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(Forthcoming)

Law and History Review Vol 22 No 1 Spring 2004

recent critics

of the individual rights model

of the Second

Amendment have noted, the subject of a firearms outside of the context of the

private militia

right to own

was

rarely

discussed during the ratification debates, while protect the militia from the threat posed by the government received extensive commentary. 9

the need Federal

to

The preference for Beccaria over Burgh in recent scholarship illustrates one of the

most problematic features of this body of research and writing. In contrast to the

contextualist method employed by Konig, recent individual rights scholarship on the right

to bear arms has been an exercise in law office history of a particularly bizarre kind.10

Rather than trying to understand texts by placing them within their context, Second

Amendment originalists have created something akin to an alternative history science

fiction fantasy, stories about parallel historical universes in which the South won the

Civil War or the American Revolution never happened. In this alternative Second

Amendment universe, the Virginia Declaration of Rights was written by Beccaria or

Jefferson, not Mason, the Second Amendment drafted by the Dissenting Anti-Federalist

Minority of Pennsylvania, not the First Congress, and Jospeh Story's constitutional

treatises ghost-written by a radical abolitionist. While such efforts makes for excellent

fiction, and might plausibly make for a fascinating exercise in creative constitutional

theorizing, it makes for poor history.11

Although Konig’s essay raises serious questions the individual rights interpretation of the Second Amendment, his analysis also presents a more modest

about

challenge to the conventional

collective

rights

model.

The

understanding of the right described by Konig

is

4

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