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?
Professor of Law, Harvard Law School
Professor of Law and of Government, University of Texas
Research Director, Independence Institute & Associate Policy Analyst, Cato Institute
Professor of Law, UCLA School of Law
Author & Correspondent for ABC News
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.
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.
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.
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.
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
This should be interesting since both Dershowitz and Levinson have spoken strongly in support of the Second Amendment. The comments of another liberal law professor, formerly at Duke, from a seminal paper in the Duke Law Review (William Van Alstyne) is also below.
“Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard, don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.”
William Van Alstyne
The Second Amendment and the Personal Right to Arms
Duke Law Review, 1994
..."Neither is one's right to keep and bear arms absolute. It may fairly be questionable, for example, whether the type of arms one may have a "right to keep" consistent with the Second Amendment extend to a howitzer. It may likewise be questionable whether the "arms" one does have a "right to keep" are necessarily arms one also may presume to "bear" wherever one wants, e.g., in courtrooms or in public schools. To be sure, each kind of example one might give will raise its own kind of question. And serious people are quite willing to confront serious problems in regulating "the right to keep and bear arms," as they are equally willing to confront serious problems in regulating "the freedom of speech and of the press."
The difference between these serious people and others, however, was a large difference in the very beginning of this country and it remains as a large difference in the end. The difference is that such serious people begin with a constitutional understanding that declines to trivialize the Second Amendment or the Fourteenth Amendment, just as they likewise decline to trivialize any other right expressly identified elsewhere in the Bill of Rights. It is difficult to see why they are less than entirely right in this unremarkable view. That it has taken the NRA to speak for them, with respect to the Second Amendment, moreover, is merely interesting(p.1255)--perhaps far more as a comment on others, however, than on the NRA.
For the point to be made with respect to Congress and the Second Amendment is that the essential claim (certainly not every claim--but the essential claim) advanced by the NRA with respect to the Second Amendment is extremely strong. Indeed, one may fairly declare, it is at least as well anchored in the Constitution in its own way as were the essential claims with respect to the First Amendment's protection of freedom of speech as first advanced on the Supreme Court by Holmes and Brandeis, seventy years ago. And until the Supreme Court manages to express the central premise of the Second Amendment more fully and far more appropriately than it has done thus far, the constructive role of the NRA today, like the role of the ACLU in the 1920s with respect to the First Amendment (as it then was), ought itself not lightly to be dismissed. Indeed, it is largely by the "unreasonable" persistence of just such organizations in this country that the Bill of Rights has endured."
Regardless of weapons tech between the time the 2nd amendment was written and today, it stills applies, as that same tech is available to the governments of the world which is the point of the 2nd amendment and I will never surrender my right to bear arms for defense or the defense of others I choose to defend. No one has the right to choose for me how I choose to defend myself.
I don't see a valid reason to curtail the right to bear arms. No matter how you try to tighten restrictions or ban guns altogether, the criminals will get them. I asked the county sheriff, who has jurisdiction in my area, what the average response time would be for someone to get to my house if I had an armed intruder. Depending on where they are when the call came and how many were on duty, it could be five minutes or up to thirty minutes. That's too long to wait in a dangerous situation!
An original interpretation of the 2nd Amendment of the U. S. Constitution, considering relevant clauses in State Constitutions
by Nick Sheedy
Article I of the U.S. Constitution grants certain prescriptive powers to Congress:
"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:
"To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."
It is important to differentiate between PRESCRIPTIVE powers and PROSCRIPTIVE powers. A Prescriptive power is one whereby the government has the authority to require certain things. A Proscriptive is power in one whereby the government has the authority to prohibit certain things.
These powers to regulate the militia (the only section in our Constitution that might delegate to Congress any power to regulate arms—weapons, guns, etc.) are PRESCRIPTIVE powers (the word "prescribed" is very clear in the Constitution itself, leaving no room for argument.) Congress is not vested with any Proscriptive powers in this regard. In other words, Congress has the power to require people (the militia) to own a gun, how often to train, and even stipulate what caliber a gun must be, but Congress has never been granted the power to prohibit members of the militia from keeping or bearing arms, or certain guns, nor prohibit members of the militia from training, etc.
What does the Second Amendment mean? Read the words:
"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."
There are several clauses in there that make it a bit muddles if you're not familiar with 18th century legalese; let's clarify these clauses by stating them separately rather than in one long sentence:
Whereas a well-regulated militia is necessary for the security of a free state, therefore, the right of the People to keep and bear arms shall not be infringed.
What is a "well-regulated" militia? "Regulated" does not mean "controlled" in this case. It means well-organized, well-equipped, well-trained and well-disciplined (as the State Constitutions make clear below). Congress has the authority to PRESCRIBE the equipment and training that the militia needs to have, and each State reserved the authority to oversee training and administer other prescriptions Congress set forth.
Furthermore, the 2nd Amendment states that the well equipment, well training and well disciplined Militia is necessary for the security of a FREE STATE. Some other countries might be able to secure a non-free state in another manner (say with a professional army and a police force that is armed at the expense of an unarmed citizenry; these are called police states, etc.), but the militia model outlined by the U.S. Constitution is how security is achieved in a FREE STATE. And because this is so important, the Second Amendment prohibits any infringement (by anyone—including Federal, State and local governments) of the right of the People to keep (own, hold, posses) and bare (carry, travel with and use) arms (weapons, guns, etc.).
Who are "The People"? In reality: you me, your next door neighbor and every other individual citizen in the United States. The phrase "The People" is used in the Preamble as well as the First Second, Fourth, Ninth and Tenth Amendments to the Constitution. It includes all individuals, but is not a collective unit. The Ninth and Tenth Amendments clearly show that "the People" does not mean the State, as they are listed quite distinctly. "The People" includes all individuals (in some cases all citizens) that make up the general public. No person may be deprived of Liberty, except by Due Process of Law (a court or judge has to have a reason to deprive you of any liberty--and it must be done in a process that allows you a defense, etc.)
What is the militia? Historically, it is the unorganized body of all able-bodied men aged 16 years and older—unorganized in the sense that it is not an active or full-time military unit. But since colonial days and up until the States were forced to shutter the real militias and form the National Guards under the auspice of Federal control in the 1930s and 1940s, the militia was always organized into local units, divisions, companies, with military ranks and commissions given, and militia members were trained locally accordingly to the requirements prescribed by Congress.
Now, as to the intent and full meaning of the Second Amendment, the State Constitutions of the time should help clarify the principles upon which the Second Amendment of the 1787 U.S. Constitution was written:
The Virginia State Constitution of 1776:
"Sec. 13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."
The Pennsylvania State Constitution of 1776:
"XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power."
The Maryland State Constitution of 1776:
"XXV. That a well-regulated militia is the proper and natural defence of a free government.
"XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
"XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power."
The North Carolina State Constitution of 1776:
"XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."
Rhode Island State Constitution of 1776:
"Sec. 22. The right of the people to keep and bear arms shall not be infringed."
The New York Constitution of 1777:
"XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State."
The Georgia State Constitution of 1777:
"ART. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies."
The Vermont State Constutution of 1777:
"XV. That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."
The Vermont State Constitution of 1786:
"XVIII. That the people have a right to bear arms, for the defence of themselves and the State: and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. …
"XIX. The inhabitants of this Commonwealth shall be trained and armed for its defence, under such regulations, restrictions, and exceptions, as the General Assembly shall by law direct. The several companies of militia shall, as often as vacancies happen, elect their captains and other inferior officers; and the captains and subalterns shall nominate and recommend the field officers of their respective regiments, who shall appoint their staff-officers.
"XX. All commissions shall be in the name of the freemen of the State of Vermont, sealed with the State seal, signed by the Governor, and in his absence the Lieutenant-Governor, and attested by the Secretary; which seal shall be kept by the Council."
The United States of America Federal Constitution of 1787:
Second Amendment: "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."
If you are still confused about what the Second Amendment of the U.S. Constitution means, re-read those sections from the state Constitutions, and perhaps it will sink in. The so-called "gun control" that is being pressed on the people of the United States today clearly infringes on our rights to keep and bear arms, and flies in the face of the reason the Second Amendment was adopted: to provide for the security of a FREE state. If the Second Amendment has outlived its usefulness, then we have either reached a plane of human consciousness where security is not something we need to worry about anymore, or the United States of America are no longer Free States.
the Second is the only thing standing between a complete Constitution and none at all. when it goes, so will the rest of that great document.
Now some people across this country want to blame murder on things like 30 round magazines or semi-automatic rifles. They want too blame something, anything, that they can control but what they really want to ban is violence, and murder, and insanity. Nobody talks about that though because deep in our hearts each of us knows that violence, and murder, and insanity are built into the human condition, and likely always will be.
You know, there are two kinds of animals in this world: predators, and prey.
No one watches a leopard chase down a gazelle and denies that the gazelle has a right to use its hooves and horns to protect itself from the predator. But there across the country, who would deny that same right to self-defense to other human beings. Such people seem to think that the way to stop the leopard is to cut the horns off of the gazelle – that by somehow making it easier for the predator, the predator will somehow go away. This is insane. When you make it easier for the predator – you get more predators.
Let’s start with the so-called “assault weapons,” more properly known as semiautomatic rifles. In 2011, total firearm murders came to 8,583, according to the FBI. During that time, the total murders committed by rifles – ALL rifles, not just semi-automatic rifles – were 323. That’s 3% of all murders. Hammers and clubs kill half again as many people as rifles. Hands and feet murder twice as many; and knives kill five times more Americans than all rifles combined.
Preventable medical errors kill about 98,000 people per year: medical malpractice kills more than twelve times as many people as are murdered in the US each year. That’s more than 300 times the number killed by all rifles, not just the so-called “assault rifles.” And yet no one talks about limits on hammers, or knives, or doctors or hospitals. No one does that because the good we perceive from hammers and knives and doctors far outweigh their perceived harm.
And yet, studies show that firearms prevent anywhere from 800,000 to over two million violent crimes every year. Murders and rapes and assaults are reported, but murders and rapes and assaults prevented by firearms isn’t – in the same way that a jet crash catastrophe makes the evening news while the 30,000 safe landings that occur every single day in this country -- don’t. The lowest estimate means that 100 times more violent crimes were prevented by firearms than the total murders committed by firearms. One hundred times.
In October of 2007, Amanda Collins was walking to her car after a night class at the University of Nevada at Reno. Amanda had a concealed carry permit for her 9mm Glock that she carried for self-defense. Unfortunately for Amanda, UNR is, like most college campuses, a gun-free zone. So, like the law-abiding citizen that she is, she did not have her gun with her in this gun-free zone when she was attacked by James Biela. Biela raped her on the UNR campus, less than 300 yards from the Campus Police Office. He then walked away, and a few months later, this human predator went on to murder 19-year-old Brianna Dennison. Amanda Collins went on to say, quote, "I know, having been the first victim, that Brianna Dennison would still be alive, had I been able to defend myself that night." Unquote.
Amanda Collin's right not to be raped and Brianna Dennison's right not to be murdered were taken away by this gun control law.
When it is all said and done, the Second Amendment to the Constitution is not there to protect us against criminals. And the people calling for gun control know this. That’s why they want gun control, instead of crime control. That’s why they want laws that at the stoke of the pen turn law abiding citizens into criminals.
The Second Amendment is there to protect the American People from Tyranny.
The Second Amendment is there to protect the American People from politicians.
The Second Amendment is there to protect the American People from government.
Some politicians claim America deserves a vote on this issue. Okay. Let’s have a vote. Those of you advocating infringement on the right of the people to keep and bear arms need to go to the American people with the 28th Amendment – which would simply read “The Second Amendment to the US Constitution is hereby repealed.” That would, for the first time, give you the legal authority to do what you are have been doing, and are trying to do now, in direct violation of your oath of office to defend the entire Constitution of the United States, not just the parts you happen to approve of.
Go to the American people and tell them that ultimate power is no longer to be vested in the People, who cannot be trusted with that power. Tell them only the Government can have that power now. Go out and try to convince the people of the 38 states you’ll need to get that amendment passed to agree with your opinion of them, versus their opinion of you. I dare you.
12 million unarmed men, women and children were unable to resist being murdered by their own National Socialist government in Germany. Perhaps fifty million unarmed men, women and children were murdered by their own Union of Soviet Socialist Republics. Fifty million Chinese murdered by their own government under Mao, who also disarmed his people. And in Cuba. And Vietnam. And in the killing fields of Cambodia.
You say that can’t happen here? You say we are protected? By what? By the Constitution you are in the process of destroying? You are in violation of your oaths of office by so much as introducing this legislation, let alone passing it!
The previous inhabitants of our government watched as 100 million people were murdered after being disarmed by their own governments. Every one of those men, women and children were as real and as precious and irreplaceable as the children at New Town.
Should we be disarmed? NO!
You are 4%... I am 96%...Good luck.
Against The Motion completely, We need the 2nd amendment and it is our right granted to us to protect ourselves and our families. The police can not protect the public or any one. It takes them around 27 minutes to respond to a call ! Our country will not longer be free with out an armed population.. We need to train the youth of today to learn firearm control and be ready to stand up for America !
The second amendment should remain as is for ever. Shall not be infringed !
The second amendment should remain as is for ever. Shall not be infringed !
As long as there are governments there should be the right to protect ourselves from them and the power they abuse.
Plain and simple, the police show up after the crime. So please tell me what good the police will do if someone was to break into your house rape and kill one of your family members. The second amendment is a god given right. Remember drugs are illegal too and that has stopped all the drug related problems this country has. We don't have a gun problem we have a political problem.
The Constitution never had and never will have an expiration date. That's the beauty of it. It will go on forever, just as long as the politicians don't get their hands on it. We, as a people, have to keep congress in check. And we haven't. Look at what is happening when we let the inmates run the asylum. Total chaos.
You can give up your right to be adequately equipped when late night intruders decide to invade your home , steal your hard earned belongings and rape and kill you and your family .if you want to. I will NOT give up my right to protect them. Think it won't happen in your neighborhood ? Pass this ridiculous senseless law and see how fast looters take advantage of the situation. Do you think that if this law was passed ...the looters would automatically turn over their guns ? If so you are very naive and have never been to Watts, Harlem or Buttermilk Bottom . The first thing Hitler did before taking over Germany and enslaving them in tyranny is disarm the country. NO !
Not only is the Constitutional Right To Bear Arms necessary. It is necessary now more than ever.
We need it now more than ever. Out right to keep arms is the only thing keeping US free.
When one lives "out in the country", and seconds count, the police are minutes away. The police do a fine job, but they can't be everywhere, all the time. I do not look for trouble, but if it comes to me, I will be prepared to defend my family and myself, with whatever means required.
If someone forcibly enters my home in the middle of the night, I have no recourse but to assume that they mean harm to me.
I was taught not to start a fight if it can be avoided, but by God, if someone brings it to me, I will end it.
Whoever thought of this is an idiot. This will not make America safer. The places with the strictest gun laws have the highest gun violence.
When seconds count the police are only minutes away.
Against the motion
Mind your business Brits! Let America deal with its own issues. We created the constitution to protect ourselves from the tyrannical rule of your country. Our second amendment rights sent you guys sailing back to your country with far less soldier then originally sailed over. Mind your business and stop pimping out our constitution so you can make money by selling tickets to your bogus debates!
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