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A New Paradigm for the Second Amendment - page 7 / 13





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Law and History Review Vol 22 No 1 Spring 2004

to bear arms. Tiffany read Blackstone’s discussion of the right to have arms in an

expansive manner. “It is called subordinate in reference to the great, absolute rights of

man; and is accorded to every subject for the purpose of protecting and defending

himself. Moreover, this guaranty is to all without any exception; for there is none,

either expressed or implied.” The expansive individual right defended by Tiffany and

other abolitionists is about self defense: “The right to keep and bear arms, also implies

the right to use them if necessary in self-defense.”

When compared with the assertive

and unambiguously individualistic language used by Tiffany, Story’ s discussion of the

Second Amendment seems distinctly civic in spirit. Story was both deeply conservative

and strongly nationalist in his views. His conception of the Second Amendment as a

civic right was consistent with both his nationalism and conservatism. Kopel and other

individual rights theorists have distorted Story’s thought, effectively casting him as a

supporter of a radical abolitionist vision that he actually opposed.17

Story’s conception of the militia did depart from his eighteenth century forebears

in one important respect and this serves as a reminder of the need to pay attention to both

the changing historical meaning of the right to bear arms and changing social and

political realities of American history. The militia in Story’s age had fallen into serious

decline as a public institution and prompted him to observe that:

And yet, though this truth would seem so clear, and the importance of a

well regulated militia would seem so undeniable, it cannot be disguised,

that among the American people there is a growing indifference to any

system of militia discipline, and a strong disposition, from a sense of its

burthens, to be rid of all regulations. How it is practicable to keep the


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