature and command of the secretary of war Henry Knox. The verbose platitudes of the supreme court members is quite entertaining when discussing arms and their limit. they have been spoon fed the blather until they are but parrots of unreasonable decisions of earlier courts and have completely misinterpreted the ruling in "Miller".

      In reading the militia statutes they see only the minimum that each citizen was supposed to keep in their homes so they could be equipped to mount an armed resistance until the bulk of their forces could muster and gather the crew served weapons and form a barrier to invasion, raiding and tyranny. The very reason the "fine" is mentioned in the militia statute is to make it plain that if citizens did not keep the minimum they would be fined for failing to do so. Since none of the members of the court have ever been in the military, and their clerks who do the research and fed the judges the information have taken the time to research the factual basis for the right, the militia statutes and the intent of the Framing of the Amendment, they have made rulings completely devoid of any factual basis and thus cannot properly apply the law.

      I will guarantee you this, if the Framers would have experienced an armored vehicle raid with SWAT forces upon the citizens as we have experienced, the alarm would have been given and the attack repulsed with extreme prejudice, for the British Army was no more than the King's police in the colonies and the Swat type tactics are military exercises that have no place but upon the battlefield. A military action is just that if it is launched by a bunch of police who are already members of the government or actual Army personnel it makes no difference. So if the government is using the police to effect military raids then I say the Second Amendment is exactly the remedy for the acts of arbitrary government.

      So read the account of the trial of the British Soldiers who shot the citizens in Boston at the Boston Massacre. They were tried by a court and a jury not acquitted by some police organization and an administrative body. It was 12 men chosen by both sides and the soldiers faced execution for killing citizens. Do we have any such mechanisms in place today or they allowed to pass judgment on their own with little or no question??? And you have the gall to ask this question at all.....

      Your sniveling cowardess taints the air and you are not fit to be our countrymen or women if you cannot fathom the injustice e and the tyranny evident in our society today. You have been heeled as the dogs you are and you are not fit to exchange discourse with free men.

    • Comment Link Nick Thursday, 14 November 2013 12:17 posted by Nick

      Alan Dershowitz - has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.”

      Brb, trying to eliminate one of the most fundamental rights guaranteed by our constitution.

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