The Constitutional Right To Bear Arms Has Outlived Its Usefulness

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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 Will Wednesday, 06 April 2016 13:48 posted by Will

      Dershowitz is off the mark. First, it may be of interest what other countries do and do not have a similar right enshrined in their constitution, but in and of itself that matters very little to the point. Second, the correlation he assumes isn't there. Many countries with high gun ownership and a high level of liberty as to arms have LOW crime rates and low rates of violence. Third, no one suggested that everyone should have a gun. Fourth, the Second Amendment is NOT limited to personal defense. In fact, its terms suggest that it was intended to have an even broader benefit than that. Related to that, he knows full well that "the militia" as that term was used in the Constitution was the able-bodied citizenry capable of bearing arms in defense of the state. The argument that treats it as a specific group of private individuals organized for that purpose is disingenuous and incorrect. Further, such groups still do exist.

    • Comment Link DKDave Tuesday, 15 March 2016 12:48 posted by DKDave

      Well my though is easy; keep the guns and just make sure the law is in forced. If we use Obama's logic about banning assault rifles as a way to save just one life! Let put a hand gun in every ones pocket (that is legally able to carry and wishes to carry) and save 2 simply because there is an overwhelming amount of evidence that good people with guns save more lives then Firearm regulations!

    • Comment Link Adam Simonson Monday, 24 August 2015 17:05 posted by Adam Simonson

      The argument has been made that no matter what we do, we cannot prevent a criminal from getting a gun and committing a crime 100% of the time. It was also argued that this the very threat of a gun is often more effective than the actual use of one when it comes to self defense. In that case, is it possible that the 2nd amendment, though may not have been created as one, has indeed evolved into an ideological statement about how we as Americans think about our rights, and in that sense, does it not speak more to the kinds of citizens of the world we want to think of ourselves as? Do I want to be a person who accepts violence, or abhors it?

    • Comment Link Brian Monday, 01 June 2015 14:07 posted by Brian

      One part of the usefulness this amendment is a deterrent against actions of the government. While the government we know now isn't going to fall back to the old tricks like completely disarming the populace or forcing citizens to quarter military members, we don't know that the future government won't want to do those things. This is a view that not only preserves our freedoms now, but sees well enough into the future to attempt to preserve their freedoms as well.

      “A society grows great when old men plant trees whose shade they know they shall never sit in.” -Greek Proverb

    • Comment Link Nate Monday, 04 May 2015 09:23 posted by Nate

      Its our right to bear arms if we keep getting rules placed on us then we the people will not be free.

    • Comment Link nikonaddiction Sunday, 12 April 2015 01:05 posted by nikonaddiction

      This was a sham and wasn't even balanced. Eugene actually made statements that skewed it to the For the motion. So if you have 3/4 of the panel for you get 75%. Alan also lied about the NRA with his statements. The NRA sells safety items like locks he said they would lobby against.

    • Comment Link Michael Saturday, 07 March 2015 23:10 posted by Michael

      John Donvan, I admire your patience and perseverance in attempting to keep the debaters on topic even in the face of such a polarizing issue.
      Do people really change their opinions? I would say that if your opinion would not change despite substantial evidence to the contrary that it has ceased to be an opinion and is now a belief. The second amendment is, to many people, sacred, and therefore any alteration would be tantamount to blasphemy.
      On the other hand, perhaps it is naive to assume that there will never be a need to defend ourselves on our own soil without the aid of or even against our government. I'm sure that many an empire in the past has borne some such hubris. Whence would that militia then come?

    • Comment Link Derpfest14 Tuesday, 22 April 2014 23:50 posted by Derpfest14

      I keep seeing Switzerland mentioned so I have to bring this up: if you graph gun ownership per 100,000 pop vs. gun deaths per 100,000 pop., Switzerland is a clear outlier - that is, the exception, not the norm. There's a linear correlation (r = 0.7) between gun ownership and gun deaths.

    • Comment Link Terry Simpson Wednesday, 09 April 2014 11:41 posted by Terry Simpson

      I haven't seen the proposed replacement. The original seems workable to me 'well regulated militia' vs 'infringement. Changing the Constitution and infringing the 25% that voted against, out of their weapons would risk civil war. We have two gun problems, an unregulated militia and a shooting spree social virus. Instead of changing the US Constitution how about we change the constitution and bylaws of the NRA? Sex education in school is considered important, how about strict instruction in the manual of arms, gun safety and rules/laws of engagement? How about restricting speech promoting violence, only a licensed sworn professional allowed to instruct in violence.

    • Comment Link Brian Tuesday, 25 February 2014 22:55 posted by Brian

      I wish the against team would have emphasized this; you don't need a 2nd amendment until you really need it. That is why it is the 2nd of all the the rights in the Bill of Rights. Without a 2nd you won't have a 1st, 3rd, 4th and on.

    • Comment Link RYoder Sunday, 23 February 2014 11:04 posted by RYoder

      The right of the individual will never outlive it's usefulness...period. The history of the world is replete with examples of collective powers oppressing the liberty, freedom, safety, and self-determination of the individual. Anyone who believes otherwise is delusional and disingenuous. Additionally, the 2nd amendment doesn't grant the right to keep and bear commands that the government shall not infringe a right that existed prior to the is the case with all the right enumerated in the first 10 amendments....otherwise referred to as bill of individual rights.

    • Comment Link RH Friday, 21 February 2014 22:59 posted by RH

      Dershowitz claims that because the percentages are different for blacks and whites approval of the NRA (and gun ownership), that means that the culture has an affect on that belief. If you took any two groups of people (unless you chose them very specifically to all believe the same way) those percentages would be different - two white groups, two black groups....etc.

      After this show he doesn't seem so smart to me anymore.

    • Comment Link michael alvarez Sunday, 16 February 2014 00:29 posted by michael alvarez

      at the end of world war 2, USA veterans came home to "the Battle of Athens". Specifically they armed themselves and fought a corrupt county government

    • Comment Link Trevor Thursday, 13 February 2014 23:41 posted by Trevor

      U.S. Code › Title 10 › Subtitle A › Part I › Chapter 13 › § 311
      10 U.S. Code § 311 - Militia: composition and classes

      (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
      (b) The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    • Comment Link Haig Valenzuela Thursday, 06 February 2014 00:14 posted by Haig Valenzuela

      Speaking as a half-breed descendant of big-time cultural losers:
      1. Native American
      2. Armenian
      Maybe we'd still be on our old lands if we were able to have fought back. We were outgunned, plain and simple. If 1.5 million Armenians would have each taken out 1 Turk, do you even think the Armenian Genocide would have happened? Talat Pasha and his goons would've gone after some other dis-armed minority within the Ottoman Empire. Indians had a tough time getting the firepower to fight back. We may have been able to work out a better deal with the Gov't had we had the armaments that were illegal to sell to Indians. Nope, doesn't matter what these libs cook up, my history convinces me otherwise.

    • Comment Link Richard Sunday, 19 January 2014 01:01 posted by Richard

      To a few of the more recent posters:

      Arguing for the motion doesn't necessarily make that argument "anti-gun", nor does it necessarily advocate for making all guns illegal. Arguing that "X" shouldn't be a right guaranteed by our federal constitution, doesn't mean "X" becomes illegal; it simply means that "X" should be a privilege, like driving a car, and should be treated accordingly.

      Also, the idea that guns protect citizens against government oppression is misplaced. Whether a government takes "total advantage" of its citizenry does not depend on whether its citizens are armed with guns. Do you really think armed citizens could stand up against the might of the U.S. military? What good is a rifle against an F-16, a tank, or a cruise missile?

    • Comment Link Patrick Saturday, 18 January 2014 12:41 posted by Patrick

      Can you please not have Dershowitz on any more. He's loud and his points are usually emotional and weak. We barely got to hear from his seemingly smarter teammate.

    • Comment Link CJ Thursday, 09 January 2014 02:51 posted by CJ

      To be honest, any anti-gun argument makes no logical sense. No matter how many numbers and statistics you put in to justify your opinion. You can look at numbers or how the past was, however its 2014. Alot different from the "musket days". Had our constitutions' second amendment not protected our right to bare arms and guns were completely illegal for civilian use, it would not make it safer and that seems to be the logic behind anti-gun opinions. Even if buying a firearm wasn't like buying smokes, guns will still be here in the wrong hands and innocents would still die as other countries who thought the same way have proven. Your telling me, you would rather have guns go complete blackmarket? Insanity.

    • Comment Link Martin Wednesday, 08 January 2014 22:34 posted by Martin

      I think it is ludicrous to suggest that fundamental human rights should be left to majority rule; Just as with civil rights, there must be a qualitative understanding of the rights you affect. I also think it is ludicrous that the room lost the connection between the advancement of all civil rights with the right to bear arms.

      No one mentioned the Battle of Athens in the late 40's??????

    • Comment Link Andrew Saturday, 04 January 2014 18:15 posted by Andrew

      Citizens today can't match the weaponry of their government. We don't have drones. We don't have briefcase nukes. 240 years ago we had muskets, and so did they. Our best weapon against the government is the vote and term limits. We should be "arming" ourselves against unregulated campaign finance, but as long as the corporate world and government shuttle people back & forth, we won't have a level playing field because corporate money will drive election results. But a well regulated militia won't improve that situation, and its contemporary members should make sure their government is tyrannizing them before them lest they commit illegal insurrection.

      Cities, counties, and states should be able to decide for themselves the kinds of local cultures they want, and that includes how to define self-defense and how to regulate guns. They can deal with the consequences as well. The Constitution has been amended in multitudinous ways, and other amendments are obviously obsolete--e.g. the 3rd (as Dershowitz notes).

      I'd like to see reliable research on the effect of conceal-carry rights, stand your ground rights, etc., on civil safety. How often are guns used successfully to protect or prevent versus how often do they cause an escalation of violence or an accidental death?

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