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

    • 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 arms....it commands that the government shall not infringe a right that existed prior to the constitution....as 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?

    • Comment Link derekvercher Tuesday, 31 December 2013 02:24 posted by derekvercher

      One of the most important benefits the American public has with their guns is it will keep the government from taking total advantage of it's citizens. History has taught us that government or stronger groups will always exploit those who can't defend them selves. That's one of the main reasons our founding fathers put it number two on the list. England didnt allow gun ownership as a result they did what ever they wanted. Right or wrong. All you people talk crap on guns and the right to own them. History is written by the gun. The gun is the reason you have freedom now. All of you tree hugging modern-day hippies think that with kindness and love the world will naturally be a better place. Wrong. Your thoughts and intentions are just and 100 percent correct on the way humanity should think feel and act. But we live in a savage world. Everything that has been taught to us in history class was written by the guy who kicked the other guys ass. LIVE FREE OR DIE

    • Comment Link Chau Monday, 23 December 2013 19:38 posted by Chau

      I think these politicians have outlived their usefulness

    • Comment Link Makuye Monday, 16 December 2013 15:52 posted by Makuye

      While not directly related to Constitutionality, there are a number of things about guns which are often missed:

      1. Guns are in no way natural, and gun practices such as market hunting have been instrumental in successful extinguishing of entire species.
      I suggest that humans with guns have been instrumental in killing and unbalancing native species, and worst of all, further divorced us from valuable experience with nature. Hunting for a few weeks a year, finger a-twitch is nothing whatsoever like experiencing the wild with curiosity in all seasons.

      2. It is clear from gunowner rhetoric, that they have an extraordinary fear of confrontation, disagreement, and exploitation by others should they NOT have a projectile weapon. Their confidence seems to be so completely externalized into their weapons, that they speak in continuously terrified terms about imagined confrontation and situation.
      It may well be that gunowners falsely believe that their lives are constantly in jeopardy from all strangers - itself a dangerous and false cognition.
      About 7.9 guns are owned by each gun owner, as an average.
      They are correct in presuming greater violence than non-gun owners: homicide, suicide, and accidental death together are 22 to 1 versus gun used in self defense.
      10 times as many people were shot and killed in argument in 2011 than by citizens attempting to stop a crime.

      3. Women and guns:
      About 80% of gunowners are male.
      In 2010, nearly 6 times more women were shot by husbands, boyfriends, and ex-partners than murdered by male strangers.
      • A woman's chances of being killed by her abuser increase more than 7 times if he has access to a gun.
      • One study found that women in states with higher gun ownership rates were 4.9 times more likely to be murdered by a gun than women in states with lower gun ownership rates.

      4. The presumption that amateur gun lovers/government fearers could defeat modern skilled professionals in police agencies or military is absurd.

      5. Guns do NOT promote civility! Gunowners are statistically far more impolite to others:
      Drivers who carry guns are 44% more likely than unarmed drivers to make obscene gestures at other motorists, and 77% more likely to follow them aggressively.
      In states with Stand Your Ground and other laws making it easier to shoot in self-defense, those policies have been linked to a 7 to 10% increase in homicides.
      People with more guns tend to kill more people—with guns. The states with the highest gun ownership rates have a gun murder rate 114% higher than those with the lowest gun ownership rates. Gun death rates tend to be higher in states with higher rates of gun ownership.
      Gun death rates are generally lower in states with restrictions such as assault-weapons bans or safe-storage requirements.
      A recent study looking at 30 years of homicide data in all 50 states found that for every one percent increase in a state's gun ownership rate, there is a nearly one percent increase in its firearm homicide rate.

      6. Finally for this comment:
      Mass shootings stopped by armed civilians in the past 30 years: 0
      Chances that a shooting at an ER involves guns taken from guards: 1 in 5

      Did you know that without European guns, Kamehameha would never have been able to unify Hawaii, and it would not then have been taken over through deceit by the US?

      Missionaries across the South Pacific gave guns for religious conversion, and these magical weapons were constantly asked & bargained for by North american native tribes, sometimes resulting in similar escalation.
      Everywhere, many people died because warfare had been symbolic with a very few killed or injured in North AmericaSouth Pacific/Oceania, and gun possession turned such rather minor disagreement into genocide, repeatedly.
      The Inuit peoples, who regarded an animal within spear range as giving itself as a gift of food, when obtaining guns, began killing everything they saw, as their cultural beliefs remained long past acquiring this weapon of mass destruction.

      Because of the complete divorce from nature and consequent loss of mental health in societies such as this one in which we attempt to function, the admittedly improbable cure for a great number of ills would be to eradicate guns from the face of the earth.

    • Comment Link Chris Wednesday, 04 December 2013 22:30 posted by Chris

      This is to Ryan-

      Intelligence squared is recorded in New York. Certainly you heard the audience cheering the Pro side all night.
      They did are not pushing an agenda, if they were, you would see a different national pie chart projected.

    • Comment Link Glockslinger Sunday, 01 December 2013 22:24 posted by Glockslinger

      What the organizers of this event obviously didn't take into account was the general bias of those at the venue participating in the vote. I did like the idea that the actual winner was declared by how many people's minds they could change, but this less proved the validity of the 2nd Amendment (or not) and became more about which orator was more persuasive. There's a reason why Alan is such a great lawyer! He's not right, but he sure can drive home a point.

    • Comment Link enubus Wednesday, 27 November 2013 18:29 posted by enubus

      Hitler, Mao and Stalin were the greatest gun control advocates of the 20th Century and how many people did they kill when their respective governments took all the guns from the people? Millions!!!

      As to Australia and England, the foolish people allowed their misguided governments to take their guns and in both countries home invasion robberies went up 1000%. In the US gun owners save lives from the bad guys 2 million times a year.

    • Comment Link Robert Wednesday, 27 November 2013 00:06 posted by Robert

      Obviously it is antiquated. The 2nd Amendment says "arms" not small arms or firearms and applied to cannons in that time. So today that would include heavy artillery, tanks and even tactical nukes. Which most people would think that's a bad idea to have.

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