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(Forthcoming)

Law and History Review Vol 22 No 1 Spring 2004

only outlaws will have firearms. Thomas Jefferson was obviously impressed with this

argument and copied it into his commonplace book. Jefferson did not, however, model

his own proposal for the Virginia Declaration of Rights on this more expansive

conception of the right to own firearms. Instead, Jefferson’s proposal for the Virginia

Constitution affirmed that , "No free man shall be debarred the use of arms within his

own lands or tenements."6 Supporters of the individual rights view have attached great

significance to Jefferson’s words and to his fondness for Beccaria.7 Of course, the

primary architect of the Virginia Declaration of Rights and Constitution was not Thomas

Jefferson, but George Mason. The Virginia Declaration of Rights affirmed the ideal of a

well-regulated militia in terms reminiscent of Burgh, not Beccaria.

That a well regulated militia, composed of the body of the people,

trained to arms, is the proper, natural, and safe defense of a free

state; that standing armies, in time of peace, should be avoided, as

dangerous to liberty; and that in all cases the military should be

under strict subordination to, and governed by, the civil power.

8

Mason’s language shares little with either Beccaria or Jefferson’s formulation of this

right. Indeed, none of the arms bearing provisions adopted by state constitutions in the

Founding era followed Beccaria’s or Jefferson’s model. Both Beccaria and Jefferson’s

more individualistic conception of the right to have arms for self defense clearly stood

outside of the constitutional mainstream in the 18th century.

Rather than focus on the Italian Beccaria, Konig astutely directs our attention to

the Scott Burgh.

Konig

also

persuasively

argues

for

Burgh’s

influence on both

The Federalist and the

debates over the

militia

in

the

Virginia

Ratification

Debates.

As

several

3

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