CornellSaul.htm

Constitutional History After the New Cultural History: A New Paradigm for the Second Amendment
Saul Cornell The Ohio State University
The Current State of Second Amendment Scholarship

"Copyright, 2001, Saul Cornell, All rights reserved. This document is a draft for a presentation at the SHEAR Annual Meeting in July 2001 and is reproduced here for criticism and comment only. Please do not copy or quote from it in a scholarly work. Inquire with author regarding revised versions."

No topic in American constitutional history has undergone a more radical transformation in recent years than the Second Amendment. For most of the twentieth-century courts and legal scholars were in accord that the amendment protected the right of states to maintain well-regulated militias and did not provide constitutional safeguards for an individual right to own guns.¹ The publication of Sanford Levinson's influential 1989 Yale Law Journal article, "The Embarrassing Second Amendment" marked an important turning point in the debate.² Levinson took legal scholars to task for ignoring the Second Amendment as a serious subject for scholarly investigation and concluded that Second Amendment not only protected an individual right to own guns, but he argued that the Founders viewed this right as part of a checking function analogous to the First Amendment's understanding of freedom of the press. According to this new interpretation, the Second Amendment protects an expansive individual right to own firearms enjoyed by all citizens not just members of the National Guard. Finally, this new paradigm argues that the Second Amendment incorporated a right of Revolution into the Constitution. Critics of this theory have described it as an insurrectionary view of the Second Amendment.³ In the wake of Levinson's article, legal scholar David Williams concluded that a new consensus was emerging. "Virtually all modern Second Amendment theorists," Williams suggested, believed "that one purpose of the provision was to make resistance to the federal government possible."⁴ Since the publication of Levinson's influential revisionist account of the Second Amendment a host of other legal scholars have entered the fray and much of this scholarship supports the new more expansive individual rights view of the Second Amendment. A number of legal scholars have gone so far as to proclaim that scholarly debate over the Second Amendment is effectively over. Glenn Harlan Reynolds one of the most outspoken revisionists, confidently proclaimed a new Standard Model for the Second Amendment had emerged. In Reynolds view "the overall framework for analysis, the questions regarded as being clearly resolved, and those regarded as still open, are all generally agreed upon. This is certainly the case with regard to Second Amendment scholarship."⁵ Reynolds and his allies in the legal academy have effectively promulgated their interpretation in a variety of formats, including the press and the web. Praise for this new revisionist view of the Second Amendment has heralded by gun rights groups, lauded on the editorial pages of the Wall Street Journal and has even been embraced by some left leaning radicals who view it as evidence that the American constitution can no longer provide a workable model of government for the new millennium.⁶Three constituencies within the legal academy were drawn to the Standard Model: gun rights advocates, libertarians, and contrarians within the legal academy looking to make a bold revisionist splash among their academic peers.⁷ Student edited law reviews provided a fertile breeding ground for revisionist scholarship.⁸ The conversion of the influential liberal legal scholar Lawrence Tribe to the individual rights view of the Second Amendment became a newsworthy even that provided further credence to the idea that the new view of the Second Amendment was now the current orthodoxy.⁹Historians showed little if any interest in rise of the Standard Model until Garry Wills blasted its supporters in a highly polemical essay in The New York Review of Books.¹⁰ Historical neglect of this issue can be attributed to several factors. The rise of social history and cultural history over the last generation not only over-shadowed more traditional topics in political, intellectual, and constitutional history, but among some younger scholars constitutional history fell into disfavor, tainted by its allegedly elitist orientation.¹¹ The one notable exception to this rule has become constitutional history focused on questions of gender and race which continue to enjoy considerable cache. Issues such as federalism or the right to bear arms, by contrast, were generally neglected by younger historians.¹²The fortunes of the Second Amendment became another casualty in the now moribund scholarly battles over the relative importance of republicanism and liberalism in American culture.¹³ As long as the Second Amendment could be used as a window into a larger problem in American history, such as the ideological character of early American political thought and culture, it was an appropriate topic for scholarly investigation. Ironically, the emergence of a more pluralist conception of early American political culture, one that recognized the existence of multiple discourses in the Founding era, meant that the ideological interpretation of politics lost much of its explanatory power. As scholars discovered a myriad of different variants of republicanism and came to recognize that republican and liberal ideas could co-exist in host of different combinations, the analytical value of the republican paradigm collapsed. While the Second Amendment might be useful as a window on American culture, it was not a subject worthy of serious study on its own. The Second Amendment languished as early American historians turned their attention to other problems. Although the subject of constitutional history continues to be practiced by senior scholars, among younger scholars the field of constitutional history has generally languished and as a result the subject has been largely ceded to legal scholars working in law schools and publishing in law reviews.¹⁴While dozens of law review articles appeared on the subject of the Second Amendment over the last two decades only two scholars devoted any serious attention to this subject in history journals. In an important article in the William and Mary Quarterly that has generally been ignored by legal scholars, Don Higginbotham reasserted the centrality of federalism to the debate over the meaning of the Second Amendment.. The issue for Americans, Higginbotham argued, was not the individual or collective nature of the Second Amendment but whether federal or state control of the militia would be more likely to enhance liberty.¹⁵ In an important essay in the Journal of American History Michael Bellesiles explored the origins of American gun culture. This article opened up a new context for understanding the subject of the right to bear arms in early American history. Bellesiles concluded that America was not as heavily armed as previous scholarship has assumed.¹⁶ In another article on gun laws Bellesiles dealt with constitutional questions more directly. In his view guns were heavily regulated and were more like a communal resources kept in private hands than private possessions.¹⁷ Although less controversial than his claims about low levels of gun ownership, Bellesiles analysis of gun laws was far more relevant to the understanding the constitutional meaning of the right to bear arms.¹⁸The first serious and sustained response by historians to the new legal literature on the Second Amendment occurred in a forum in Constitutional Commentary.¹⁹ Perhaps the most vociferous critic of the new scholarship in that issue was Robert Shalhope, the historian most closely associated with the individual rights view among early American historians. In Shalhope's view the writers associated with the Standard Model distorted the past to suit their policy goals. Standard Modelers, Shalhope observed, "displayed little if any interest in the political culture that spawned the Second Amendment; those that did displayed an appalling ignorance of this intellectual climate. The result was, of course, an incredibly anachronistic presentation of the Second Amendment."²⁰ Since the publication of this forum, another symposium on the subject has appeared in an issue of the Chicgao-Kent Law Review. Although the Constitutional Commentary challenged the so called Standard Model, it did explicitly survey the viability of the competing paradigm, the collective rights model. Chicago-Kent, which included articles by historians and legal scholars, was organized to assess the viability of the collective rights view. Most participants in that forum concurred with Paul Finkelman who noted that "the Second Amendment protected the right of the States to maintain and arm their own militias, as long as they were "well regulated" and ultimately under federal control."²¹Although historians were slow to respond to the new individual rights interpretation of the Second Amendment being advocated by legal scholars, a remarkable range of early American historians of different methodological and political views have now entered the fray and attacked the Standard Model.²² Despite the tendentious and dogmatic claims of some Standard Modelers, the idea that there is a consensus on how to interpret the historical meaning of the Second Amendment has been totally discredited. ²³ While most historians favor the militia or collective rights view, a few historians continue to support some variant of the individual rights view.²⁴To move beyond the current terms of debate a new paradigm for understanding the Second Amendment is needed, one that can better account for the tensions and divisions within American constitutionalism during the Founding era and that shows more sensitivity to the evolution of the idea of the right to bear arms during the early Republic. Rather than view the Second Amendment as embodying a monolithic individual or collective right it makes more sense to recognize that there was considerable tension within American constitutionalism about how to understand this right. Both the individual and collective rights models of the Second Amendment are essentially static in their conception of the understanding of the right to keep and bear arms. Thus, not only has existing scholarship been shaped by an out-dated notion of cultural consensus, but it has been deeply ahistorical in its presentation of the past. Recognizing the contested and historically dynamic nature of this right can not only lead to a more sophisticated understanding of the problem of the Second Amendment in American life, but it might well provide a new model for scholarship that could help reanimate the field of constitutional history in the Founding era and early republic. ²⁵ Constitutional History Through a Cultural History Kaleidoscope Once closely tethered to intellectual history, constitutional history has grown increasingly estranged from mainstream historiography.²⁶ Intellectual history has responded to the challenges of the new social history by embracing cultural history and lavishing attention on a range of subjects that would have been ignored by older approaches.²⁷ For cultural historians there is almost nothing that can not be read as a historical text, including everything from cat massacres to prisons²⁸ The application of the perspective of the new cultural history to the political history of the early republic has already produced a significant body of scholarship.²⁹ The methods of cultural history are particularly well suited to constitutional history because of the centrality of textual interpretation to its practice.³⁰ Traditionally constitutional history has been focused on a well defined canon of court cases and legal treatises.³¹ In contrast to traditional intellectual history, the new cultural history has not limited its investigations to the printed texts, but has embraced a wide range of topics from parades to prisons. It is now possible to imagine a constitutional history that moves beyond the cases, treatises, and other products of elite legal culture, and examines a wider range of sources. Popular attitudes about the meaning of constitutional ideas may be read in social texts that were more likely to be performed in the streets than enacted in the legislature or court room.³² It is also important to examine the way constitutionalism can be embodied in the visual and material culture of American life.³³New cultural historians view texts as essentially polyvalent: the same words did not always mean the same things to different historical actors. Thus, it is not only plausible, but quite likely that the right to bear arms meant distinctively different things to members of the planter elite, back-country farmers, and middling sorts. An application of insights of the new cultural history to constitutional history would supplement the top down approach of traditional scholarship with a bottom up approach. It would also recognize the inherent slipperyness and instability of constitutional discourses. Appreciating this fact need not require accepting the radical indeterminacy of meaning associated with certain strains of post-structuralism. Languages are never neutral mediums of communication in which ideas compete on a level playing field and in which signification is an endless process of free play. Particular discourses favor some ideas and concepts while making it difficult, but never impossible, to articulate alternatives.³⁴ Similarly, it is important for historians to recognize that while any source may be read as a text, this is not the same as arguing that there is nothing outside of the text, an idea that most historians would vehemently oppose.How would a history of the Second Amendment look in light of the perspective provided by the new cultural history? A full and complete account of the evolution of the right to bear arms in the early Republic is beyond the scope of this essay. Still, it is possible to sketch a few of the ways in which it might be possible to combine elements of traditional constitutional history with approaches drawn from the new cultural history. Perhaps the best way to understand the implications of this new paradigm is examine several of the texts most often cited by supporters of the individual and collective rights interpretation and consider a range of texts generally ignored by both sides in this debate. When all of these texts are examined and properly contextualized, the problems with the individual and collective rights paradigms can be readily discerned. The New Second Amendment Canon: The Standard Model and the Revival of Anti-Federalism One of the most remarkable features of recent writing on the Second Amendment is the prominent role accorded Anti-Federalist ideas by supporters of the individual rights view. I Once derided as "Men of Little Faith" the Anti-Federalists have been recast as the "Other Founders" in our constitutional tradition. Legal scholars are much more likely to quote Anti-Federalists texts than they once were. The publication of Herbert Storing's important collection of Anti-Federalist writings and the on-going efforts of The Documentary History of the Ratification of the Constitution have made such texts more readily available. The Reagan revolution and the rise of institutions such as the Federalist Society have also helped spread the Anti-Federal revival. ³⁵This rehabilitation of Anti-Federalism is evident the revisionist account of the Bill of Rights authored by the Yale Law School's Akhil Amar who explicitly credits the Anti-Federalists with authoring the Second Amendment. According to Amar, the "Second Amendment's Anti-Federalist architects, George Mason and Elbridge Gerry sought to create a provision that reflected a populist agenda."³⁶ Amar has created a remarkable piece of counter-factual history, bordering on a work of Science Fiction alternative history-- a "what if" scenario playing out what might have happened had the Anti-Federalists losers, not the Federalist winners, written the Bill of Rights. Amar seems blithely unaware that the Anti-Federalists were decisively defeated during the First Federal Elections and that the Bill of Rights was largely shaped by Federalists in the First Congress. Of the two purported Anti-Federalist authors of the Second Amendment only Gerry actually served in the First Congress. Nor can Gerry or Mason be properly described as populist democrats. In fact, both men were spokesmen for the most conservative elite voices within Anti-FederalismOne of the texts most frequently cited to support the notion that the Second Amendment protected an expansive individual right is the Dissent of the Pennsylvania Minority.³⁷ In a foundational text for the Standard Model, gun rights proponent Don Kates declares "the individual right nature of the Pennsylvania right to arms proposal is unmistakable." The relevant amendment proposed by Pennsylvanians was first proposed by Anti-Federalist Robert Whitehill whose language was then borrowed by Samuel Bryan the author of the Dissent. The language of the amendment proposed by Pennsylvanians read as follows:That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game; and no law should be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.The Standard Model's reliance on the Dissent has been attacked by historian Garry Wills who notes that "it is a sign of desperation of the Standard Modelers that they take these ill-conceived phrases of Whitehill as the deliberated position of a whole minority, and want to make them the text that controls our interpretation."³⁸ Wills is not alone in attacking the heavy reliance on Anti-Federalist ideas evident in much Standard Model scholarship.³⁹ Even if one believed in the idea of an originalist jurisprudence, it would be an odd version of originalism that would use an Anti-Federalist proposal not emulated by any other state convention as a model for understanding the Second Amendment.⁴⁰ Interestingly, even leading Anti-Federalists came to regard the practice of quoting such evidence problematic. William Findley, one of the signers of the Dissent, argued during the controversy over the Jay treaty that it would not be appropriate to quote the Dissent as proof of the original understanding of the Constitution's meaning. Findley expressed considerable puzzlement when Federalists quoted the Dissent and remarked that it was strange that "the sentiments of a minority, acting under peculiar circumstances of irritation were "quoted as a good authority for the true sense of the Constitution.⁴¹Exactly how ought we deal with the dissenting legacy of the Anti-Federalists? While speculating on constitutional paths not taken and imagining what our constitutional heritage would look like when read through an Anti-Federalist lens makes for intellectually stimulating exercise in creative political theory or counter-factual history, the fact remains that the Anti-Federalists lost the battle to shape the content of the Bill of Rights. Still, completely ignoring these dissident voices from our past is probably a mistake. Although the Anti-Federalists lost the battle to define the Bill of Rights they did play an important role in shaping subsequent developments in American constitutional life. Nor are Anti-Federalist ideas likely to disappear from American constitutionalism anytime in the near future. The current revival of interest in Anti-Federalism is structurally embedded in the nature of American constitutionalism. As long as the Constitution remains the sacred text of American law, Anti-Federalist writings will remain available for those eager to articulate an alternative vision of constitutionalism.⁴²Although the Dissent may not be an appropriate text for legal scholars interested in questions of originalism, it is certainly an important text for historians seeking to understand how the right to bear arms was viewed by an important group within the Anti-Federalist coalition, the middling radicals who dominated Pennsylvania's opposition to the Constitution. The writing of these opponents of the Constitution were not only among the most widely distributed essays published against the Constitution, but many of these, including the Dissent, were acknowledged at the time to be among the most important.⁴³Understanding the Dissent requires placing it in an appropriate historical context. Few proponents of the Standard Model have bothered to read this text closely or situate it within the context of Anti-Federalist thought in Pennsylvania.⁴⁴ The Dissent was written by the same individuals who supported the Pennsylvania Constitution of 1776 and defended the constitutionality of the state's Test Acts. One of the provisions of the Test Act still in effect when the Dissent was written required that individuals who failed to take a loyalty oath to the state be disarmed. It is significant that the Dissent incorporated a similar provision to the Test Act when it declared that persons might be disarmed for "crimes committed, or real danger of public injury." Thus, the claims of Standard Modeler Nelson Lund that there is not "a shred of evidence to support the proposition that a single American, let alone any significant body of opinion, held that the federal government should have the power to disarm individual Americans" ignores one of Standard Model's favorite sources, the Dissent of the Minority. Indeed, Lund himself uses this text to challenge the claim of collective rights theorists that the phrase bear arms "invariably implies a military context."⁴⁵ While Lund's single counter example from Pennsylvania does indicate that it was possible to use this phrase in a non-military context, a single instance does little to challenge the argument that the most common understanding of this term was a military one. The single counter example of the Dissent, which as Wills notes, was hastily assembled, hardly challenges the notion that standard usage carried with it a clear military meaning.⁴⁶ This was clearly the view of the Tennessee State Supreme Court in the 1840 case of Aymette v. State, when they asserted that "A man in the pursuit of deer, elk, buffaloes, might carry his rifle every day, for forty years, and, yet it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed."⁴⁷ Putting Rights Talk in Context: The Problem of False Analogies Legal scholarship on the Second Amendment has generally treated the problem of rights in terms derived from contemporary legal and philosophical usage.⁴⁸ Sanford Levinson invokes the contemporary philosopher Ronald Dworkin's notion of rights as a trump against government interference⁴⁹ The concept of rights in early American constitutional thought did not carry with it the strong claims associated with modern theory. As historian Jack Rakove observes, "Nearly all the activities that constituted the realms of life, liberty, property, and religion were subject to regulation by the state; no obvious landmarks marked the boundaries beyond which its authority could not intrude, if its actions met the requirement of law."⁵⁰A number of quite eminent legal scholars have argued that Second Amendment jurisprudence ought to be modeled on the First Amendment's bar on prior restraints. While conceding that no right is absolute, even speech, Standard Modelers and their supporters such as Scott Powe insist that the Second resembles the First Amendment's protections for the press. Building on a large body of First Amendment scholarship and law, Powe declares that the Second Amendment can best be understood to incorporate a common law rule against prior restraints. Following the logic of this claim, Powe notes that "the rule against prior restraints offers a sound meaning. The Second Amendment should be interpreted to guarantee an individual right to keep and bear appropriate arms, but no right to use them unlawfully and no right to join with others in an armed band not controlled by the state."⁵¹A far better historical analog of the Second Amendment might be the First Amendment's affirmation of the right of the people to assemble which tracks the language of the Second more closely. Indeed, as Richard Primus has noted, the Founding generation held that "some rights were held to belong to "the people" as a collective body rather than to people as individuals." Moreover, Primus notes that "assembly is an activity of the people plural." Similarly, the right to keep and bear arms was a right of the people.⁵² Restrictions on assembly, in contrast to those on the press, have a long history and would include certain types of prior restraints. If any First Amendment analogy makes sense it would be to the right of the people to assemble not the right of individuals to publish.The affirmation of the right to hunt found in the Dissent of the Minority suggests another more reasonable analog to understanding the meaning of the right to keep and bear arms. Although this provision was not emulated by any other state ratification convention it does suggest that the traditional variant of the collective rights/militia thesis must be amended. At least in Pennsylvania, there appears to have been a recognition of a right to use weapons to hunt. The right to hunt was not similar in scope or character to freedom of the press. Even the authors of the Dissent of the Minority acknowledged that this right might be limited as to time and place. Hunting was obviously subject to extensive regulation, including some types of prior restraints, restrictions that would been unthinkable on the press. The Dissent's right to hunt also calls into question the claim of some Standard Modelers that the Second Amendment was not about duck hunting, but about a right of revolution. Neither the right to bear arms nor the right to kill bears resemble the insurrectionary right defended by Standard Modelers.⁵³Reading Silences: The Problem of Writing a Constitutional History from the Bottom Up One of the most interesting defenses of the individual rights view has been framed by Robert Shalhope who raises the problem of how one ought to read the silences in the historical record. Quoting the sociologist, Louis Wirth, Shalhope notes that the most elemental and important facts about a society are those that are seldom debated and generally regarded as settled." The question of how to deal with the silences in the historical record is an important one and Shalhope is certainly correct to remind historians that they must find some ways of coping with Wirth's important dictum⁵⁴. Still, in the case of the Anti-Federalists it is worth noting that they were not shy when it came to predicting the horrors that would befall America if the Constitution were ratified without amendment. Given the lengthy and detailed list of horrors that Anti-Federalists prophesied, it is surprising how little concern there was during ratification that the federal governments would violate the right of individuals to possess arms for personal use. Positive assertions of an individual right to bear arms are also rare in the large body of literature generated by the ratification debates.⁵⁵One set of voices that have not figured prominently in legal scholarship on the Second Amendment are those of the plebeian populists, the most radical voices within the Anti-Federalist coalition. What did right to bear arms mean to the Carlisle Rioters whose radical localist ideology that set them apart from the more moderate democratic ideas expressed in documents such as the Dissent of the Minority? Plebeian populists were simple majoritarians who embraced an extreme form of local democracy. Anti-Federalists in Carlisle did not see the militia as an agent of their state government, but viewed it as an extension of the will of the local community. When Anti-Federalists in Carlisle were jailed after the riot the local militia acted independently from state authority and marched on the jail to free the prisoners. For plebeian populists the release of the prisoners was an example of direct democracy in action. Events in Carlisle vindicated their radical conception of constitutionalism and strengthened their resolve to oppose the new government. In contrast to the more sober voices of Anti-Federalists, including members of the established elites and middling democrats, the Carlisle Rioters did not fear the mob. For these Anti-Federalists the actions of the crowd were an authentic expression of the will of the people. William Petrikin, a rioter who became a spokesman for plebeian populist ideas, attacked Federalists, accusing them of trying to disarm farmers, mechanics, and labourers. Federalists, Petrikin claimed, thought it would be dangerous to trust such a rabble as this with arms in their hands. Petrikin's assault on the Federalists' notion of the militia reveals an important aspect of plebeian thinking about this issue. These Anti-Federalists rejected the notion that one had to be a property owner to vote, serve on juries, or participate in the militia. ⁵⁶The notion that the militia was literally the entire body of the people in arms, and the related idea that the people might spontaneously organize to resist tyranny, inspired back-country Anti-Federalists in Pennsylvania to constitute themselves as militia units outside of the control of the state. As one anonymous author noted, the counties of Cumberland, Dauphine, andFranklin, appear to take the lead, and have been long since repairing and cleaning their arms, and every young fellow who is able to do it, is providing himself with a rifle or musket, and ammunition. This author went on to echo a common plebeian Anti-Federalist criticism of the Constitution, charging that the lawyers, &c. when they precipitated with such fraud and deception the new system of government upon us, it seems to me, did not recollect, that the militia had arms. Anarchy was not something to be dreaded if the alternative was despotism. A civil war is dreadful, but a little blood spilt now, will perhaps prevent much more hereafter. The author then went on to note that local militias refused to follow the directions of the state to deliver up their arms.⁵⁷The plebeian populist's understanding of the right to bear arms presents problems for both the individual and collective understanding of Second Amendment. The traditional version of the collective rights argument fails to account for the ideology of the Carlisle rioters. It was not the well-regulated militia acting under the authority of the state that plebeian populists defended. Nor can the individual rights model account for their actions. While broadly inclusive in many respects, plebeian populists would have little difficulty justifying disarming citizens who were deemed dangerous to the community. Indeed, the attempts of plebeian populists to limit the rights of Federalist protestors in the streets of Carlisle illustrates how limited their view of First Amendment rights of assembly were when it came to tolerating dissent. Interestingly, plebeian populists showed far greater latitude to political speech in print. Although annoyed by the politics of the Carlisle Gazette, the local newspaper which leaned toward the Federalist side, plebeian populists made no effort to intimidate the printer.⁵⁸ Although modern gun rights legal scholarship has had difficulty telling the difference between guns and words, back country farmers in the eighteenth century clearly understood this difference.⁵⁹Describing the right to bear arms as an individual right in the common usage of that term in contemporary legal discourse clearly does not work for plebeian populists who were comfortable with a range of limits on gun ownership that exceeds anything modern courts would allow for a fundamental constitutional right. There does appear to be a link between the way plebeian populists understood the right of assembly and the right to bear arms. Perhaps the best way to describe this conception of the right to bear arms would be to characterize it as communitarian and localist in character, but not collective in the sense with which that term has been used in the modern debate over the meaning of the Second Amendment. It was not the right of the people acting through their state governments to maintain well-regulated militias that plebeians defended, but rather the rights of local communities, to spontaneously organize as militias.From Tucker to Story: Rethinking the Creation of a Constitutional CanonNeither side in the current legal debate over the meaning of the Second Amendment has showed much interest in charting how this right might have changed over time. In the few instances in which legal scholars have acknowledged important changes in conceptions about the meaning of the right to bear arms they have focused on Reconstruction or the New Deal, and ignored the important changes that occurred in the early Republic.⁶⁰One of the most interesting discussions of the Second Amendment was penned by St. George Tucker, in his important edition of Blackstone's Commentaries. Supporters of the individual rights view have been drawn to Tucker because he provides one of the most vigorous and expansive discussions of the Second Amendment as an individual right.⁶¹ While Tucker was certainly one of the most important early commentators on the Constitution , the notion that his views in 1803 can be read used to reconstruct his understanding of the Second Amendment a decade earlier is profoundly ahistorical. To assume that constitutional thought remained frozen in a decade in which nearly every major political contest was debated as a matter of constitutional law seems ludicrous.⁶² Tucker's constitutional thought was an ambitious synthesis of the principles of 1788 and 1798. Tucker's greatly expanded his William and Mary law lectures and drew on more recent constitutional theory in formulating his understanding of the Second Amendment.⁶³ Tucker's discussion of The Federalist itself provides important clues to the way his own thinking evolved in the decade after ratification of the Constitution. At the end of his appendix dealing with the Federal Constitution, Tucker informed his readers that :The very elaborate and masterly discussion of the constitution, in The Federalist, to which I have repeatedly referred the student in the course of this essay, would probably have saved me the labour of this attempt, if the defects of the constitution had been treated with equal candour, as the authors have manifested abilities in the development of its eminent advantages.⁶⁴Although Tucker may have been exposed to some of the writings of Publius during ratification, it was not until he purchased the complete Federalist in 1794 that he would have been exposed to the entire work. Even more central to understanding Tucker's constitutional thought are the ideals developed in Madison's Report of 1800 which Tucker quotes several times in the course of his discussion of the Constitution. It is hard to see how one can invoke Tucker's ideas in 1803 as a guide to thinking more than a decade earlier, particularly given Tucker's reliance on texts produced after the Alien and Sedition crisis of 1798-1800. Tucker's 1803 gloss on the Second Amendment clearly reflects the complex and contentious course of constitutional development in years following ratification. Indeed, Tucker's work is best understood as the culmination of more than a decade of opposition thinking about the Constitution.⁶⁵Standard Modelers such as Randy Barnett and Don Kates have also mistakenly taken Tucker's thought to be representative of some larger legal consensus on the meaning of the Second Amendment. While there is no disputing the fact that Tucker's work was important and influential, that is not the same thing as saying that Tucker's work embodied some hegemonic American legal mind. Consider the argument of Kates and Barnett who argue that Tucker's writings demonstrate a broad consensus on the meaning of the right to bear arms.Bear in mind that, when Tucker's comments were published, the majority of those who had served in the Congress and state legislatures that enacted the Second Amendment, including Madison himself, were still alive. If these comments were magnifying or misreading the Amendment, surely Madison or one or more other former legislators would have remonstrated with the author or publisher and, if correction was not forthcoming, publicly clarified the record. But none did.⁶⁶Kates and Barnett do not provide a footnote for this claim so it is difficult to evaluate how they arrived at this conclusion. It seems doubtful that they would have surveyed all of the print and archival materials necessary to establish with certainty that no one responded to Tucker. Nor is clear that even if one had undertaken the enormous task of sifting through such materials that one could then conclude that silence indicated broad consent. The logic of this argument would suggest that all Americans were partisans of Tucker's brand of Virginia constitutionalism, with its complex combination of libertarianism and states rights. Certainly the suggestion that American constitutional thought had accepted the principles of the Virginia and Kentucky Resolutions as foundational would have puzzled nationalists such as John Marshall and Joseph Story⁶⁷Although the Standard Modeler's efforts to read Tucker's more expansive individual rights conception of the Second Amendment back into the debates of 1788- 1791 is anachronistic, there is little doubt about Tucker's view of the Second Amendment in 1803. Here is what Tucker had to say about congressional authority to limit the right to keep and bear arms.If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means. But if congress may use any means, which they choose to adopt, the provision in the constitution which secures to the people the right of bearing arms under such an act, might be without relief; because in that case, no court could have any power to pronounce on the necessity or propriety of the means adopted by congress to carry any specified power into complete effect.What Standard Modelers have failed to appreciate is that Tucker chose the Second Amendment to illustrate the dangers of Hamiltonian broad construction. When Tucker's claim is put into context it becomes clear that this more expansive conception of the Second Amendment as an individual right must be read in the context of the constitutional crises provoked by the Alien and Sedition Acts. Tucker's claim was occasioned by his perception that Federalist would have viewed large scale disarmament of the population as constitutionally permissible, much as they viewed the use of seditious libel prosecutions as a legitimate tool to maintain order. It was only because Tucker believed that Federalists could easily justify such a policy, that he elaborated a potential defense of the Second Amendment in more libertarian terms. Rather than demonstrate a broad legal consensus, Tucker's text actually shows that Federalists and Jeffersonians were not in accord on the meaning of the Second Amendment. Given the divergent views of these two sides over the meaning of freedom of the press it hardly seems strange that they might disagree over the proper interpretation of the Second Amendment.⁶⁸ From Cincinnatus to Boon: The Armed Citizen in the Early Republic Standard Modelers have generally ignored the evolving tradition of state constitutional law regarding the right to keep and bear arms.⁶⁹ (See appendix one). Contrary to the myth of an unchanging constitutional right, a profound transformation in the history of the right to bear arms occurred in the early Jacksonian era when several state constitutions abandoned the distinctive eighteenth-century formulation, "the right of the people to keep and bear arms in defense of themselves" in favor of a much more unambiguously individual right, "every citizen has a right to bear arms, in defence of himself and the State." More research is needed into the debates of the individual constitutional conventions that adopted this new formulation before any definitive claims can be made about the reasons for this shift. Still, the change in constitutional discourse evidenced in state constitutions written after the War of 1812 are profound.⁷⁰ A transition from an older republican conception of the right to keep and bear arms to a new more liberal one occurred in some states. A more liberal language did not simply replace the older republican formulation everywhere, as the examples of the Maine and Missouri Constitutions demonstrate. The Missouri Constitution is fascinating because it not only linked the right to assemble with language about the common good, but it directly juxtaposed the right of assembly with the right to keep and bear arms.One can see evidence of this change in other aspects of American culture as well. Perhaps the most visually striking example of the shifting meaning of the armed citizen can be discerned by comparing two of the most important pieces of public sculpture commissioned in the early republic. If one compares the Jean-Antoine Houdon eighteenth-century statue of George Washington in the Virginia State Capitol ,with the Enric Cauisici 19^th century relief depicting the "Conflict of Daniel Boone and the Indians" in the U.S. Capitol this transformation is clear. Washington is cast as the ultimate example of the virtuous citizen solider, literally the modern embodiment of Cincinnatus. In this rendering of the armed citizen, Washington is shown with a sword, not a musket. The contrast with the Boone sculpture is dramatic. Not only is the musket placed at the center of the Boone sculpture, but the subject matter of the work is not an abstract conception of virtue, but a life and death struggle for individual self-preservation. Self defense, not civic virtue, had come to represent the ideal of the armed citizen.⁷¹The profound shift in the image of the armed citizen evident in the Boone sculpture reflected a fundamental change in the legal understanding of self defense, part of a broader transformation that has been described as the Americanization of the common law.⁷² This new conception of self defense broke with an earlier common law notion that one had a duty to retreat to the wall before responding with deadly force. The armed citizen was more focused on a right of individuals to defend themselves against threats. The language of the Mississippi state Constitution reflected a profound shift in American law and society. ⁷³ Conclusion Rather than search for a single meaning for the right to bear arms it makes more sense to recognize that this right could be interpreted in radically different ways by spokesmen for different groups within American society. For plebeian populists the right to bear arms does not fit neatly into either the individual or collective rights paradigms favored by so many legal scholars. Although constitutional scholarship has begun to recognize the importance of state constitutional law, too little attention has been devoted to the evolution of the right to bear arms at the state level.⁷⁴Rather than choose between an essentially static model of the Second Amendment or some simple linear evolution from republicanism to liberalism, historians need to think about the underlying narrative structures they have used to frame their understanding of the past. The right to bear arms provides an excellent illustration of the sedimentary nature of American constitutional life. It is this multi-layered quality of our past that historians need to begin excavating.⁷⁵A new vision of constitutional history is needed, one that can better account for the complexity and contested nature of our constitutional heritage. A new constitutional history combining the best elements of traditional approaches with the insights of the new cultural history can not easily account for the complex evolution of the right to bear arms in the early republic, it might well demonstrate how constitutional history can speak to the issues most germane to early Americanists.

State Constitutional Provisions on the Right to Bear Arms, 1776-1850 1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.1776 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination, to, and governed by, the civil power.1777 Vermont: That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.1780 Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, andbe governed by it.1790 Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.1792 Kentucky: That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.1796 Tennessee: That the freemen of this State have a right to keep and to bear arms for their common defence.1799 Kentucky: That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned.1802 Ohio: That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power.1816 Indiana: That the people have a right to bear arms for the defense of themselves and the State, and that the military shall be kept in strict subordination to the civil power.1817 Mississippi: Every citizen has a right to bear arms, in defence of himself and the State.1818 Connecticut: Every citizen has a right to bear arms in defense of himself and the state.1819 Maine: Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned.1819 Alabama: That every citizen has a right to bear arms in defence of himself and the state.
1820 Missouri: That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned.1832 Mississippi: Every citizen has a right to bear arms in defence of himself and of the State.1834 Tennessee: That the free white men of this State have a right to keep and to bear arms for their common defence.1835 Michigan: Every person has a right to bear arms for the defence of himself and the State.1836 Texas: Every citizen shall have the right to bear arms in defence of himself and the republic. The military shall at all times and in all cases be subordinate to the civil power.1836 Arkansas: That the free white men of this State shall have a right to keep and to bear arms for their common defence.1838 Florida: That the free white men of this State shall have a right to keep and to bear arms for their common defence.1842 Rhode Island: The right of the people to keep and bear arms shall not be infringed.1845 Texas: Every citizen shall have the right to keep and bear arms in lawful defence of himself or the State.1850 Kentucky: That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms.

Footnotes:1. The controlling case for interpreting the Second Amendment remains U.S. V. Miller 307 U.S. 174 (1939) which has generally been interpreted to endorse the Militia view. For efforts to reinterpret Miller in a more individualist manner, see Eugene Volokh, et. al. "The Second Amendment as a Teaching Tool in Constitutional Law Classes" 48 Journal of Legal Education (1998(, 591, 595. For a critique of this reading, see Michael Dorf, "What does the Second Amendment Mean Today," Chicago-Kent Law Review 76 (2000), 297-299.According to Robert Spitzer between 1912 and 1959 there were 11 articles published in law journals all supporting the militia interpretation. Between 1959 and 1989 there were 36 articles favoring the militia interpretation and 30 articles supporting the individual rights view. Spitzer, Robert J., Lost and Found: Researching the Second Amendment Chicago Kent Law Review 76 (2000): 349-401.2. Sanford, Levinson The Embarrassing Second Amendment. The Yale Law Journal 99, (1989): 637-59.3. Dennis Henigan, "Arms, Anarchy, and the Second Amendment" Valparasio University Law Review 26 (1991), 107-29.4. David A. Williams, " The Militia Movement And Second Amendment Revolution: Conjuring With The People," Cornell Law Review 81 (1996).5. G. H . Reynolds, "A Critical Guide to the Second Amendment" Tennessee Law Review 62 (Spring,1995): 461-512.6. Collin Levey, " Liberals Have Second Thoughts on the Second Amendment" Wall Street Journal November 22, 1999. On the radical left Daniel Lazare, "Your Constitution is Killing You Harper's 299 Oct (1999): 57-65 endorses the Standard Model's view of the Second Amendment and uses this as the basis for bolstering the author's earlier attack on the Constitution, see Lazare, The Frozen Republic : How the Constitution Is Paralyzing Democracy (New York, 1996). A Google search of the term Second Amendment yields dozens of individual rights gun sites supporting the Standard Model and few sites endorsing the collective rights interpretation..7. The charge that supporters of the Standard Model were "gun nuts" seems both inacurrate and somewhat inflamatory, Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility Boston University Law Review 75 (1995): 57-153. For an equally intemperate response to such a characterization, see Randy E Barnett,, and Don B Kates. Under Fire: the New Consensus on the Second Amendment Emory Law Journal 45 (1996): 1139-259.8. Spitzer, Robert J., Lost and Found: Researching the Second Amendment Chicago Kent Law Review 76 (2000): 349-401.9. For discussions of the impact of Tribe's reassessment of the meaning of the Second Amendment, Tony Mauro, "Scholar's Views on Arms Rights Anger Liberals" USA Today August 27, 1999.10. Gary Wills, " To Keep and Bear Arms," NYRB 42 (1995), 62-73.11. Historian Joseph Ellis is probably correct in his observation that when "any budding historian announced that he or she wished to focus on the political history of the early republic and its most prominent practioners is generally regarded as having inadvertently confessed a form of intellectual bankruptcy" quoted in Gordon S. Wood, "The Greatest Generation" NYRB March 29, 2001. Although my vision of the Founding era is rather different than that of Ellis and Wood my experience working on constitutional questions confirms their judgements. Consider the following criticisms of my own work for devoting too little attention to rioters, and too much attention to elites, illustrate the problem noted by Wood, see Marcus Daniels, "The Economic Origins of Anti-Federalism?" http://www.h-net.msu.edu/reviews/showrev.cgi?path=13798971448317 and Terry Boulton, "Whose Original Intent?: Expanding the Concept of the Founders," forthcoming, Law and History Review.12. For a thoughtful review essay demonstrating the vitality of gender as a category for constitutional history see, Rosemarie Zagarri, "Gender and the New Liberal Synthesis American Quarterly" American Quarterly 53 (2001), 123-130. The Journal of American History's list of recent dissertations only further underscores the marginalization of constitutional topics are among recent PhD's working in early American history.13. The historiography of the Second Amendment was closely connected to the larger debate among historians over the relative influence of republican and liberal ideas in American history. For an interpretation stressing the way the amendment combined elements of republicanism and liberalism, see Robert E. Shalhope, The Ideological Origins of the Second Amendment Journal of American History 69 (1982): 599-614. For an argument stressing the republican character of the amendment, see Lawrence Delbart Cress, An Armed Community: The Original Meaning of the Right to Bear Arms Journal of American History 71 (1984): 22-42.14. See for example the work of Jack Rakove, Original Meanings and Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, N.Y. 1996). Rakove and Finkelman have each published extensively in law reviews. Not surprisingly Rakove and Finkelman have each recently entered the Second Amendment debate. It seems ironic that while constitutional history has gone out of favor in many history departments across the country there has never been more interest in history in law schools, see Laura Kalman, "Border Patrol: Reflections on the Turn to History in Legal Scholarship," Fordham Law Review 66 (1997) and Barry Friedman, "The Turn to History" NYU Law Review 72 ( 1997), 928-965.15. Don, Higginbotham, The Federalized Militia Debate: a Neglected Aspect of Second Amendment Scholarship William and Mary Quarterly 55, (1998): 39-58.16. Michael A. Bellesiles, Origins of Gun Culture in the United States, 1760-1865" Journal of American History 83 (1996). For an elaboration of the thesis, see Bellesiles, Arming America: The Origins of a National Gun Culture (New York, 2000).17. Michael A. Bellesiles, Gun Laws in Early America: the Regulation of Firearms Ownership, 1607-1794" Law and History Review 16 (1998): 567-89.18. Arming America has prompted an unprecedented level of public scrutiny and criticism by gun rights sympathizers, for a balanced review of the book and its critics see Daniel Justin Herman,"Gun Battles" H-Pol, review (May, 2001)19. Saul Cornell, "Commonplace or Anachronism: The Standard Model, The Second Amendment, and the Problem of History in Contemporary Constitutional Theory" Constitutional Commentary 16 (1999); Michael A. Bellesiles, "Suicide Pact: New Readings of the Second Amendment" ibid.; Don Higginbotham, "The Second Amendment in Historical Context" ibid; Robert E. Shalhope, "To Keep and Bear Arms in the Early Republic" ibid.20. Shalhope, "To Keep and Bear Arms," 270.21. Paul Finkelman. " A Well-Regulated Militia: The Second Amendment in Historical Perspective" Chicago-Kent Law Review 76 (200), 236 and Jack N. Rakove, "The Second Amendment: The Highest State of Originalism" ibid.,22. On the term Standard Model, see Glenn Harlan Reynolds, A Critical Guide to the Second Amendment. Tennessee Law Review, 62 (Spring 1995), 461-512.23. Joyce Lee Malcolm, Second Amendment Symposium 10 Seton Hall Const. L.J. (2000) 829 and Nelson Lund, "Outsider Voices on Guns and the Constitution" Constitutional Commentary 17 (2000), 708.24. Chris Mooney, Showdown. Lingua Franca ( Feb. 2000).25. Thomas Kuhn, The Structure of Scientific Revolutions26. John Higham's list of the leading figures of post war historiography is revealing in this regard: Richard Hofstadter, Edmund Morgan, Daniel Boorstin, and David Potter were all intellectual historians and each showed considerable interest in constitutional issues broadly defined, John Higham and Paul K. Conkin, ed., "Introduction," New Directions in American Intellectual (Baltimore, 1979). For a discussion of the way in which the new social history displaced intellectual history, see Robert Darnton, "Intellectual and Cultural History," in Michael Kammen, ed., The Past Before Us: Contemporary Historical Writing in the United States (Ithaca, 1980), 327-354.27. For a somewhat confused effort to discuss the relevance of recent developments in intellectual history to law, see William W. Fisher III, "Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History," 49 Stan. L. Rev. (1997), 1065. Fischer typology of structuralists, textualists, contextualists, and new historicists ignores the complex relationship between the rise of the new social history and the development of the new cultural history. It leads Fischer to place Hendrik Hartog's work into the same category as literary critics associated with the New Historicism. Hartog's work is more logically seen as an exemplar of how the new cultural history's emphasis on popular consciousness might be applied to legal history, see "The Constitution of Aspiration and the `Rights that Belong to Us All."28. Robert. Darnton, The Great Cat Massacre and Other Episodes in French Cultural History( New York, 1984); Michael Meranze, Laboratories of Virtue : Punishment, Revolution, and Authority in Philadelphia, 1760-1835 (Chapel Hill, NC ,1996). Victoria E Bonnell, Lynn Avery Hunt and Richard Biernacki, eds., Beyond the Cultural Turn : New Directions in the Study of Society and Culture ( Berkeley, CA,1999); Aletta Biersack and Lynn Avery Hunt, eds., The New Cultural History: Essays (Berkeley, CA, 1989) For an excellent sample of the range of the new cultural history within the context of American history, see Richard Wightman Fox and T. J. Jackson Lears, eds., The Power of Culture: Critical Essays in American History (Chicago, 1993)29. David Waldstreicher, In the Midst of Perpetual Fetes: The Making of American Nationalism (Chapel Hill, NC. 1997); Simon P. Newman, Parades and Politics of the Streets: Festive Culture in the Early Republic (Philadelphia, 1997); Len Travers, Celebrating the Fourth: Independence Day and the Rites of Nationalism in the Early Republic (Amherst, MA 1997). Mary P. Ryan, Civic Wars: Democracy and Public Life in the American City during the Nineteenth Century (Berkeley, CA 1997). For a useful overview of this historiographic moment, see John L. Brooke, "Reason and Passion in the Public Sphere: Habermas and the Cultural Historians" JIH 29 (1998), 43-67.30. On the strongly originalist character of much Second Amendment revisionism, see Rakove, "Highest State of Originalism." The assumptions of new cultural history are almost exactly opposite of the assumptions guiding Second Amendment originalists such as Randy Barnett whose view is that "original meaning refers to the meaning a reasonable speaker of English would have attached to the words, phrases, sentences, etc. at the time the particular provision was adopted." Barnett believes that such meaning " is objective insofar as it looks to the public meaning conveyed by the words used in the Constitution, rather than to the subjective intentions of its framers or ratifiers," The Original Meaning of the Commerce Clause University of Chicago Law Review 68 (2001): 101-47 and more generally, "An Originalism for Nonoriginalists. Loyola Law Review 45, (1999): 611-54.31. J. M., Balkin and Sanford Levinson, The Canons of Constitutional Law" Harvard Law Review 111 (1998): 963-1024. For a slightly different approach, see Saul Cornell, Moving Beyond the Canon of Traditional Constitutional History: Anti-federalists, the Bill of Rights, and the Promise of Post-modern Historiography. Law and History Review 12 (1994): 1-28.32. Other Founders 109-11433. Although much of the response to Bellesiles, Arming America has focused on his use of probate records or his failure to discuss the connection between the myths of the militia and the reality, far too little attention has been devoted to his innovative effort to discuss how the materiality of guns- cost, ease of use, and problems of repair are vital to understanding the meaning of the right to bear arms. Even if subsequent scholarship qualifies some or all of his conclusions his analysis has opened a rich new subject for future inquiry.34. Richard J. Bernstein, The New Constellation: The Ethical-Political Horizons of Modernity/Postmodernity (Cambridge, UK, 1991); and Jurgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures trans. Frederick Lawrence, (Cambridge, MA, 1990).35. Cecelia M. Kenyon, " Men of Little Faith: The Anti-Federalists on the Nature of Representative Government" William and Mary Quarterly, 3rd. Ser., 12, (1955), 3-43. Herbert J. Storing, The Complete Anti-Federalist (Chicago, 1981), Merrill Jensen et. al. eds., Documentary History of the Ratification of the Constitution (Madison, WI 1976-). For two rather different assessments of the Anti-Federalist revival, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill, NC 1999 ) and Paul Finkelman, "Turning Losers into Winners: What Can We Learn, if Anything, from the Antifederalists?" Texas Law Review 79 (2001) , 849-94. On the rise of the Federalist society and its connection to Anti-Federalist ideas, see C hris Mooney, " Losers: Bush's Ally, the Federalist Society, Resurrects the Views of the Vanquished in the Constitutional Debate -- the Anti-Federalists" http://www.prospect.org/webfeatures/2001/04/mooney-c-04-25.html36. Akhil Amar, The Bill of Rights: Creation and Reconstruction, 216.37. Reynolds, "Critical Guide to the Second Amendment," 63 ; Thomas Macafee and Michael J. Quinlan, "Bringing Forward The Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way" North Carolina Law Review 75 (1997); Nelson Lund,"The Past and Future of the Individuals Right to Bear Arms," Georgia Law Review 31 (1997); Stephen P. Halbrook, "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment" Valparasio Law Review 26 (1991).38. Garry Wills, "To Keep and Bear Arms" New York Review of Books, Sept 21, 199539. See the essays by Rakove and Finkelman in Chicago-Kent.40. Thus, Richard Kay, one of the leading theorists of originalism, argues against using Anti-Federalist intent, "Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses" Northwestern University Law Review 82 (1988). For the problems of deriving a calculus to sum up the different relevant original intents from ratification, see Rakove, Original Meanings.41. Cornell, Other Founders 235.42. Although the Anti-Federalists suffered a devastating defeat important elements of Anti-Federalism survived long after the Anti-Federalist movement Of course the attempts by Jeffersonians, and to a lesser extant Jacksonians to rehabilitate aspects of Anti-Federalist thought and use it as the foundation for a dissenting constitutional tradition that provided an alternative to the nationalist jurisprudence of the Marshall Court should not be underestimated. For an exploration of this tradition, see Saul Cornell, The Other Founders43. Of course, the view of Anti-Federalists in 1788 and their attitudes during the 1790s could be quite different and provides additional caution about approaching constitutional ideas in a static fashion.44. The example of the Test Acts provides another example of how the most important contexts need no be social, but might be legal, intellectual or political.45. Nelson Lund, "The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders" Texas Review of Law & Politics (1999)46. According to legal scholar David Yassky congressional documents from the Founding era use this term in a military context on thirty other occasions. David Yassky, " The Second Amendment: Structure, History, and Constitutional Change," University of Michigan Law Review99 (2000), 588-68847. Aymette vs. State Tennessee Reports 21 (1842): 154-62.48. For discussions of the concept of rights talk, see Thomas L. Haskell, "The Curious Persistence of Rights Talk in an Age of Interpretation," in David Thelen, ed., The Constitution in American Life (Ithaca, N.Y. 1987) and Stephen A. Conrad, "Putting Rights Talk in its Place," in Peter Onuf, ed Jeffersonian Legacies (Charlottesville, VA 1993)49. R. M. Dworkin, Taking Rights Seriously (Cambridge, MA 1977). In his important article on A The Embarrassing Second Amendment, Sanford Levinson invokes Dworkin explicitly and this conception of rights is also implicit in Glenn Harlan Reynolds discussion as well in "Critical Guide to the Second Amendment."50. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, (New York, 1996), 291 and Declaring Rights, 22.51. L. A., Jr. Powe Guns, Words, and Constitutional Interpretation William and Mary Law Review 38 (1997): 1311-403 and William Van Alstyne, The Second Amendment and the Personal Right to Arms Duke Law Journal 43 (1994): 1236-55.52. Richard A Primus, The American Language of Rights (Cambridge, 1999), 86-7. Akhil Amar compares the militia right in the Founding era to the jury, another collective incarnation of the people, The Bill of Rights.53. Cf. Kopel, David B. It Isn't about Duck Hunting: the British Origins of the Right to Arms Michigan Law Review 93 (1995): 1333-62.54. Shalhope, "To Keep and Bear Arms."55. On this point, see Don Higginbotham, "The Second Amendment in Historical Context." Constitutional Commentary (1999) and "The Federalized Militia Debate: a Neglected Aspect of Second Amendment Scholarship" William and Mary Quarterly 55 (1998): 39-58.56. For a more detailed discussion of Petrikin and the Carlisle Riot, see Cornell, The Other Founders, 109-11857. "Extract of a letter from Franklin County 24^th April 1788" DHRC 17:252. The Supreme Executive Council had directed militia officers "to collect all the public arms of the city and several counties" and repair them. Anti-Federalists viewed the Council's action as an effort to disarm the people. The actions of the Council and the response of some Anti-Federalists only underscores the contested nature of the right to bear arms in Pennsylvania.58. Cornell, Other Founders, 112-359. William Van Alstyne, The Second Amendment and the Personal Right to Arm Duke Law Journal 43 (1994): 1236-55 and Powe, "Guns and Words"60. Thus Akhil Amar argues that the Fourteenth Amendment radically transformed the meaning of the Second Amendment, The Bill of Rights. David Yassky, following Amar's Yale colleague Bruce Ackerman, focuses more attention on the transformative impact of the New Deal on the Second Amendment, Yassky, "Second Amendment." Neither of these accounts deals effectively with the crisis prompted by the Alien and Sedition Acts or the era of state constitutional reform during the Jacksonian era. For a critique of Ackerman and Amar's conception of history, see Richard A. Posner, " Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship," University of Chicago Law Review 67 (2000) and Joanne B. Freemen, "The Election of 1800: a Study in the Logic of Political Change" The Yale Law Journal 108 ( 1999) : 1959-9461. David B. Kopel, "The Second Amendment in the Nineteenth Century" Brigham Young University Law Review (1998):1359-545. Kopel's essay is the most elaborate effort to demonstrate the absence of historical change of any supporter of the Standard Model.62. For a useful overview of this period, see Stanley Elkins and Eric McKitrick, The Age of Federalism and Jame Rogers Sharp, American Politics in the Early Republic63. Tucker's law lectures and his copy of The Federalist are in the Tucker-Coleman papers, Swem Library, College of William and Mary64. Clyde N. Wilson, ed., St. George Tucker, View of the Constitution of the United States with selected writings (Indianapolis, 1999)65. For a discussion of Tucker's efforts to synthesize the various strains of opposition thought, see Cornell, The Other Founders.66. Under Fire, p.122167. Standard Modelers have constructed a direct line to link the great commentators of the early republic, for the most elaborate attempt to create such a connection, see Kopel, David B. The Second Amendment in the Nineteenth Century Brigham Young University Law Review (1998): 1359-545. The notion that the ardent states rights supporter Tucker can be lumped together with the ultra-nationalist Story seems particularly dubious. For a discussion of how the Standard Model has misconstrued Story, see Bellesiles, Suicide Pact.68. From the perspective of contemporary jurisprudence it is certainly legitimate to ask if we want to take our cues from Federalists. Of course, it would not be the first time in American history that Hamiltonian and Jeffersonian constitutional ideas were mixed together in an eclectic fashion. For an interesting, but not entirely persuasive argument, that the participants in the constitutional debates themselves opportunistically shifted back and forth from Jeffersonian to Hamiltonian assumptions when it suited their interests, see Joseph Lynch, Negotiating the Constitution. For a useful discussion of the difference between Federalist and Jeffersonian views of freedom of the press, see Norman Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel69. Eugene Volokh, The Commonplace Second Amendment New York University Law Review 73 (1998): 793-821.70. For an argument that the War of 1812 marked a watershed in the evolution of the transition from republicanism to liberalism, see Steven Watts, The Republic Reborn. The literature on the debates over the relative importance of republican and liberal ideas in American life is enormous. For a good starting point, see Daniel Rodgers, "Republicanism: The Career of a Concept."71. On Houdin's Washington, see Garry Wills, Cincinnatus: George Washington and the Enlightenment ( New York, 1984). On Cauisici's Boone sculpture, see Vivien Green Fryd, "Imaging Indians in the United States Capitol during the Early Republic" in Frederick E. Hoxie, et. al eds., Native Americans and the Early Republic ( Charlottesville, VA 1999) and J. Gray Sweeney, The Columbus of the Woods: Daniel Boone and the Typology of Manifest Destiny (St. Louis, 1992). For a general discussion of the role of the Boone myth in the political culture of the early republic, see Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600-1860 (Middletown, CT 1973).72. William E. Nelson, The Americanization of the Common law.73. Several scholars associated with the Standard Model have asserted that an expansive right of self defense was inherited from Blackstone, see Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of Anglo-American Right. Malcolm's view not only over-states the degree to which there was a strong Blackstonian consensus in post-Revolutionary America, but seriously mis-characterizes Blackstone's view of the right of self defense. For critiques of Malcolm, see Lois G. Schwoerer, "To Hold and Bear Arms: The English Perspective" 76 Chicago-Kent Law Review and Steven J. Heyman, "Natural Rights and the Second Amendment" ibid. In the Massachusetts case of Commonwealth v. Selfridge (1806) a new more expansive view of the right of self defense emerged. For a thoughtful discussion of the significance of this case, see Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (New York, 1991)74. Paul Finkelman and Stephen E. Gottlieb, eds., Toward a Usable Past: Liberty Under State Constitution (Athens, GA 1991).75. To move beyond the linear narratives that dominate constitutional history, historians might well consider the notion of a sedimentary constitution tradition suggested by legal scholar Barry Friedman, see Barry and Scott B. Smith, "The Sedimentary Constitution" University of Pennsylvania Law Review 147 (1998).