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.
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.
influence on both
The Federalist and the
debates over the