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Journal Article

The Second Amendment and the historiography of the Bill of Rights

01 Jan 1993-Journal on firearms and public policy (Second Amendment Foundation)-Vol. 5, Iss: 1, pp 67-137
TL;DR: The second amendment protects a collective right, a narrow guarantee of a state right to maintain organized reserve military units as discussed by the authors, and the subsequent recognition of the people's right to bear arms is a mere restatement of this collective (i.e., state) right.
Abstract: That there is controversy surrounding the interpretation of the second amendment, or any provision of the Bill of Rights, is hardly surprising. While the disputes relating to the first, fourth and remaining amendments focus upon their detailed application, the conflict over the second amendment concerns the question of its very subject matter. One school of thought contends that the second amendment protects a collective right, a narrow guarantee of a state right to maintain organized reserve military units. This interpretation emphasized the phrase "A well regulated militia being necessary to a free state," and maintains that the subsequent recognition of the people's right to bear arms is a mere restatement of this collective (i.e., state) right. The other school of thought contends that the amendment recognizes an individual right to possess and use arms. This interpretation emphasizes the phrase "the right of the people to keep and bear arms shall not be infringed," and maintains that the preceding description of the militia (i.e., all individuals capable of arms bearing) is a mere explanation of one objective of this guarantee. The works of neither school entertain the possibility that an "either/or" test may be a gross oversimplification of what are in fact two different sets of constitutional priorities.
Citations
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Journal Article
TL;DR: Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African-American history as mentioned in this paper, particularly those concerning self-defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection.
Abstract: Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African-American history. With the exception of Native Americans, no people in American history have been more influenced by violence than blacks. Private and public violence maintained slavery. The nation's most destructive conflict ended the "peculiar institution." That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence and abetted by Supreme Court sanction Jim Crow was sustained by private violence, often with public assistance. If today the memories of past interracial violence are beginning to fade, they are being quickly replaced by the frightening phenomenon of black-on-black violence, making life all too precarious for poor blacks in inner city neighborhoods. Questions raised by the Second Amendment, particularly those concerning self-defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection, thus take on a peculiar urgency in light of the modern Afro-American experience.

55 citations

Journal ArticleDOI
TL;DR: For example, the authors argues that the political science of Thomas Jefferson owes much, if anything, to the speculation of Niccolo Machiavelli, even though the Virginian appears to have mentioned the Florentine by name but once, and did so in a manner conveying his disdain for the author of The Prince.
Abstract: On the face of it, there would seem to be little evidence suggesting that the political science of Thomas Jefferson owed much, if anything, to the speculation of Niccolo Machiavelli. The Virginian appears to have mentioned the Florentine by name but once, and he did so in a manner conveying his disdain for the author of The Prince. And yet, as I try to show in this article, Jefferson's commitment to limited government, his advocacy of a politics of distrust, his eager embrace of a species of populism, his ultimate understanding of the executive power, and the intention guiding the comprehensive legislative program that he devised for Virginia make sense only when understood in terms of the new science of republican politics articulated by Machiavelli in his Discourses on Livy.

41 citations

Journal ArticleDOI
TL;DR: The authors rebuts charges made in Gun Crazy, an article which asserts that the near-unanimous consensus supporting the individual rights view of the Second Amendment among historians and legal scholars is the result of a sinister concerted effort by pro-gun professors and fellow travelers.
Abstract: This article first rebuts charges made in Gun Crazy, an article which asserts that the near-unanimous consensus supporting the individual rights view of the Second Amendment among historians and legal scholars is the result of a sinister concerted effort by pro-gun professors and fellow travelers. Compelling textual, structural, historical, and criminological evidence supports the new consensus. The article then examines the merits of the interpretation proffered by opponents of an individual right to keep and bear arms: the militia-centric conception of the Second Amendment. Textual, historical, and structural considerations all argue against such an interpretation. Finally, the issue that is really motivating those who reject an individual rights interpretation in favor of a militia-centric conception of the Second Amendment is identified: the allegedly adverse effect of gun ownership on public safety.

22 citations


Cites background from "The Second Amendment and the histor..."

  • ...[248] Levin, supra note 13, at 346-47 n....

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  • ...By guaranteeing individuals the right to have arms for self-defense it also protects the collective arms of the militia, which consists of the military-age male citizenry bearing their own arms.[248]...

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Journal Article
TL;DR: The authors concluded that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment, and they also pointed out that such arguments are not tenable in practice.
Abstract: Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment. Language: en

16 citations

Journal Article
TL;DR: Funk examines unique characteristics of "Saturday Night Specials" which are said to make them more appropriate for prohibition than other firearms and makes the case that a ban on low-cost handguns may amount to unconstitutional discrimination against the poor or minorities as discussed by the authors.
Abstract: Ever since the beginning of the modern gun control debate, in the 1960s, prohibitions on small, inexpensive handguns -- so-called "Saturday Night Specials" -- has been a central issue. In this article, Markus Funk examines unique characteristics of "Saturday Night Specials" which are said to make them more appropriate for prohibition than other firearms. In addition, he makes the case that ban on low-cost handguns may amount to unconstitutional discrimination against the poor or minorities. A slightly different version of this article was originally published in 1995 in volume 8 of the Journal of Criminal Law and Criminology, beginning at page 764; this article is reprinted with permission.

15 citations

References
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Journal ArticleDOI
TL;DR: The Contagion of Liberty 1. Slavery 2. Establishment of Religion 3. Power and Liberty: A Theory of Politics IV. The Logic of Rebellion A Note on Conspiracy V. Sovereignty VI. Fulfillment.
Abstract: I. The Literature of Revolution II. Sources and Traditions III. Power and Liberty: A Theory of Politics IV. The Logic of Rebellion A Note on Conspiracy V. Transformation 1. Representation and Consent 2. Constitution and Rights 3. Sovereignty VI. The Contagion of Liberty 1. Slavery 2. Establishment of Religion 3. The Democracy Unleashed 4. "Whether Some Degree of Respect Be Not Always Due from Inferiors to Superiors" Postscript. Fulfillment: A Commentary on the Constitution Index

1,381 citations


"The Second Amendment and the histor..." refers background in this paper

  • ...[9] Indeed, modern students of this movement maintain that the Framers were immersed in Classical Republican thought:...

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Book
01 Jan 1967
TL;DR: The Contagion of Liberty 1. Slavery 2. Establishment of Religion 3. Power and Liberty: A Theory of Politics IV. The Logic of Rebellion A Note on Conspiracy V. Sovereignty VI. Fulfillment as discussed by the authors.
Abstract: I. The Literature of Revolution II. Sources and Traditions III. Power and Liberty: A Theory of Politics IV. The Logic of Rebellion A Note on Conspiracy V. Transformation 1. Representation and Consent 2. Constitution and Rights 3. Sovereignty VI. The Contagion of Liberty 1. Slavery 2. Establishment of Religion 3. The Democracy Unleashed 4. "Whether Some Degree of Respect Be Not Always Due from Inferiors to Superiors" Postscript. Fulfillment: A Commentary on the Constitution Index

1,244 citations

Book
01 Jan 1971
TL;DR: Tables of statutes and cases, Kings and Queens of England since 1066 and abbreviations are given in this article, where real property: Feudal Tenure. Real Property: Inheritance and Estates.
Abstract: Tables of statutes and cases, Kings and Queens of England since 1066 and abbreviations. Law and Custom in early Britain. Origins of the Common Law. Superior Courts of Common Law. Forms of Action. Jury and Pleading. Court of Chancery and Equity. Conciliar Courts. Ecclesiastical Courts. Judicial Review of Decisions. Legal Profession. Legal Literature. Law Making. Real Property: Feudal Tenure. Real Property: Feudalism and Uses. Real Property: Inheritance and Estates. Real Property: Family Settlements. Other Interests in Land. Contract: Covenant and Debt. Contract: Assumpsit and Deceit. Quasi-contract. Property in Chattels Personal. Negligence. Nuisance. Defamation. Economic Torts. Persons: Status and Liberty. Persons: Marriage and its Consequences. Pleas of the Crown: Criminal Procedure. Pleas of the Crown: Substantive Criminal Law. Appendices: Specimien Writs. Specimen Entries.

580 citations


"The Second Amendment and the histor..." refers background in this paper

  • ...Coke's language led to his removal as Chief Justice, [115] and his holding was overruled by proclamation, [116] but his words became sacred writ to the Americans....

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Book
01 Jan 1957

328 citations


"The Second Amendment and the histor..." refers background in this paper

  • ...[113] Few dicta have had as great an impact on legal history as the equivocal passage Coke slid into Dr....

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Book
01 Jun 1974
TL;DR: In this paper, a leading scholar of the eighteenth century uses diaries, personal correspondence, newspapers, and legislative records to examine the ways in which an understanding of the nature of history influenced the thinking of the Founding Fathers.
Abstract: In a landmark work, a leading scholar of the eighteenth century uses diaries, personal correspondence, newspapers, and legislative records to examine the ways in which an understanding of the nature of history influenced the thinking of the Founding Fathers.

131 citations


"The Second Amendment and the histor..." refers background in this paper

  • ...[8] The works most crucial to this recognition were: Pamphlets of the American Revolution (B....

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  • ...[8] These "Classical Republicans" (largely identified with the Whig Party) contributed greatly to late eighteenth century American political thought....

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