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A New Paradigm for the Second Amendment

Published online by Cambridge University Press:  28 October 2011

Saul Cornell
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Extract

Second Amendment scholarship has become mired in an intellectual quagmire. Contemporary debate over this provision of the Bill of Rights has been cast in terms of a simple dichotomy: either the Second Amendment protects an expansive individual right similar in nature to freedom of the press or it protects a narrow right of the states to maintain a well-regulated militia. Partisans of the individual rights view argue that the Second Amendment was designed to affirm a basic individual right to own firearms for hunting, recreation, and personal protection. The other view of the amendment, often described as the collective rights view, argues that the amendment was about the allocation of military power in the federal system. According to this view, the Second Amendment was a modest concession to moderate Antifederalists who feared the power of the new federal government. By affirming the right of the people to bear arms as part of a well-regulated militia, Federalists assuaged lingering Antifederalist qualms about the future of the state militias.

Type
Forum: Comment
Information
Law and History Review , Volume 22 , Issue 1 , Spring 2004 , pp. 161 - 167
Copyright
Copyright © the American Society for Legal History, Inc. 2004

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References

1. For introductions to this body of scholarship, see Cottrol, Robert J., ed., Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Westport, Ct.: Garland Publishing, 1994)Google Scholar; Reynolds, Glenn Harlan, “A Critical Guide to the Second Amendment,” Tennessee Law Review 62 (1995): 461–512Google Scholar; Cornell, Saul, ed., Whose Right to Bear Arms Did the Second Amendment Protect? (Boston: Bedford/St. Martin's, 2000)Google Scholar; and Bogus, Carl T., “The History and Politics of Second Amendment Scholarship: A Primer,” Chicago Kent Law Review 76 (2000): 3–25.Google Scholar

2. Second Amendment scholarship is a classic example of Thomas Kuhn's theory of paradigm change. See Kuhn, Thomas S., The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962)Google Scholar, and Hollinger, David, “T. S. Kuhn's Theory of Science and Its Implications for History,” American Historical Review, 78 (1973): 370–93.CrossRefGoogle Scholar For a concise overview of the origins of the current paradigm crisis in Second Amendment scholarship, see Cornell, Saul, “‘Don't Know Much About History’: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky Law Review 29 (2002): 657–81.Google Scholar

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18. Story, Familiar Exposition, 264–65. On the decline of the militia as an institution in the early republic, see Mark Pitcavage, “An Equitable Burden: The Decline of The State Militias, 1783–1858,” Ph.D. Diss., Ohio State University, 1995.

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21. Several gun rights advocates have suggested recreating the militia, but usually ignore the intrusive nature of the kinds of regulation necessary to create a well-regulated militia. See Kopel, David and Little, Christoper, “Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition,” Maryland Law Review 56 (1997): 438–554Google Scholar, and Denning, Brannon P., and Reynolds, Glenn Harlan, “It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing,” William and Mary Bill of Rights Journal 5 (1996): 185–214.Google Scholar

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