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

Volumn 22, Issue 1, 2004, Pages 119-159

  Konig, David Thomas ^a  

^a WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 67651106740     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/4141667     Document Type: Review

References (140)

1. David Hackett Fischer, Historians' Fallacies: Toward a Logic of Historical Thought (New York: Harper & Row, 1970), 9-12
2. Saul Cornell, "'Don't Know Much About History': The Current Crisis in Second Amendment Scholarship," Northern Kentucky Law Review 29 (2002): 657
3. Quentin Skinner has ably explained how apparent historical paradoxes can deflect us from unspoken but fundamental underlying political beliefs and lead us to fail "to identify some local canon of rational acceptability." Quentin Skinner, "A Reply to My Critics," in Meaning and Context: Quentin Skinner and His Critics, ed. James Tully (Princeton: Princeton University Press, 1988), 244
4. Neil Richards warns against such a fallacy and expressly eschews capitalizing "framers" ("Clio and the Court: A Re-Assessment of the Supreme Court's Uses of History," Journal of Law & Politics 13 [1997]: 845)
5. For a succinct summary of the way the plurality of viewpoints among both Federalists and Antifederalists has undergone "homogenizing" into two distinct groups, see Saul A. Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina Press, 1998), 6-8
6. A Discourse upon the Exposicion & Understanding of Statutes: With Sir Thomas Egerton's Additions, ed. Samuel E. Thorne (San Marino: Huntington Library, 1942), 151. Lest one be guilty of an ahistorical use of Egerton, it must be noted that his work referred to "the Exposicion and Understanding of Statutes," and not to their "interpretation," a term that connoted far more judicial authority than he or anyone else at the time would have accepted
7. The term "originalism" dates from 1980, when Paul Brest introduced it in a strenuous critique of "the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of the adopters." Brest was responding, of course, to an argument already "familiar," and since 1980 the debate over that term has generated a vast literature of articles, books, and law review symposia. See, for example, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: A. A. Knopf, 1996), esp. chap. 1, "The Perils of Originalism," 3-22
8. See also the special symposium issue, "Fidelity in Constitutional Theory," Fordham Law Review 65 (1997)
9. On the emergence of this controversy in the legal academy, see Carl T. Bogus, "The History and Politics of the Second Amendment: A Primer," Chicago-Kent Law Revieiv 76 (2000): 3-25
10. For a chronologically arranged bibliography of the competing interpretations, see the table and appendix to Robert J. Spitzer, "Lost and Found: Researching the Second Amendment," in ibid., 384-401
11. Glenn Harlan Reynolds offers the term "Standard Model" in his "A Critical Guide to the Second Amendment," Tennessee Law Review 62 (1995): 461-512
12. Stuart Banner, "Legal History and Legal Scholarship," Washington University Law Quarterly 76 (1998): 37, 40
13. For this reason, the present essay does not deal with questions concerning the subsequent impact of the fierce political contests of the Federalist era. Nor does it address the impact of the Fourteenth Amendment and the incorporation of the amendment, discussed by Akhil Reed Amar in The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 46-59, 257-66, and by David Yassky, "The Second Amendment: Structure, History, and Constitutional Change," Michigan Law Review 99 (2000): 651-60
14. nor does it discuss the proposition that the amendment might be "translated" to contemporary issues, as suggested in the general model presented by Lawrence Lessig, "Fidelity as Translation: Fidelity as Constraint," Fordham Law Review 65 (1997): 1365-1433, with comments to 1517
15. or by Jeffrey Rosen, "Translating the Privileges and Immunities Clause," George Washington University Law Review 6 (1998): 1241-68, with comments to 1297
16. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994), xii
17. John Phillip Reid, perhaps the most notable scholar of the transatlantic antecedents of American Revolutionary legal thought, notably discusses "The Britishness of Liberty" in his The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 14-17
18. See, generally, Linda Colley, Britons: Forging the Nation, 1707-1837 (New Haven: Yale University Press, 1992), 30-43
19. In recent years, historians have shown how a broadened "British" perspective illuminates the history of both the British Isles and its far-flung colonies. See "Forum: The New British History in Atlantic Perspective," American Historical Review 104 (1999): 426-500. Especially pertinent are the contributions of David Armitage, Ned Landsman, and Eliga Gould
20. Bernard Bailyn and John Clive, "England's Cultural Provinces: Scotland and America," William and Mary Quarterly, 3d. ser., 11 (1954): 209-10
21. On the "'country' vision of English politics" held by "anti-Court independents within Parliament and the disaffected without," see Bernard Bailyn, Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967): 35-36
22. Scottish radicals chafed at their country's subordination under what they sneeringly called "the celebrated Union," and me American Revolution provided not only a democratizing example to emulate, but an argument that the Scots, too, should seek "a wise, virtuous, and independent government" for Scotland (Michael Durey, Transatlantic Radicals and the Early American Republic (Lawrence: University Press of Kansas, 1997), 74; Oxford English Dictionary, http://dictionary.oed.com, s.v. "whig")
23. Caroline Robbins, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thought from the Restoration of Charles II until the War with the Thirteen Colonies (New York: Atheneum, 1959)
24. On "Power and Liberty: A Theory of Politics" in Revolutionary America, see Bailyn, Ideological Origins, chap. 3, 55-93
25. On how colonial Americans recognized their role in the larger sweep of the history of liberty, see David Thomas Konig, "Constitutional Contexts: The Theory of History and the Process of Constitutional Change in Revolutionary America," in Constitutionalism and American Culture: Writing the New Constitutional History, ed. Sandra F. VanBurkleo, Kermit Hall, and Robert J. Kaczorowski (Lawrence: University Press of Kansas, 2002), 3-28
26. Paul S. Boyer, "Borrowed Rhetoric: The Massachusetts Excise Controversy of 1754," William and Mary Quarterly, 3d. ser., 21 (1964): 328-51. The episode in question reached back to a British controversy of 1733
27. James Burgh, "Conclusion," in Political Disquisitions: An Enquiry into Public Errors, Defects, and Abuses. Illustrated by, and established upon Facts and Remarks, extracted from a variety of Authors, ancient and modern. Calculated to draw the timely attention of Government and People to a due Consideration of the Necessity, and the Means, of Reforming those Errors, Defects, and Abuses; of Restoring the Constitution, and Saving the State, 3 vols. (Philadelphia, 1775), 3: 267
28. Burgh's and Franklin's mutual affinity is worth noting, especially in view of the similarities between the former's Dignity of Human Nature (1754) and the letter's Poor Richard's Almanack, which was published from 1733 to 1758. In fact, the authorship of "The Colonist's Advocate" letters (1770) has been attributed to both men. Carla Hay, "Benjamin Franklin, James Burgh, and the Authorship of 'The Colonist's Advocate' Letters," William and Mary Quarterly, 3rd ser., 32 (1975): 111-24
29. John Adams, The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations by his Grandson Charles Francis Adams, 10 vols. (Boston: Little, Brown, 1850-56), 9: 350-51
30. I am indebted to Prof. Richard Sher for bringing Bell's edition of Common Sense and the list of subscribers in the Philadelphia edition of the Disquisitions to my attention. The list can be found at the beginning of volume III. In advertising the American edition, Burgh announced that this newly completed third volume was "peculiarly necessary at this Time for all the Friends of CONSTITUTIONAL LIBERTY, whether Britons or Americans." Jefferson To Thomas Mann Randolph, May 30, 1790, The Papers of Thomas Jefferson, ed. Julian P. Boyd et al., 28 vols. (Princeton: Princeton University Press, 1950-), 16: 449
31. Robbins, Commonwealthman, 364-65
32. Burgh, Political Disquisitions, 2: vii; "Conclusion," 279, 3: 336 1
33. John Jay, The Federalist #5, 24
34. Malcolm, To Keep and Bear Arms, largely confines itself to the seventeenth century and then leaps forward in time to 1791 without mention of the profound eighteenth-century events and struggles that intervened and provided a powerful cautionary history lesson to those whose reservations about the Constitution led to the drafting and ratification of the Second Amendment. For a critique, see Lois Schwoerer, "To Hold and Bear Arms: The English Perspective," Chicago-Kent Law Review 76 (2000): 27-60
35. Daniel Walker Howe argues for a Scottish social and intellectual, though less explicitly political, perspective in "Why the Scottish Enlightenment Was Useful to the Framers of the American Constitution," Comparative Studies in Society and History 31 (1989): 572-87
36. For Scottish Enlightenment influence on state constitutions, see Durey, Transatlantic Radicals, 51 . Scottish radicals chafed at their country's subordination under "the celebrated Union," and the American Revolution provided not only a democratizing example to emulate, but an argument that the Scots, too, should seek "a wise, virtuous, and independent government" for Scotland (ibid., 74). Also useful is Andrew Hook, Scotland and America: A Study of Cultural Relations, 1750-1835 (Glasgow and London: Blackie, 1975)
37. James Madison's education at Princeton, whose president the Scot John Witherspoon exerted enormous influence over students, is but one example. Irving Brant, James Madison. The Virginia Revolutionist, 6 vols. (Indianapolis: Bobbs-Merrill, 1941), 1: 77
38. For a survey of the importance accorded this connection in American historiography, see Richard Sher's remarks in Richard B. Sher and Jeffrey R. Smitten, eds., Scotland and America in the Age of the Enlightenment (Princeton: Princeton University Press, 1990), 1-13
39. John Robertson, The Scottish Enlightenment and the Militia Issue (Edinburgh: J. Donald, 1985), 6
40. J. R. Western, The English Militia in the Eighteenth Century. The Story of a Political Issue, 1660-1802 (London: Routledge & Kegan Paul, 1965), 162
41. W. A. Speck, The Butcher: The Duke of Cumberland and the Suppression of the 45 (Oxford: Blackwell, 1981), 173
42. Peter Hume Brown, History of Scotland, 3 vols. (Cambridge: Cambridge University Press, 1909), 3: 328n
43. William Robertson, The History of Scotland during the Reigns of Queen Mary, and King James VI. Till his Accession to the Crown of England, with a Review of Scottish History to that Period, 11th edn. (1787
44. Burgh, Political Disquisitions, 3: 351; 2: 412, 417
45. John Robertson, Scottish Enlightenment and the Militia, 9. Robertson provides other examples of British writers whose works enjoyed a wide readership and powerful influence in the American Revolution, especially in the shared opposition to a standing army. Among them were Andrew Fletcher of Saltoun, whose impact will be discussed below
46. Speck, The Butcher, 137-73 (quotations at 145, 169)
47. Alexander Carlyle, The Question Relating to a Scots Militia Considered in a Letter to the Lords and Gentlemen who have Concerted the Form of a Law for that Establishment (Edinburgh, 1760), 12-13
48. A Tree Account of the Behaviour and Conduct of Archibald Stewart, Esq.; late Provost of Edinburgh (1748)
49. cited by David R. Raynor, ed., "Sister Peg": A Pamphlet Hitherto Unknown by David Hume (Cambridge: Cambridge University Press, 1982)
50. T. A. Critchley, The Conquest of violence: Order and Liberty in Britain (London: Constable, 1970), 59-67
51. Eliga Gould, The Persistence of Empire: British Political Culture in the Age of the American Revolution (Chapel Hill: University of North Carolina Press, 2000), 72-105
52. Not all Scots favored the militia, and many - especially the poor - resented the possibility of enforced service; for the dissenters, see Gould, Persistence, 95-96
53. Nevertheless, the demand for a Scottish militia enjoyed broad support among Scots. Brown, History of Scotland, 3: 341-42, describes this support as existing despite lingering fears that a Scottish militia might be turned to Jacobite purposes
54. Robertson, Militia Issue, 143, 157, 108-12
55. Western, English Militia, 167
56. Carlyle, Scots Militia, 19, 29, 30-31, 36
57. See also "Abstract of a plan for a militia for Scotland," Edinburgh Chronicle, March 17 to 19, 1760, at 9
58. Adam Ferguson, An Essay on the History of Civil Society, ed. Duncan Forbes (1767
59. Additional discussion can be found in Richard B. Sher, "Adam Ferguson, Adam Smith, and the Problem of National Defense," Journal of Modern History 61 (1989): 242-43
60. The History of the Proceedings in the Case of Margaret, Commonly called Peg, only lawful Sister to John Bull, Esq. (London, 1760), 79
61. Richard B. Sher convincingly disputes Hume's authorship in Philosophical Books, 24 (1983): 85-91
62. [George Dempster,] Reasons for Extending the Militia Acts to the Disarmed Counties of Scotland (Edinburgh, 1760), 11, 16, 18, 20
63. Adam Ferguson, Reflections Previous to the Establishment of a Militia (1756)
64. cited by Richard B. Sher, Church and University in the Scottish Enlightenment: The Moderate Literati of Edinburgh (Princeton: Princeton University Press, 1985), 221
65. J. R. Western, "The Formation of the Scottish Militia in 1797," Scottish Historical Review 34 (1955): 1-18.37 Geo. III, c. 103 (1796). The preamble to this act reads, "Whereas it has been found, from experience, that the well ordering and disciplining the militia in England and Wales, has essentially contributed to the safety of the united kingdom; and whereas it would further contribute to the same purpose, and tend to repel any attempt which the enemies of this country may make to effect a descent upon this kingdom, if a well ordered and disciplined militia were established in that part of the united kingdom called Scotland; and whereas the laws in being for the regulation of the fencible men, or militia, in Scotland, are defective and ineffectual. . . ."
66. Ned Landsman, "The Legacy of British Union for the North American Colonies: Provincial Elites and the Problem of Imperial Union," in A Union for Empire: Political Thought and the British Union of 1707, ed. John Robertson (Cambridge: Cambridge University Press), 297
67. J. G. A. Pocock, "Empire, State, and Confederation: The War of American Independence as a Crisis in Multiple Monarchy," in ibid., 338
68. Robertson, Militia Issue, 52
69. Rosalind Mitchison, "The Government and the Highlands, 1701-1745," in Scotland in the Age of Improvement. Essays in Scottish History in the Eighteenth Century, ed. N. T. Phillipson and Rosalind Mitchison (Edinburgh: University Press, [1970]1996), 40
70. Antimilitia legislators objected to local control even over the recommendations of Henry Dundas, the powerful solicitor general of Scotland, dubbed "Henry the Ninth," that a Scottish "melletia" would help stabilize society and end the massive emigration of Scots. Bernard Bailyn, Voyagers to the West. A Passage in the Peopling of America on the Eve of the Revolution (New York: Knopf, 1986), 46-51
71. Robertson, Militia Issue, 136-37
72. Eliga H. Gould, "To Strengthen the King's Hands: Dynastic Legitimacy, Militia Reform and the Idea of National Unity, 1745-1760," Historical Journal 34 (1991): 329-18
73. As argued, for example, by Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, 2nd ed. (Oakland, Cal.: The Independent Institute, 1994), 47
74. Andrew Fletcher, "A Discourse of Government With relation to Militia's" [1698], in Political Works, ed. Robertson, 24-26
75. Fletcher, "Two Discourses Concerning the Affairs of Scotland; Written in the Year 1698," ibid., 68-69
76. Adam Smith, for example, applied his belief in the superiority of the specialization of labor to argue that "the progress of manufactures, and the improvement in the art of war" made universal militia service harmful to the economy and produced a military force inferior to a standing army (An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and Andrew S. Skinner, 2 vols. [Indianapolis: Liberty Fund, 1981], 2: 689-708)
77. "The Declaration of the Lords Spiritual and Temporal, and Commons Assembled at Westrminster," reprinted in Declaring Rights. A Brief History with Documents, ed. Jack N. Rakove (Boston: Bedford Books, 1998), 41-45, with pertinent clauses at 42, 43
78. Fear of arms-bearing Catholics also infected the debate on an Irish militia, where the inclusion of Catholics was so dreaded that not until 1793 was a bill approved to permit this. Thomas Bartlett, "An End to Moral Economy: The Irish Militia Disturbances of 1793," Past and Present 99 (1988): 41-64
79. Richard Primus, The American Idea of Rights (Cambridge: Cambridge University Press, 1999), 85, 97, 102-3
80. Charles P. Whittemore, A General of the Revolution: John Sullivan of New Hampshire (New York: Columbia University Press, 1961), 13
81. Adams to Burgh, December 28, 1774, Works, 9: 351-52
82. Jefferson to Robert Walsh, December 4, 1818, The Works of Thomas Jefferson, ed. Paul Leicester Ford, 12 vols. (New York: G. P. Putnam's Sons, 1904-5), 10: 119-20
83. Hook, Scotland and America, 71n., posits Witherspoon's influence
84. Stewart J. Brown, "William Robertson (1721-1793) and the Scottish Enlightenment," in William Robertson and the Expansion of Empire, ed. Stewart J. Brown (New York: Cambridge University Press, 1997), 20-21
85. Josiah Quincy, Jr., "Observations on the Act of Parliament Commonly Called the Boston Port Bill; with Thoughts on Civil Society and Standing Armies" [Boston, 1774]
86. Memoir of the Life of Josiah Quincy, Junior, of Massachusetts Bay: 1744-1775, ed. Josiah Quincy, 3rd ed., ed. Eliza Susan Quincy (Boston: Little, Brown, 1875), 303, 338
87. Journals of the Continental Congress, 1774-1789 edited from the Original Records, ed. Worthington Chauncey Ford et al., 34 vols. (Washington: Government Printing Office, 1904-37), 24: 83
88. Jefferson to Robert Skipwith, August 3, 1771, in The Papers of Thomas Jefferson, 1: 76-81
89. Jefferson to John Minor, Works, August 30, 1814, 11: 424
90. Creating the Bill of Rights: The Documentary Record from the First Federal Congress, ed. Helen E. Veit et al. (Baltimore: Johns Hopkins University Press, 1991), 182
91. Like the Third Amendment, the second must be viewed within the context of federalism. The four states that dealt with the quartering of troops in their own constitutions or declarations of rights all banned it in peacetime but granted to their legislatures the authority to order it in wartime. William S. Fields and David T. Hardy, "The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History," American Journal of Legal History 35 (1991): 419-20
92. Jefferson to Adams, May 16, 1777, The Adams-Jefferson Letters: The Complete Correspondence Between Thomas Jefferson and Abigail and John Adams, ed. Lester J. Cappon (Chapel Hill: University of North Carolina Press, 1988), 4
93. Adams to Jefferson, May 26, 1777, ibid., 5
94. On the extent of this debate, see Robertson, Union for Empire, passim
95. Journals of the Continental Congress, 5: 1082
96. The Records of the Federal Convention of 1787, ed. Max Farrand, rev. ed., (New Haven: Yale University Press, 1937), 1: 405
97. During this visit - he toured again in 1771 - Franklin had been entertained by Lord Kames, David Hume, Adam Ferguson, Adam Smith, and William Robertson. Hook, Scotland and America, 18-19
98. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, ed. Jonathan Elliot, 5 vols. (1888; reprint New York: Burt Franklin, 1974), 4: 289, 299
99. Veit, Creating the Bill of Rights, 19
100. Don Higginbotham, The War of American Independence: Military Attitudes, Policies, and Practice 1763-1789 (1971
101. In reciting the legislative history of the militia clauses, Jack Rakove concludes that the discussion surrounding them "explicitly recognized that the militia was to be the joint object of congressional and state legislation" ("The Second Amendment as the Highest State of Originalism," Chicago-Kent Law Review 76 [2000]: 129-32)
102. Documentary History of the Ratification, 10: 1307
103. The Federalist #73, 497. Publius did not specify the bill vetoed, however
104. "To the Masachusetts Convention," in The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, comp. Bernard Bailyn, 2 vols. (New York: Library of America, 1993), 2: 159
105. Elliot, Debates, 2: 403
106. Madison, Notes, 485
107. David P. Szatmary, Shays' Rebellion. The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980), 78-79
108. Whittemore, General of the Revolution, 204
109. William Pencak, "'The Fine Theoretic Government of Massachusetts is Prostrated to the Earth': The Response to Shays' Rebellion Reconsidered," in In Debt to Shays: The Bicentennial of an Agrarian Rebellion, ed. Robert A. Gross (Charlottesville: University Press of Virginia, 1993), 128-32, 142
110. George Washington referred to "combustibles in every State" endangering the republic with threats of violent insurrection. Higginbotham, "Federalized Militia Debate," 43-44
111. Madison, Notes, 513. Akhil Reed Amar recognizes the presence of a general, nonspecific fear of being disarmed: "The Second Amendment was designed to make clear that any such congressional action was off-limits" (Bill of Rights, 50). He provides no historical background or support for this claim, however. Debate on the Constitution, 2: 552
112. Bailyn, Voyagers, 502-6, quotation at 503
113. For an examination of these competing notions of the legitimate use of arms, see Wayne E. Lee, Crowds and Soldiers in Revolutionary North Carolina: The Culture of Violence in Riot and War (Gainesville: University Press of Florida, 201), 46-47, 72-73, 94
114. "An Act for Preventing Tumultuous and Riotous Assemblies" can
115. Duane Meyer, The Highland Scots of North Carolina (Raleigh: [North Carolina] State Department of Archives and History, 1963), 65-68, notes that many Highlanders had come from Argyllshire, home of the Campbells and the Duke of Argyle, who had defeated the Jacobites in 1715
116. Elliot, Debates, 4: 203, 244-45
117. Compare with Veit et al., Creating the Bill of Rights, 12, 19-20
118. Congress submitted the Bill of Rights to the states in September 1789, and North Carolina ratified the Constitution in November. Louise Irby Trenholme, The Ratification of the Federal Constitution in North Carolina, Columbia University Studies in History, Economics and Public Law #363 (New York: Columbia University, 1932), 233
119. Mason to Jefferson, May 26, 1787, Documentary History of the Ratification, 18: 79
120. Elliot, Debates, 3: 378-80
121. Documentary History, 17: 252, 253
122. Hamilton, The Federalist #25, 162; #29, 183-84
123. "Federal Farmer," "An Additional Number of Letters to the Republican," May 2, 1788, Documentary History, 17: 363; 2: 509
124. Sanford Levinson, "The Embarrassing Second Amendment," Yale Law Journal 99 (1989): 644, 645
125. Eugene Volokh, "The Commonplace Second Amendment," New York University Law Review 73 (1998): 793
126. For discussions of this variety, as well as of the historical pressures acting on their construction in this period, see William D. Popkin, Statutes in Court: The History of Statutory Interpretation (Durham: Duke University Press, 1999), 7-57
127. and David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), passim
128. William Blackstone, Commentaries on the Laws of England [1755-69], facsimile, 4 vols. (Chicago: University of Chicago Press, 1979), 1: 59-60
129. David Thomas Konig, "Legal Fictions and the Rule(s) of Law: The Jeffersonian Critique of Common-Law Adjudication," in The Many Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (Chapel Hill: University of North Carolina Press, 2001), 97-117. As a law student, Jefferson commonplaced a case that turned on the meaning of a preamble. Item #469 in (unpaged) Legal Commonplace Book, manuscript in Library of Congress
130. "Autobiography," in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb and Albert Ellery Bergh, 20 vols. (Washington, D.C.: Thomas Jefferson Memorial Foundation, 1903-04) 1: 67
131. Thomas Jefferson, A Manual of Parliamentary Practice: for the Use of the Senate of the United States, 2nd ed. (George Town: Milligan and Cooper, 1812), in Jefferson's Parliamentary Writings, ed. Wilbur Samuel Howell (Princeton: Princeton University Press, 1988), 383-84
132. Jefferson's citations were, respectively, Anchitell Grey, Debates of the House of Commons, from the Year 1667 to the Year 1694 (London, 1769), 431
133. Henry Scobell, Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills, Together with Several Rules & Customs, which by Long and Constant Practice Have Obtained the Name of Orders of the House, Gathered by Observation and out of the Journal Books from the Time of Edward 6 (London, 1670), 50
134. Blackstone, Commentaries, 1: 138-39
135. Cecil S. Emden, The People and the Constitution: Being a History of the Development of the People's Influence in British Government. 2nd ed. (Oxford: Clarendon, 1956), 75-76
136. Documentary History. 10: 1306
137. The final House version also contained several slight stylistic changes. The progress of textual change can be followed in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, ed. Neil H. Cogan (New York: Oxford University Press, 1997), 169-76
138. Rakove, "Highest Form of Originalism," 126, 128-29, 159
139. Primus, American Idea, 102-3
140. Levinson describes each of these as an "ignored patch of text in our constitutional conversations" ("Embarrassing Second Amendment," 640). See also Yassky, "Second Amendment," 665