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I thank Joe and Henry for the cites and link. There
is also a third article available from the link Henry
provided.
Konig's article (I got it via Westlaw) is
thoughtful and well-written, but contrary to claims by the
author and others in the same forum, the Scottish debates have not
been previously ignored. See my article published last fall, "The
Highest Possible Generality: The Militia and Moral Philosophy in Enlightenment
Scotland," vol. 15 Journal on Firearms and Public Policy
93.
As I show in my article, the participants
in the Scottish debate conceived of the relationship between the
individual and the state as reciprocal in a way characteristic
of Enlightenment thought. Moreover, the Scottish
debate was primarily an intellectual, rather than political,
debate. Konig's theory, that the Second Amendment occupies some nether
world between the collectivity and the individual, fails
to account for the intellectual context of Enlightenment
Edinburgh, as well as rendering the amendment a legal nullity. Konig's supposedly integrative theory
also fails to integrate the direct evidence pertaining to an
American private right, e.g. the Pennsylvania Minority proposal and
Tench Coxe's explication of the amendment. But the article is thoughtful
and well-written, and I recommend it.
Konig's supporters are claiming his
theory liberates them from the "states right" theory. I note that this
places them at odds with the 9th Circuit, which takes the position that the
Second Amendment is a legal provision relating to the allocation of militia
powers. But I can understand why Cornell, Uvmiller, and
Merkel are eager to find a new theory, since I have shown
elsewhere that the states' right theory is untenable in the face of the
susceptibility of state militia regulation to federal preemption. See "Exposing
the Second Amendment: Federal Preemption of State Militia Legislation" 79 U.
Det. Mercy L.R. 39.
Cheers,
J. Norman Heath
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