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A New Paradigm for the Second Amendment - page 5 / 13

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(Forthcoming)

Law and History Review Vol 22 No 1 Spring 2004

less a right of the states, although clearly the i states rights was closely connected to the fate of militia, but more accurately described as a civic Although Americans extended the right to bear arms who would not have enjoyed this right in Britain,

was hardly universal.

aliens,

might

claim

a

Women, free Africans, resi genuinely individual right

ssue of

the right.

to many the right dent such as

In

the

a

bear, but

r

ight

not

the right generally

Founding era, in most cases

a Quaker might bear a gun against they did not bear arms.12 The civic

of religious conscience, but they included among those who bore arms.

were

described by Konig, a right

of

citizens, not

individuals,

was

inextricably

linked

to

an

obligation to

participate in

communal defense as part of

a well regulated militia.

Modern

collective

actual

wording of

rights theorists have stumbled over the the Second Amendment which refers to the

right

of

the

people,

not

a

right

of

the

states.

Konig’s

formulation of the Amendment as an individual right exercised collectively comes closer to faithfully translating the dominant understanding of the Amendment the Founding era than does either the modern collective individual rights paradigms. In this sense the right to

in or bear

arms shares some features the right of assembly and

with the original conception of

the

jury,

rights

that

required

that citizens act public purpose. 13

in

a

collective

manner

for

a

distinctly

5

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