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A New Paradigm for the Second Amendment - page 6 / 13





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Law and History Review Vol 22 No 1 Spring 2004

Konig’s model for the Second Amendment also helps illuminate the thinking of

important 19th century commentators on the Second Amendment such as Joseph Story.

Individual rights theorists such as David Kopel have argued that since Story does not fit

perfectly into the modern collective rights theory he must be counted among supporters

of the modern individual rights view of the Amendment. Kopel’s framework is a

textbook illustration of the historical “fallacy of false dichotomous question.”14 Story

wrote about arms bearing as a civic right, not an individual right.

One of the ordinary modes, by which tyrants accomplish their purposes

without resistance, is, by disarming the people, and making it an offence

to keep arms, and by substituting a regular army in the stead of a resort to

the militia. The friends of a free government cannot be too watchful, to

overcome the dangerous tendency of the public mind to sacrifice, for the

sake of mere private convenience, this powerful check upon the designs of

ambitious men.15

Story’s entire discussion of the meaning of the Second Amendment occurs within the

context of the militia and is much closer in spirit to Burgh, than to Beccaria. The right

protected by the Second Amendment was one enjoyed by citizens who might use their

privately owned weapons as part of their obligation to participate in a well regulated

militia. Indeed, Story decried the actions of those who were sacrifice their public

responsibility for the sake of mere private convenience, hardly a radical statement of an

individual rights creed. Within the same decade that Story published his Familiar

Exposition, abolitionist Joel Tiffany wrote his Treatise on the Unconstitutionality of

Slavery.16 In Chapter Sixteen of his treatise, Tiffany discussed the meaning of the right


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