Dershowitz, Volokh debate gun control and Second Amnd.


The debate on gun control was taken up again Tuesday evening in Austin North. Dennis Henigan, from the Brady Center to Prevent Handgun Violence, derided guns as “the only widely-available consumer product designed to kill,” while UCLA law professor Eugene Volokh insisted that handguns are the “middle-class and poor person’s substitute for an armed guard.” Prof. Alan Dershowitz provided a third point of view, asking for a broad reading of the Second Amendment while simultaneously proclaiming “a transcendent value to resolving disputes without weaponry.” Dean-designate Elena Kagan moderated the two-hour debate.

Henigan began the discussion by delineating the “militia view” and “individual rights view” of the Second Amendment. The militia view says that the Second Amendment protects only gun possession reasonably related to the preservation of a well-regulated militia. The individual rights view claims that all individuals may possess and bear arms whether or not they are involved with a militia. Henigan, who believes the militia view to be the correct constitutional interpretation, pointed out that while the Fifth Circuit has endorsed the broader individual rights view, the majority of circuits that have ruled on the matter have rejected this view.

Volokh initially ignored constitutional questions, choosing instead to rely on broader policy arguments and statistics. He argued that banning handguns would prevent law-abiding citizens from defending themselves, that a ban would not stop criminals from obtaining handguns and that only a small number of gun-related accidents would in fact be avoided. He also said that some gun control measures such as a ban on small, low-caliber guns could lead to criminals switching to more deadly, high-caliber weapons.

Dershowitz claimed that most people today would reject the Second Amendment as written. He went on to say that the question is how broadly or narrowly to read constitutional provisions and warned of the dangers of “constitutionalizing tragic choices” in order to avoid the political issue. Dershowitz went on to explain that it is important to keep rights questions in the public arena by reading constitutional provisions broadly rather than turning them over to the courts. He concluded that while he was personally against handguns, his broad reading of the Second Amendment meant that he had to accept the “individual right to ownership of guns” subject to regulation.

In response to Kagan’s invitation to respond to Volokh’s arguments, Henigan claimed that debates on banning handguns are irrelevant. He describes actual gun control proposals as much more modest, dealing with things such as background checks. Volokh addressed constitutional arguments, arguing that the Second Amendment was meant to prevent the state and federal governments from having a monopoly on force and that the term “militia” was to be applied to the larger citizenry. He also noted that he saw gun control advocates’ modest proposals as the first steps on a slippery slope, but that if he could be sure they would go no further, he would probably support them.

The debate was sponsored by the HLS Target Shooting Club and the HLS Democrats. Three-Ls Sasha Volokh and Danny Swanson were responsible for bringing the speakers to campus.

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