I wrote a post on guns about a year ago, so it seems fitting to revisit the topic.

A somewhat recent debate from the Intelligence Squared series focused on the “usefulness” of the Second Amendment. The debate itself was fun to watch, despite the fact that there wasn’t much clash. A few thoughts:

• Sandy Levinson is thoughtful and articulate, and as the moderator highlights at one point, much too timid to debate with people like Dershowitz or Volokh. Dershowitz unsurprisingly was a huge troll, but compared to the others, reminded me most of a policy debater. Kopel and Volokh are two reasonably intelligent individuals who spent half their time arguing against gun control and the other half responding to Dershowitz’s trolling; unfortunately, neither of these were directly relevant to the constitutional question posed by the resolution.
• Levinson makes the Brandeis “state = laboratory” argument, suggesting that political processes, especially at the state level, are the best way to tackle gun control questions. Judges have no particular training that equip them with the necessary expertise to adequately decide these questions, and Levinson notes how arbitrary it is for a justice like Scalia to define excluded groups.¹ Of course, just as it seems a bit odd that judges are getting into the specifics of how laws can govern gun ownership and use, one need only look at Roe v. Wade to see Blackmun demonstrate his extensive background in biology. Basically, judicial activism runs both ways.
• Volokh makes the interesting point that the presence of the Second Amendment is useful because it helps temper debate. That is, by having the Second Amendment, reasonable conversations about gun control can take place: gun owners can feel certain that their fundamental right to own a gun cannot be taken away. In a vacuum, this probably makes sense, but as Dershowitz points out, this theoretical assertion doesn’t pan out very well in reality. Consider the failure of background checks in the Senate. Volokh counters by arguing that it failed because of the threat of an assault weapon ban, which “poisoned the well” and put gun owners on the defensive. This is a weak rebuttal at best, since this is exactly the kind of scenario² where one would assume the tempering effect would kick in. Even if Volokh is directionally accurate (which doesn’t seem difficult to prove), the magnitude of the tempering effect might be quite small after all. Again, in the world of abortion rights, the Ninth and Fourteenth Amendments, as well as the jurisprudence of Roe, doesn’t seem to reassure pro-choice advocates that abortion rights are secure at all.³ In this regard, pro-choice individuals and gun owners probably view restrictions quite similarly: with extreme suspicion and paranoia.

If I were to judge the debate, I’d vote on Dershowitz’s uncontested argument about why it makes little sense to constitutionally enshrine a “derivative” right (the right to bear arms) v. a “basic” right (the right to self-defense). Besides, Volokh’s concession on what a modern-day Second Amendment would look like (it wouldn’t include any language relating to militias or hunting, and would explicitly call out the right of self-defense) pretty much conceded at least half of the resolution.