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A New Paradigm for the Second Amendment

Published online by Cambridge University Press:  28 October 2011

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.

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Forum: Comment
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): 461512Google 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): 325.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

3. United States v. Emerson, 270 F.3d 203 (5th Cir.), reh'g and reh'g en banc denied, 281 F.3d 1281 (5th Cir. 2001), cert, denied, 122 S. Ct. 2362 (2002).

4. Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).

5. Primus, Richard A., The American Language of Rights (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar; Yassky, David, “The Second Amendment: Structure, History, and Constitutional Change,” University of Michigan Law Review 99 (2000): 588688CrossRefGoogle Scholar; Cornell, “‘Don't Know Much About History.’”

6. Boyd, Julian P. et al., ed., The Papers of Thomas Jefferson, 28 vols. (Princeton: Princeton University Press, 1950–), 1:353.Google Scholar

7. Beccaria, Cesare, Of Crimes and Punishments (Philadelphia: Robert Bell, 1778)Google Scholar; Chinard, Gilbert, The Commonplace Book of Thomas Jefferson (Baltimore: Johns Hopkins Press, 1926), 314.Google Scholar On the influence of Beccaria more generally, see Lundberg, David and May, Henry, “The Enlightened Reader In America,” American Quarterly 28 (1976): 262–93CrossRefGoogle Scholar, and Lutz, Donald S., “The Relative Influence of European Writers on Late Eighteenth Century American Political Thought,” American Political Science Review 78 (1984): 189–97.CrossRefGoogle Scholar According to May, only slightly more than one-third of all libraries in the period 1777–90 contained a copy of the essay by Beccaria favored by Jefferson. In his study of the patterns of citation to various thinkers in published writing in the Founding era, Donald Lutz found that Beccaria accounted for about 1% of citations in the 1770s, 3% in the 1780s and 0% in the 1790s. Halbrook, Stephen, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984)Google Scholar; Barnett, Randy and Kates, Don, “Under Fire: The New Consensus on The Second Amendment,” Emory Law Journal 45 (1996): 1139–259.Google Scholar Both authors also make much of the decision of John Adams to quote another passage from Beccaria in the context of the Boston Massacre. Wroth, L. Kinvin and Zobel, Hiller B., eds., Legal Papers of John Adams, 3 vols. (Cambridge: Belknap Press of Harvard University Press, 1965), 3:242.Google Scholar For another individual rights scholar who falls into the Jeffersonian fallacy, see Powe, L. A., “Guns, Words, and Constitutional Interpretation,” William and Mary Law Review 38 (1997): 1311–103.Google Scholar

8. “Virginia Declaration of Rights,” in Founders' Constitution, ed. Kurland, Philip and Lerner, Ralph, 5 vols. (Chicago: University of Chicago Press, 1987) 1:6.Google Scholar Julian P. Boyd et al., eds., The Papers of Thomas Jefferson, 1:353.

9. Higginbotham, Don, “The Second Amendment in Historical Context,” Constitutional Commentary 16 (1999): 263–68Google Scholar; Rakove, Jack N., “The Second Amendment as the Highest State of Originalism,” Chicago-Kent Law Review 76 (2000): 129–32.Google Scholar

10. Cornell, Saul, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary 16 (1999): 221–46.Google Scholar

11. For examples of individual rights scholarship that might be characterized in these terms, see Kates and Barnett, “Under Fire,” and Lund, Nelson, “The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders,” Texas Review of Law & Politics 4 (1999): 157–91.Google Scholar For a sampling of alternate history science fiction, see Turtledove, Harry and Greenberg, Martin H., eds., The Best Alternate History Stories of the 20th Century (New York: Ballantine, 2001)Google Scholar; Dozois, Gardner and Schmidt, Stanley, eds., Roads Not Taken: Tales of Alternate History (New York: Del Rey/Ballantine Books, 1998)Google Scholar; Hellekson, Karen, “Toward a Taxonomy of the Alternate History Genre,” Extrapolation 41 (2000): 248–56CrossRefGoogle Scholar; and Rosenfeld, Gavriel, “Why Do We Ask ‘What If?’: Reflection on the Function of Alternate History,” History and Theory 41 (2002): 90103.CrossRefGoogle Scholar

12. Smith, Rogers, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997).Google Scholar

13. On the public and collective conception of the right of assembly, see Primus, American Language of Rights; on the jury as a collective and public right, see Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998).Google Scholar

14. Fischer, David Hackett, Historians' Fallacies: Toward a Logic of Historical Thought (New York: Harper & Row, 1970), 912.Google ScholarKopel, David B., “The Second Amendment in the Nineteenth Century,” Brigham Young University Law Review 4 (1998): 1393Google Scholar, which attacks Ehrman, Keith and Henigan, Dennis, “The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?University of Dayton Law Review 15 (1989): 558.Google Scholar

15. Story, Joseph, A Familiar Exposition of the Constitution of the United States (1842), 264–65.Google Scholar Reprint Boston: Harper Brothers, 1879.

16. Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery (1849). Reprint Miami: Mnemosyne, 1969.

17. An excellent introduction to Story's thought and his arguments with contemporaries may be found in, Newmyer, R. Kent, Supreme Court Justice Joseph Story: Statesmen of the Old Republic (Chapel Hill: University of North Carolina Press, 1985).Google Scholar

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.

19. On the jeremiad as an important American literary form, see Bercovitch, Sacvan, The American Jeremiad (Madison: University of Wisconsin Press, 1978).Google Scholar

20. Eisgruber, Christopher L., Constitutional Self-Government (Cambridge: Harvard University Press, 2001), 120–26.Google Scholar

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): 438554Google 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): 185214.Google Scholar

22. Uviller, H. Richard and Menkel, William G., The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent (Durham: Duke University Press 2002).CrossRefGoogle Scholar

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