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Law and History Review Vol 22 No 1 Spring 2004

A New Paradigm for the Second Amendment

Saul Cornell*

Discussions about the meaning of the Second Amendment have become mired

in an intellectual quagmire. Contemporary debate over this provision of the Bill of Rights

have 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 their well-regulated militias.1 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

amendment is about the allocation of military power in the federal system. According to

this view, the Second Amendment was a modest concession to moderate Anti-Federalists

who feared the power of the new federal government. By affirming that the right of the

people to bear arms as part of a well-regulated militia, Federalists were able to assuage

lingering Anti-Federalist qualms about the future of the state militias. Framing the

meaning of the Second Amendment in terms of such simple dichotomy fits well with the

politics of the modern gun control debate. The individual rights view serves the interests

of gun rights advocates, while the collective rights view fits well with supporters of gun

control. While this neat dichotomy may have served the interests of those involved in

modern political debates about gun policy, it is not particularly useful for understanding

the eighteenth century world in which the Second Amendment was drafted and adopted.

To find dramatic evidence of the current paradigm crisis in Second Amendment

scholarship and jurisprudence one need only look at the convoluted reasoning displayed


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