Early American gun regulation and the second amendment: A closer look at the evidence

Law and History Review

Volumn 25, Issue 1, 2007, Pages 197-204

  Cornell, Saul ^a  

^a OHIO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 60950395052     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000001115     Document Type: Review

References (24)

1. Michael A. Bellesiles, "Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794," Law and History Review 16 (1998): 567-89. Churchill's primary goal appears to be giving academic legitimacy to the insurrectionary ideology of the modern militia movement
2. see Robert H. Churchill, "The Highest and Holiest Duty of Freemen": Revolutionary Libertarianism in American History" (Ph.D. diss., Rutgers, 2001)
3. For criticism of law office history on both sides of this debate, see Saul Cornell, "Don't Know Much About History": The Current Crisis in Second Amendment Scholarship," Northern Kentucky Law Review 29 (2002): 657-81. Rather than seek a usable past, scholars interested in contemporary gun issues ought to focus their attention on policy questions and jurisprudential issues
4. "Scribble Scrabble," Cumberland Gazette, January 26, 1787
5. "Scribble-Scrabble," ibid., December 8, 1786
6. For a good synthesis describing the importance of the common law to American legal thinking in the Founding era, see Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)
7. The notion of liberty articulated by Scribble Scrabble is consistent with the account of John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988)
8. Don B. Kates, "The Second Amendment and the Ideology of Self-Protection," Constitutional Commentary 9 (1992): 87-104
9. Nelson Lund, "The Second Amendment, Political Liberty, and the Right to Self-Preservation," Alabama Law Review 39 (1987): 103-30
10. The distinction between the common law right of self-defense and the political right to have arms for common defense was central to Blackstone; on this point see Steven J. Heyman, "Natural Rights and the Second Amendment" Chicago Kent Law Review 76 (2000): 237-90
11. Trial of Thomas Selfridge, Attorney at Law, Before the Hon. Isaac Parker, Esq, For Killing Charles Austin. . . . (Boston, 1806), 41, 137, 128, 149
12. Saul Cornell and Nathan Dedino, "A Well Regulated Right: The Early American Origins of Gun Control," Fordham Law Review 73 (2004): 487-529. This perception may not have been accurate according to Randy Roth, whose forthcoming study of violence in early America will resolve this issue
13. Aymette v. State, 21 Tenn (2 Hump) 154 (1840) at 159
14. St. George Tucker Notebooks, Box 63, vol. iv, pp. 127-28, Tucker-Coleman Papers, Swem Library College of William and Mary
15. St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia . . . , 5 vols. (1803)
16. For a detailed examination of the role of the Second Amendment in Tucker's evolving constitutional theory, see Saul Cornell, "St. George Tucker and the Second Amendment: Original Understandings, and Modern Misunderstandings," William and Mary Law Review 47 (2006): 1123-56
17. Churchill's use of Tucker replicates the anachronistic readings of many legal scholars; see, for example, Randy E. Barnett, "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?" Texas Law Review 83 (2004): 237-77
18. David B. Kopel, "The Second Amendment in the Nineteenth Century," Brigham Young University Law Review 4 (1998): 1359-545
19. Randy E. Barnett and D. B. Kates, "Under Fire: The New Consensus on the Second Amendment," Emory Law Journal 45 (1996): 1139-259
20. St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of it, in the State of Virginia (1796) in St. George Tucker, View of the Constitution, ed. Clyde Wilson (Indianapolis: Liberty Fund, 1999 ), 408-9, 422, 441
21. Saul Cornell, "A New Paradigm for the Second Amendment," Law and History Review 22 (2004): 161-67
22. H. Richard Uviller and William Merkel, The Militia and the Right to Arms; or; How the Second Amendment Fell Silent (Durham, N.C.: Duke University Press, 2002)
23. and David Konig, "The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of 'the Right of the People to Keep and Bear Arms,'" Law and History Review 22 (2004): 119-59
24. For an exploration of the range and evolution of American thinking on the meaning of the right to bear arms, see Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006)