Alan Dershowitz and Sanford Levinson take on David Kopel and Eugene Volokh on the question of the historical context of the amendment itself and whether it has outlived its usefulness.
The nearly two-hour debate (podcast) put on by Intelligence Squared, takes a look at both sides of the issue, with Harvard’s Dershowitz and UT’s Levinson going up against Second Amendment luminaries consisting of UCLA’s Volokh and the Independence Institute’s Kopel.
Here are some brief talking points made in the debate (but be sure to do yourself a favor and listen to the whole unedited podcast to drink it in full context).
So, let me give you the two reasons why I think the Second Amendment has outlived its usefulness in the 21st century. The first reason is precisely that it is anti-federal. That is to say, one of the anomalies — sometimes very difficult to tell the players without a scorecard — in the debate about gun rights. There are many people who define themselves as conservatives who rail against a rampaging national government that believes in one-size-fits-all solutions to national problems. Well, this is not necessarily what Heller decides, but it is what the Supreme Court decided two years later in the McDonald case, where it held that every state in the union has to toe a single line.
Louis Brandeis spoke very eloquently of states as little laboratories of experimentation.
Most states have chosen to experiment in favor of gun rights. There are some states –or cities — very dense cities, like Washington, D.C., that would prefer different experiments. Or in New York itself, one can well imagine a particular policy for the great cities of New York and a very different policy for upstate New York, where there are far, far more hunters than is the case in Manhattan, say. And one of the things that a single national constitutional amendment — as interpreted by the Supreme Court — does is to stifle that kind of federalism. And I think that’s a mistake.
But there’s a second real problem with constitutionalizing the right to bear arms in the 21st century. As Mr. Rosenkranz suggested, the right to bear arms — or the Second Amendment — had a kind of cosmetic value until 2008. It’s not that people didn’t write about it. I wrote about it. Eugene wrote about it. A number of people found it very interesting. But it played remarkably little role in actual American law. Beginning with Heller, it does play a role. But what does that mean? It means that you turn over decision-making power to a group of federal judges who are highly divided, who have no expertise in this area, and who make often quite remarkable — even unreasoned –distinctions.
And so let me start with something I think we all agree on, on the panel. And I think probably virtually everybody — perhaps everybody in the audience agrees on too, and that is that there’s a basic human right to self-defense. And there are, of course,debates about the particular boundaries of that right. But there’s a core to that right that every state in the union recognizes. I’m sure it’s well-recognized outside the U.S. as well. If somebody is threatening you with imminent death, serious injury, rape, kidnapping, you’re entitled to use force, even deadly force, in order to defend yourself if that is necessary. That is very broadly agreed on. And I think it’s agreed on because it is a basic human right.
So I think there’s little difference about that. But then there’s the question — what does that right entail? And I want to argue that a right to self-defense,like other rights, entails the right, at least presumptively, to have the tools that are necessary to reasonably effectively defend yourself.
There should be a right of self-defense. So don’t you agree with me that it would have been better if the Second Amendment had been written as “Everybody has the right of self-defense” — then we could argue whether or not guns were necessary, what kinds of guns, what kinds of restrictions. You would also then have to debate whether or not guns were permissible for hunting, because hunting is not part of self-defense. The Second Amendment reads rather differently. It starts out by saying “A well-regulated militia, being necessary to the security of a free state,” then “the right of the people to bear and keep arms.” So, I think everybody would agree that the first clause of the Second Amendment, “well-regulated militia,” has outlived its usefulness. We do not have militias, state militias. They are as anachronistic as the Third Amendment, talking about that we can’t quarter troops. Now, that doesn’t mean that I would want to amend the Bill of Rights. I don’t want to amend the Third Amendment. I prefer to leave it there, because if you start amending the Third Amendment, Sandy will have a constitutional convention. And he’ll have people who might start amending the First Amendment, and the Fourth Amendment, and the Fifth Amendment.
So I’m happy to leave all the amendments there, as long as we acknowledge that the Second Amendment, like the Third Amendment, has outlived its usefulness.
Now, why is the Second Amendment necessary today? To protect people from local, bigoted governments. It was necessary in the civil rights era, when civil rights workers frequently had to arm themselves in the South for protection against the domestic terrorist organization known at the Ku Klux Klan, when local police were often complicit with the Klan. It’s why the Deacons for Defense and Justice were formed in Bogalusa, Louisiana in 1965, to successfully provide armed protection to organizations such as the Congress of Racial Equality. It was necessary in Washington, D.C., where Dick Heller spent every day as an armed guard at the Federal Judicial Center and was not allowed by the D.C. City Council to use any firearm in his home, ever, for lawful self-defense against a violent home invader.
It was necessary in Chicago, where Otis McDonald, a 70-year-old Korean War veteran received personal death threats from gangsters because of his anti-gang work.
And Chicago said, “Well, you can have a rifle or a shotgun.”
He knew how to use a rifle. He had been in the Korean War, but for his condition in the apartment he lived in with his physical strength and agility and the current status it was, the handgun was the right choice for him for self-defense, and the bigoted city council of Chicago would not allow him to use that, and that’s why the Second Amendment was necessary, and it’s necessary in New York City right now.
If you have a handgun permit in New York City,you can go on a trip. You can drive from Brooklyn all the way to Seattle and lawfully carry that gun in your car in every state across the country and it’s a good secure thing to have in case your car breaks down in the middle of the night someplace on a deserted road. But the New York City police department won’t let you take the handgun out of the city. There is no rational basis for that prohibition. It is purely for the oppression of gun owners to the detriment of self-defense. It is a dangerous law and a Second Amendment lawsuit will likely be necessary to remove that.