2A Debate with Alan Dershowitz

[Craig_AR]

Harvard Law Professor Emeritus Alan Dershowitz is a classic liberal (not a modern progressive "liberal") whose ethical positions on interpretation and application of the Constitution and laws are admirable. He disagreed with President Trump on many major public policy positions, yet agreed to defend (successfully) the president in the Senate impeachment trial.

On his video blog, The DerShow, he recently dove into the Second Amendment debate, first giving his own interpretation, then opening up to many callers for a true debate. His interpretation is that the 2A depends completely on the phrase regarding militia, saying that makes the regulation of arms proper. He further addresses the history that the Bill of Rights as written only applied to the federal government, and there are arguable details on how the 14th Amendment subsequently applied the Bill of Rights to the State governments.
He has released a truly well developed debate, with no cancel culture approach and no ad hominem attacks. I recommend listening to the nearly three hours of this debate on several of his blog posts:

What Does the "Right To Bear Arms" Actually Mean? March 23, 2021 - 48 minutes
Callers Take Aim at my 2nd Amendment Views but I Stick to my Guns March 24, 2021 - 51 minutes
Callers Take Aim: Round 2 March 25, 2021 - 47 minutes
and the conversation continued in the caller questions portion after his primary topic in
Can a Psychiatrist Ethically Diagnose Someone She Never Met? Dr. Brandy Lee did, and she was fired. March 26, 2021 - 38 minutes

I agree with some of Professor Dershowitz on some issues, disagree with him on others, and admire him greatly for his intellect, dedication, and true ethical basis for legal analysis.

Moderators, please move this thread to Legal if it is more appropriate there.

Craig_

 

[1942bull]

Alan Dershowitz has the credentials to take informed positions on Constitutional issues. However, as I recall, the Heller Decision among other things decided that 2A protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Quoting from the OP: “His interpretation is that the 2A depends completely on the phrase regarding militia, saying that makes the regulation of arms proper.”

Scalia who wrote the decision carefully pointed out that the prefatory militia language was not the the basis of RTKBA. Instead the RTKBA was so that militias could be constituted to protect the people from the government is need arose. I can’t see a connection between the prefatory militia language and the right to regulate. So I will listen to AD’s opinion.

 

[Carl N. Brown]

Alan Dershowitz on the Piers Morgan show FALSELY claimed the NRA paid for John Lott's pro gun rights/anti gun control research.
That is an absolute LIE. John Lott has never been given research funds by NRA.
One of the early criticisms of John Lott offered by anti-gunners was that NRA would not cite his gun research, but instead cited Don B Kates, Roy Ennis and Gary Kleck instead.
Lott's gun research was funded by the same John M. Olin Foundation that funded John J. Donohue's research supporting gun control, questioning gun rights, and attacking John Lott. And while the Olin family at one time owned Winchester, why would Winchester fund research by both Lott and Donohue if the funding was based on POV? Chuck Schumer used the Olin Foundation grant for Lott to attack the legitimacy of Lott's research, but somehow that does not de-legitimize Donohue's research supporting the opposite conclusion.

I have as little respect for the opinions of Alan Dershowitz as I have for the opinions of US Supreme Court Justice Holmes JUNIOR who opined that questioning the draft in WWI was akin to shouting fire in a theater and causing a panic, and who defended the abominable Racial Integrity and Sterilization Acts of Virginia (1924). Yeah, those acts were based on SCIENCE!!!! Eugenics and Evolution! Hitler adopted their arguments.

The Federal Constitution protected the right to keep and bear arms because government of the people, by the people, for the people, depends upon protection by the people themselves: volunteers trained in the use of arms, the constitutional militia: the antithesis of the Hobbesian absolute state guaranteed by Hessians loyal to the state. Protection of a militia raised from a people familiar with arms is not inconsistent with protection of all traditional lawful uses of arms: not just civilian marksmanship training for potential military service, but self-defense, defense of livestock from predators, recreational shooting, collection as curios or ornaments, and other legitimate uses cited by Tennessee in support of Article I Section 26 of the state constitution RKBA.

 

[Craig_AR]

Alan Dershowitz on the Piers Morgan show FALSELY claimed the NRA paid for John Lott's pro gun rights/anti gun control research.

From 2012,
Get To Know Piers Morgan

“There’s no evidence that I’m aware of that guns protect liberty. There’s no evidence that I’m aware of that guns reduce crime,” bellowed Dershowitz, who openly supports repealing the Second Amendment. “The likelihood that somebody in the family will be killed if there’s a gun in the house is much higher than that the person will use the gun to protect his family.”
Lott, who has held research positions at some of the country’s greatest institutions, fired back: “You’re not a statistician.”
He was interrupted, however, as Dershowitz called his research “junk science…paid for by the National Rifle Association."
Enraged by this accusation, the author of the controversial book “More Guns, Less Violence” implored Dershowitz to revoke his statement:
“The NRA hasn’t paid for my research,” said Lott, whose work was published by the University of Chicago Press. “That’s simply ridiculous.”​

 

[Carl N. Brown]

Alan Dershowitz is just as human and fallibile as the rest of us. Right on some things. Wrong on others.

 

[DoubleMag]

Individual Right
Individual Choice

The Individual...States have more authority to declare laws against a right.

 

[GEM]

The contents of his arguments is up for discussion, opinions of him as a person aren't. He is not a friend of the Second Amendment and people equally educated and credentialed are. That's all I need to know about him.

 

[FROGO207]

Just think of the good he could do if he was FOR the second amendment. I often wonder if some of these people take a side just to be able to argue because that might show they are intellectually superior even though they are dead wrong on an issue.

 

[CraigC]

Dershowitz has had some positive things to say in the last few years but I just can't lend any credibility to anyone who thinks "well regulated militia" is a justification for gun control laws. You're not much of a constitutional scholar if you honestly believe that. Shows a complete lack of perspective or understanding of the context in which the amendment was written.

 

[SwampWolf]

Dershowitz has had some positive things to say in the last few years but I just can't lend any credibility to anyone who thinks "well regulated militia" is a justification for gun control laws. You're not much of a constitutional scholar if you honestly believe that. Shows a complete lack of perspective or understanding of the context in which the amendment was written.

Completely true. Some seem to forget that the genesis for the Second Amendment is to give the citizenry the means to overthrow a tyrannical government as advocated in the Declaration of Independence: "...That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,-that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness...
"It is their right, it is their duty [emphasis mine], to throw off such Government, and to provide new Guards for their future security..."
It should be self-evident that you can't depose a tyrannical government and reinstitute a democratic republic without the people having the right to keep and bear arms. Just ask the unfortunate oppressed citizens of China, North Korea, Cuba, Syria and Iran, to name a few.

 

[SwampWolf]

Alan Dershowitz is just as human and fallibile as the rest of us. Right on some things. Wrong on others.

Just because all of us are inherently imperfect people is no excuse for being wrong when you are. And when you're wrong, the very least you can do is to own your error; not use a lie to defend your debatable position.

 

[Monac]

Just because all of us are inherently imperfect people is no excuse for being wrong when you are. And when you're wrong, the very least you can do is to own your error; not lie to defend your debatable position.

I took what Carl N. Brown said to mean that Dershowitz, by being human, is therefore capable of error - i.e., he is not infallible. Brown may also be pointing out the fallacy of the "argument by authority". He did not seem to me to be arguing that being fallible makes it OK for Dershowitz to be wrong.

Or perhaps I am wrong about that; if so, could you show me how?

(I personally think that Dershowitz has been badly wrong about a number of significant things in recent years, but that is neither here nor there.)

 

[SwampWolf]

Carl N. Brown made the point that Dershowitz lied (claiming that researcher Lott was given funds by the NRA to support his research) to enhance his position on the Second Amendment debate (and apparently never admitted to lying). I was just trying to make the point that you can't hide behind the axiom "to err is human" and hope that because it's our fallible nature, a lie finds an excuse for being wrong. It seems that my wording was too, imperfect.

 

[SunnySlopes]

It seems that my wording was too, imperfect.

No, I understood perfectly what you said and you're right.

 

[army_eod]

2A is not negotiable or up for debate

 

[Monac]

2A is not negotiable or up for debate

Really? Huh. A lot of people were saying that about slavery back around 1860. They turned out to be wrong.

Look, if it has to do with the law or the Constitution, it darn sure is up for negotiation or debate, because it is a rule we make for governing ourselves. It is a law of man, not nature. Taking your position cuts you out of the lawmaking process if enough people want it changed. You can suit yourself, but it may not work out in your favor. It did not for the pro-slavery folks.

 

[army_eod]

Last I checked, slavery was not in the Bill of Rights.

 

[Monac]

Last I checked, slavery was not in the Bill of Rights.

You go argue with the Supreme Court about the Dred Scott decision then, because it made slavery effectively a right everywhere in the United States. It was like the Second Amendment, only more so.

Also, being clever about slavery does not address my main point, which is that laws we make to govern ourselves are not absolutes. Acting like they are is not a road to anywhere you want to go. That was my point in talking about 1860.

No, slavery is not an exact legal analogy for gun rights. But lot of people who were for slavery were declaring absolute and non-negotiable positions about it, and that turned out to be a very bad idea. I am suggesting the same might be true here.

 

[Steve S.]

I don’t know fellows, maybe I have a very simple mind or maybe the 2A is just overthought by people who fancy themselves of education, history and culture. We can all read; the 2A states that the right of the “people” (not the militia or any other entity) to keep and bear arms shall not be infringed - it finalizes the previous and sets an absolute. It reads simply to this simple mind. How else can it be interpreted in a document by “We the people.....” (not we the militia) - simple stuff and simple reading to me but I am sure that the debate by those of culture and education and power and agenda will continue the debate - KISS.

 

[stillquietvoice]

How else can it be interpreted in a document by “We the people.....” (not we the militia) - simple stuff and simple reading to me but I am sure that the debate by those of culture and education and power and agenda with continue the debate - KISS.

It could read we the militia, considering that the militia was made up of we the people.

 

[CraigC]

Some people just find it impossible to put themselves in another's shoes. Whether that someone else lives in another state, another country or another time. For a lot of folks, particularly urbanites, taking up arms and risking EVERYTHING to overthrow a tyrannical and corrupt government is unfathomable. Plus they'd rather be comfortable first, free second.

 

[Monac]

Some people just find it impossible to put themselves in another's shoes. Whether that someone else lives in another state, another country or another time. For a lot of folks, particularly urbanites, taking up arms and risking EVERYTHING to overthrow a tyrannical and corrupt government is unfathomable. Plus they'd rather be comfortable first, free second.

This getting political. In a functioning democracy, it should not be necessary to take up arms to resist tyranny. That is done by voting, or by peaceful demonstrations. In that case, the people who take up arms and resort to violence are those supporting tyranny, because they are not willing to abide by majority rule. (Once again, this was something the pro-slavery people did in 1861.)

I think our democracy has problems, but I feel they result from things that defy majority rule, like the the way Senate seats are distributed, and as a consequence of that, the way the Electoral College works. I think the solution to our problems is MORE democracy. I hope that is not a political opinion that forces the thread to be closed.

 

[CraigC]

I was referring to 1776.

That is not what happened in 1861 but that’s a topic for another time.

 

[Monac]

I was referring to 1776.

That is not what happened in 1861 but that’s a topic for another time.

Oh, yes, in 1776, people took up arms because they did NOT live in a functional democracy, and wanted to. I hope there is another time, because I would like to learn more about what really happened in 1861.

 

[Agsalaska]

He is sort of right, but in the wrong context. Im not sure I can explain it tonight, but the flaw in his argument is his application of the word 'militia'

Yes the greater idea was to have organized militias. But anyone who thinks the founders meant to restrict private citizens is trying to connect two dots that were not meant to be connected.

Maybe I am not saying that right. I will try again tomorrow.