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(Forthcoming)

Law and History Review Vol 22 No 1 Spring 2004

people duly armed without some organization, it is difficult to see. There

is certainly no small danger, that indifference may lead to disgust, and

disgust to contempt; and thus gradually undermine all the protection

intended by this clause of our National Bill of Rights.

18

This discussion of the right to keep and bear arms was cast in the form of a jeremiad.19

There is nothing in this lament about the rise of individualism and the erosion of civic

spirit that supports the modern individual rights view of Story.

Figuring out what

century

type

of

right

such an odd and distinctively might mean in the 21st century

18th is a

complex matter. Constitutional theorist Chris Eisgruber has likened the Second

Amendment to

a constitutional ghost town.20

The notion of a constitutional ghost town

calls attention to the fact that Americans might choose to restore the Second Amendment

to its former vitality at any moment. Recreating the world of the eighteenth century

militia is not impossible, but it would require a reawakening of civic mindedness and self

sacrifice that seems difficult to imagine in modern America. Here Story’s jeremiad is

worth recalling. If Second Amendment rights have atrophied in modern America it is

not because of too much government regulation, but ironically it is the absence of

regulation that has produced the anemic version of the Second Amendment we now live

under. If Americans were willing to undertake the burdens required by militia service

and sacrifice some significant portion of their individual liberty to attain this collective

ideal, then the Second Amendment would be restored to its former robust character.

21

Given the deep suspicion of government that animates the gun rights movement, it would

not welcome greater regulation and additional intrusions into the lives of citizens that

would be necessary to recreate the Founder’s militia. Proponents of gun regulation

8

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