Alan Dershowitz Says That The Second Amendment Is A Failed Experiment

Alan Dershowitz at a rally in New York's Times Square on July 22, 2015. (AP - Photo by Anthony Behar)

Alan Dershowitz is an American lawyer, jurist, author, and political commentator. He is a prominent scholar on United States constitutional law and criminal law, and a leading defender of civil liberties, except when he takes on the formidable issue of guns and the 2nd Amendment. While Professor Dershowitz is well respected on a multitude of constitutional issues, his view of the 2nd Amendment will have many Americans “up in arms.”

“We have tried an experiment for the last 250 years and it’s failed miserably and we have to start a new approach. The new approach has to be guns should not be available to people generally, except if they have a significant need.

“If I could write the Bill of Rights over again, I would skip amendment number two. We’re the only country in the world that puts in our Constitution the right to bear arms. It’s an absurd thing to be in our Constitution, but it’s in our Constitution. We have to live with it.”

I don’t claim to be a constitutional scholar, but I do know how to fact check. For the vast majority of American history, universal and unregulated gun ownership has been a non-issue. Up until the 1960s we had a society based on the “presumption in favor of gun ownership,” then the “Summer of Love,” racial integration, war protests and the violence/turmoil that surrounded those societal changes created a shift towards the “presumption against gun ownership.” Since the Gun Control Act of 1968 we have had ever increasing levels of gun control legislation being imposed on both state and federal levels. Until recently, public opinion favored gun control over gun rights as well. It could easily be argued that Professor Dershowitz’s “presumption against gun ownership” has been a 50 year experiment that has failed rather than a failure of the 2nd Amendment.

“Guns have to be well regulated and they are not well regulated in this country. We’re going to have these kinds of massacres over and over and over again until we change the gun culture and the National Rifle Association is part of the problem, not part of the solution,”

Line by line explanation of 2nd Amendment by gun rights group - Cold Dead Hands. (image source:

Line by line explanation of 2nd Amendment by gun rights group – Cold Dead Hands.
(image source:

He said, invoking the much maligned phrase in the 2nd Amendment, “well-regulated.” It has been pointed out by several historical, constitutional and linguistic scholars that the phrase “well-regulated” meant something very different at the time the 2nd Amendment was written than it does to most people today. You can find a well written and researched explanation of that difference here: 2nd Amendment: A Well Regulated Militia… (note: in the interest of full disclosure, I know it is well researched because I wrote it) In short, “well-regulated” meant nothing more than in good or proper working order. A properly functioning, or well-regulated, militia is also completely separate from the right of “the people” to keep and bear arms.

Finally, the focus on “gun deaths” in America. Yes America has more guns per capita than any other country. America also has the 3rd largest population in the world behind China and India. That being said, although our “gun deaths” are higher than “other developed countries,” our overall homicide rate (4.7 per 100,000 in 2012 and estimated at 4.2/100K today) is below the global average (6.2 per 100,000) and puts the U.S. below 110 other countries with higher homicide rates. In addition, our homicide rate has been steadily dropping for the last 20 years despite a dramatic increase in gun sales, gun ownership and the passage of both licensed carry and unlicensed (constitutional) carry across the nation.

In the United States and globally, there are two factors that account for the vast majority of death in the world. The number one cause of homicides in the world is political unrest, ie. oppressive regimes, civil wars, territorial disputes, etc. A close second is crime, especially drug-related crime. Ironically, those are the two most significant reasons behind the inclusion of the 2nd Amendment into our Constitutional Bill of Rights; to provide personal protection of the individual from crime and protection of the entire citizenry from tyranny and oppression. With all due deference to Professor Dershowitz, it would appear that the facts support a much different view than his own.

“We have to have a major change in the gun culture and as long as the National Rifle Association — which you have to give credit, it’s the most effective lobby in the country — as long as they continue to be as effective in their lobbying, it’s just not going to happen and these murders are going to continue.”

He referenced his remarks in light of recent mass shooting tragedies, but in almost every case of such an incident it is not a proliferation of guns, mental illness or even criminality that results in the mass casualties. It is a proliferation of disarmed available victims that creates such tragedy. Many have given up their right to bear arms willingly for altruistic reasons and many have been disarmed and victimized by government mandate that certain areas be “gun free.” The “presumption against gun ownership” that Professor Dershowitz seeks already exists despite the NRA’s massive lobbying efforts, gun owners are the minority in America. That fact is changing as gun ownership booms and murder rates are declining in the process.


About the Author

Jon Britton
Joining the U.S. Air Force right out of high school, Jon had the opportunity to experience many different parts of the world and different cultures. His post military career path, both white collar and blue collar, allowed him to work alongside both CEOs and average Joes. "Writing was never a goal or even vaguely contemplated as a career choice, it just happened, an accidental discovery of a talent and a passion." A passion that has taken him in many directions from explorations of the zombie subculture and writing zombie stories to politics and News. He is an avid "people watcher," political junkie and has a ravenous appetite for history and current events alike.