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A New Paradigm for the Second Amendment - page 2 / 13





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Law and History Review Vol 22 No 1 Spring 2004

by two Federal Appeals court decisions trying to make sense of the vast scholarly

literature on this once neglected topic.2

In United States v. Emerson, the Fifth Circuit

identified three schools of thought on the Second Amendment: the sophisticated

collective rights view, the traditional collective rights view, and the individual rights

view.3 In Silveira v. Lockyer, the Ninth Circuit adopted a different tripartite scheme,

concluding that current scholarship could be divided into the following: the collective

rights view, the individual rights view, and the limited individual rights view.4

In this important essay, David Konig joins his voice to a growing chorus of

scholars who have concluded that it is time to move beyond the simplistic dichotomies

that have obscured as much as they have clarified our understanding of the Second

Amendment.5 In Konig’s view the Amendment is neither an individual nor a collective

right in the sense with which these terms are so often used in modern discussions of the

right to bear arms. To support this conclusion he draws on an important but largely

forgotten context of the Second Amendment. The key to understanding this lost context

of the Second Amendment resides in the writings of thinkers such as James Burgh, who

distilled the history of Scotland into a potent tonic for the Founders, reminding them of

the dangers of allowing the militia to be disarmed by a distant and powerful


Burgh’s thought has not figured prominently in recent writing on the Second

Amendment by gun rights advocates who have been more enamored of the Italian

Enlightenment theorist Cesare Beccaria who attacked laws which prohibited individuals

from carrying firearms and argued that such laws worked to the benefit of criminals. In

essence, Beccaria was the first modern theorist to argue that when firearms are outlawed,


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