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A New Paradigm for the Second Amendment

Published online by Cambridge University Press:  28 October 2011


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.

Forum: Comment
Copyright © the American Society for Legal History, Inc. 2004

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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

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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

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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.

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