*Associate Professor of History, Ohio State University. I would like to thank Steve Conrad, David Konig, Suzanna Sherry, and Eugene Volokh for reading earlier drafts of this essay.

Tucker and Joseph Story, in order to support their claim that a broad consensus existed in post-Revolutionary America on the meaning of the right to bear arms. 4

with the assumption of a broad consensus, historical scholarship has increasingly embraced a pluralist model of early American political and constitutional thought. 8

framers shared our world view: "The 1787 Constitution and the first twelve amendments," Powell noted, "were written and ratified by people whose intellectual universe was distant from ours in deeply significant ways." 12 The second error, also identified by Powell and committed by the Standard Modelers, is to forget that "[cjonsensus or even broad agreement among the founders is a historical assertion to be justified, not assumed." 13 When Standard Modelers claim that they have produced voluminous evidence to demonstrate such a consensus, they fall into an even more deeply rooted historical fallacy: rather than demonstrate the existence of a broad cultural agreement, supporters of the Standard Model have assumed that a common set of terms implied a deeper consensus on what those terms meant.

says written in the last fifty years, "Meaning and Understanding in the History of Ideas." 17 In that essay, Skinner makes a vital distinction between "the occurrence of the words (phrases or sentences) which denote the given idea, and the use of the relevant sentence by a particular agent on a particular occasion with a particular intention (his intention) to make a particular statement." 18 The approach of Standard Modelers does not tell us much about the intent of the authors who wrote these texts. What did Federalists and Anti-Federalists each mean by the right to bear arms? The Standard Model suffers from the problem that mars so much law office history: a failure to adequately contextualize constitutional texts. To understand what a particular historical actor meant when he wrote about the right to bear arms requires scholars to immerse themselves in the surviving evidence from this period and to analyze published and unpublished sources, private comments as well as public statements. Indeed, in addition to the plethora of traditional textual sources, one must explore the political and social texts from this period. The behavior of the historical actors who wrote these texts must be read alongside their published statements. 19

stood this term. The notion of the commonplace itself needs to be understood historically.

text, they raise serious doubts about the historical validity of the Standard Model.

The people have a right to bear arms for the defense of themselves and the State; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up. And the military should be kept under strict subordination to, and governed by the civil power. 29

Shortly after adopting this language into their constitution, Pennsylvanians enacted a stringent loyalty oath. The Test Acts, as they were known to contemporaries, barred citizens who refused to take the oath from voting, holding public office, serving on juries, and transferring real estate. Individuals who refused the oath could also be disarmed, as "persons disaffected to the liberty and independence of this state." 30 The Acts thus stripped many essential rights from a large segment of the population, perhaps as much as forty percent of the citizenry. Both the timing and language of the Acts suggests that they were not simply an emergency measure enacted during time of war, but a reflection of a particular republican ethos that was antithetical to modern liberal ideas about rights. As historian Douglas Arnold notes, "the avowed policy of the architects of the test acts was, thus, not simply to provide for internal security but to reduce the political community to the ‘faithful." 31 Efforts to challenge the

constitutionality of the acts were unsuccessful and they remained in effect until abolished by the legislature in 1789. Throughout this period Pennsylvania’s Constitutionalists, the group who would become the leading Anti-Federalists in the state, defended the Acts.

stitutionalists certainly believed in freedom of the press, these same individuals also accepted the notion of seditious libel. Support for these two seemingly contradictory propositions did not mean that Constitutionalists were hypocrites. The appropriate means to both guard liberty and restrain licentiousness was to have the jury empowered to determine both the facts and the law on questions of libel. The conception of liberty that Constitutionalists embraced looked to the jury to protect liberty and to enforce communal norms. Because of this conception of liberty, Pennsylvania’s constitution granted enormous latitude to the legislature to enact laws to promote the public good. Thus, for example, the authors of the Pennsylvania constitution showed no reservations about passing legislation banning the theater in Philadelphia as a threat to public virtue. Such a measure was perfectly compatible with constitutional ideas behind the Test Acts. Closing the theater or excluding large numbers of the population from claiming a right to gun ownership sprang from the same republican conception of liberty. 35 Once again, the notion that the Pennsylvania state constitution protected a modern liberal rights based vision of constitutionalism is simply anachronistic.

stitution of 1776, believed that a much wider group of citizens could be excluded from the right to bear arms.

If [the people] yield up all their natural rights they are absolute slaves to their governors. If they yield up less than is necessary, the government is so feeble, that it cannot protect them, — To yield up so much, as is necessary for the purposes of government; and to retain all beyond what is necessary, is the great point. 38

Certain rights could never be ceded by individuals. Religious conscience was the most obvious example of a right which could not be renounced. Other rights could only be compromised when the good of society demanded such sacrifices. Individual liberty could never be sacrificed for the good of a particular interest, or faction. Limits on liberty were permissible as long as laws were enacted by representatives of the people. It was vital, however, for citizens to remain active, vigilant, and even suspicious of government, so that representatives would never lose sight of the public good. This attitude did not mean that AntiFederalists were anti-statist. 39 Anti-Federalists placed tremen-

dous faith in the ability of the state to legislate on behalf of the public good. It was precisely because the state government could be counted on to represent the will of the people that An Old Whig advised his readers that, "[i]f, indeed, government were really strengthened by such surrender" of rights, and "if the body of the people were made more secure, or more happy by the means, we ought to make the sacrifice." 40 He reiterated this by declaring that "if the good of his country should require it; and every individual in the community ought to strip himself of some convenience for the sake of the public good." 41 Republican notions of citizenship, of sacrificing some measure of one’s liberty to serve the public good, were deemed essential. 42 "[W]herever the subject is convinced that nothing more is required from him, than what is necessary for the good of the community, he yields a cheerful obedience, which is more useful than the constrained service of slaves." 43 An Old Whig willingly sacrificed a considerable degree of liberty, including the rights of dissenting religious and political minorities who were effectively disenfranchised and disarmed by state loyalty oaths, when the good of the community demanded such concessions.

views expressed in the Dissent attained a semi-official status as the statement of the Anti-Federalist minority of Pennsylvania’s ratification convention. The Dissent not only provided a concise statement of Anti-Federalist objections to the Constitution, but also offered one of the first proposals for amendments to the Constitution, including two provisions on the right to bear arms.

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers....

The inhabitants of the several states shall have the liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein bj any laws to be passed by the legislature of the United States. 45

The key phrase in the first provision of the Dissent, which is generally overlooked, is the clause that allows individuals who pose a danger to the public to be disarmed. Anti-Federalists clearly read this clause in extremely broad terms. The second

provision, it is worth noting, bars Congress but not the states from placing restrictions on hunting. Rather than revealing an expansive individual right to bear arms, the Dissent reflects the strong states’ rights conception of liberty defended by Pennsylvania Anti-Federalists. While Anti-Federalists in this state may have feared a distant government, they placed enormous faith in their state government.

individual rights is one of the most serious anachronisms in recent discussions of Anti-Federalism by supporters of the Standard Model.

Federalists, casting the opposition to the Constitution as an essentially populist democratic movement, ignores the thought of elite Anti-Federalism and confuses the profound differences separating moderate democrats from the most radical wing of the Anti-Federalist coalition. 52

leveller democracy. 55 Moderate democrats of the middling sort, such as Federal Farmer, were more apt to fear the dangers of an armed mob than they were to trust that such a mob might serve as the ultimate check on government tyranny. Federal Farmer and Pennsylvania’s Old Whig each placed their faith in the state militias, not mobs, as the appropriate check on despotism, and were thus willing to limit gun ownership.

tionary era were Lockeans, such a claim is a truism. Most Americans did accept a right of revolution. Such a right, however, was not a constitutional check, but a natural right that one could not exercise under a functional constitutional government. The people had a right to abolish their government and resort to armed resistance in defense of their liberties when the constitutional structures of government ceased to function. Even if some Anti-Federalists accepted the notion that certain natural rights might be judicially enforceable, few mainstream AntiFederalists would have accepted that revolution was such a right. 59

Anti-Federalists embraced a radical ideology that set them apart from the more moderate democratic ideas expressed in documents such as the Dissent of the Minority or the essays of An Old Whig. For these plebeian populists, the most radical voice among Anti-Federalists, the rights of the Federalist minority in Carlisle were easily cast aside when they contradicted the will of the local community. Plebeian populists were simple majoritarians who embraced an extreme form of local democracy. When Anti-Federalists challenged Federalists revelers in the streets of Carlisle a riot ensued. The Anti-Federalist instigators of the riot were arrested and jailed. When the rioters refused the opportunity for bail, local Anti-Federalists organized themselves through the militia, marched on the jail, and freed the prisoners. For plebeian populists the release of the prisoners was an example of direct democracy in action. Events in Carlisle vindicated their radical conception of constitutionalism and strengthened their resolve to oppose the new government. In contrast to the more sober voices of Anti-Federalist authors such as An Old Whig or Federal Farmer, the Carlisle Rioters did not fear the mob. For these Anti-Federalists the actions of the crowd were an authentic expression of the will of the people. 62

Riot, plebeian populists chose to bypass both the state courts and the state militia. In contrast to the authors of the Dissent and An Old Whig, plebeian populists were not advocates of states’ rights but supporters of a radical localist vision of democracy. Yet even when plebeians invoked a right to bear arms to check despotism, it was not a constitutional right they asserted, but rather a vaguely articulated natural right of revolution. Their resistance was not couched in terms reminiscent of the language of either the Pennsylvania state constitution or the "Dissent of the Minority."

eyes of elites. Extra-legal actions, such as those taken by AntiFederalists in Carlisle, were little more than mobocracy. For the eminent Massachusetts Anti-Federalist Elbridge Gerry, the Carlisle riot was a bitter reminder of the levelling tendencies to be found among the populace. Although an outspoken opponent of the Constitution, Gerry shared the Federalist belief that the nation’s political problems stemmed from an "excess of democracy." 68 When he learned that the "people threatened the Justice in Carlisle to pull down his House, and the houses of the federalists," Gerry expressed grave concern that "we shall be in a civil War," adding his hope that "[may] God... ‘avert the evil!" 69 Rather than solidifying opposition to the Constitution, the plebeian radicalism of the Carlisle rioters set them in opposition to mainstream Anti-Federalists. 70

moral law might be opposed and yet the government respected." 75 Findley himself repudiated plebeian populist constitutionalism. For plebeian populists, the will of the people could be reconstituted spontaneously in local organizations such as the militia, the jury, or even the crowd. Findley. and other mainstream Anti-Federalists rejected this notion. "All men of discretion" realized "that if they permitted government to be violently opposed, even in the execution of an obnoxious law, the same spirit would naturally lead to the destruction of all security and order; they saw by experience that in a state of anarchy the name of liberty would be [profaned] to sanction the most despotic tyranny." 76

Petrikin and Findley clearly interpreted the legacy of the Revolution in different ways. 79

of Govermt for themselves— that they should have a govermt who had no President no King." 86 Petrikin’s radicalism embraced not only the rituals of plebeian culture, but an extreme form of democratic localism. He continued to affirm the legitimacy of plebeian rituals of protest and extra-legal action. The right of revolution, Petrikin argued, had not been cast aside with the establishment of the Constitution. In contrast to Findley and Whitehil, Petrikin believed that westerners were in exactly the same relationship to the new government as Americans had been with Britain.

questions about the assumption of the Standard Model that there was a broad consensus in post-Revolutionary American on how the right to bear arms ought to be interpreted. Efforts to discern a monolithic original intent on this issue seem historically naive. 89 The case of Pennsylvania suggests that Americans may have been as deeply divided then as they are now over this question. The idea that radical localists such as the AntiFederalist Carlisle rioters might have meant the same thing as the ultra-nationalist Joseph Story when they spoke about the right to bear arms seems high unlikely. 90 Even if the case of Pennsylvania Anti-Federalism proves to be exceptional, the claim that a single paradigm can explain all of American constitutional thought on an issue as complicated as the right to bear arms runs counter to dominant trends in recent historical scholarship on the character of early American constitutional and p0utica! thought. 91 It would be nothing short of astonishing if there were no significant regional or class variations on an issue as complex as the right to bear arms? 92 Without further historical research and analysis, the truth of the Standard Model appears to be anything but a commonplace.

NOTES

1. See Randy E. Barnett and Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139 (1996). text@note1

2. Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). text@note2

3. On the use of the term "Standard Model" to describe the emerging body of scholarship on the Second Amendment, see Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461-71 (1995). text@note3

4. See, e.g., Levinson, 99 Yale U. (cited in note 2); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale Li. 1131 (1991); Eugene Volokh, The Amazing Vanishing Second Amendment, 73 N.Y.U. L. Rev. 831 (1998). text@note4

5. For explicit historical critiques of the Standard Model, see Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 L. & Hist. Rev. 567 (1998), and Gary Wills, To Keep and Bear Arms, N.Y. Rev, of Books 62 (Sept. 21, 1995). For a response to Wills, see Letters by Sanford Levinson, David C. Williams, and Glenn Harlan Reynolds, N.Y. Rev, of Books 61 (Nov. 16, 1995). The efforts of Standard Modelers to overturn the traditional states’ rights argument has blinded legal scholars to the centrality of federalism to the debate over the Bill of Rights. For a useful corrective to this view, see Don Higginbotham, The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship, 55"Wm. & Mary 0.39(1998).

For dissent within the legal academy see Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev. 57 (1995), and Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VaIp. U. L. Rev. 107 (1991). For an example of historical scholarship supportive of the individual rights position central to the Standard Model, see Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. of Am. Hist. 599 (1982); for a counter-argument that the amendment reflected a collective right rooted in civic republican ideals, see Lawrence Delbert Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. of Am. Hist. 22 (1984); see also The Right to Bear Arms: An Exchange, 71 J. of Am. Hist. 587 (exchange between Shalhope and Cress). text@note5

6. The most recent study of ratification supports the notion that neither Federalist nor Anti-Federalist ideas can be fit into a single explanatory model. Michael Gillespie and Michael Lienesch, eds., Ratifying the Constitution (U. Press of Kansas, 1989). For another useful effort to chart the range of discourses available to Americans during the struggle over the Constitution, see Isaac Kramnick, The "Great National Discussion": The Discourse of Politics in 1787,45 Wm. & Mary 0. 3 (1988). text@note6

7. It is also ironic that the Standard Model in physics is itself being transformed, as competing versions of string theory have been propounded in an effort to move closer to a more complete account of the universe. See George Johnson, Almost in Awe, Physicists Ponder Ultimate Theory, N.Y. Times D8 (Sept. 22, 1998). text@note7

8. The last effort to formulate such a unified field theory was Robert E. Shalhope, Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography, 29 Wm. & Mary 0. 49 (1972). In his more recent work, Shalhope has embraced a more pluralist conception of early American political culture. See Robert E. Shalhope, Roots of Democracy: American Thought and Culture, 1760-1800 (Twayne, 1990). For a post-mortem on republican synthesis, see Daniel T. Rodgers, Republicanism: The Career of a Concept, 79 J. of Am. Hist. 11(1992). Among historians, pluralism now seems to be the ascendent paradigm for understanding the ideologies of the Founding era. text@note8

9. See Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 Fordham L. Rev. 87 (1997). text@note9

10. Thus, Akhil Amar cites Sanford Levinson, and David Williams cites Akhil Amar, and Glen Harlan Reynolds cites Levinson, Amar, and Williams. None of these articles has been subjected to the sorts of blind peer review that scholarship published in journals such as the William and Mary Quarterly, Journal of American History or the Law and History Review must pass before publication. Once historical errors enter this closed system, they are endlessly reproduced. text@note10

11. H. Jefferson Powell, Rules for Originalists, 73 Va. L. Rev. 659 (1987). text@note11

12. Id.at673. text@note12

13. Id.at684 text@note13

14. Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998). text@note14

15. Id.at8lO. text@note15

16. Id. text@note16

17. Quentin Skinner, Meaning and Understanding in the History of Ideas, in James Tully, ed., Meaning and Context Quentin Skinner and His Critics 29-67 (Princeton U. Press, 1988). For a thoughtful discussion of the implications of Skinner’s essay for constitutional theory, see Paul Brest, The Misconceived Quest for the Original Understanding, in Jack N. Rakove, ed., Interpreting the Constitution: The Debate Over Original Intent 227-62 (1990). text@note17

18. Skinner, Meaning and Understanding at 55 (cited in note 17). text@note18

19. On the absence historical contextualization in constitutional theory, see Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 Colum. L. Rev. 523 (1995). On the need to consult non.traditional texts, including social texts such as crowd behavior, to recover lost constitutional voices, see Saul Cornell, Moving Beyond the Canon of Traditional Constitutional History: Anri.Federalists, the Bill of Rights, and the Promise of Post-Modern Historiography, 12 L and Hist. Rev. 1(1994). text@note19

20. Volok.h, 73 N.Y.U. L Rev, at 810 (cited in note 14). Volokh’s reading of the Second Amendment has been challenged by David Williams, who stresses the republican character of the Second Amendment. David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991), and David C. Williams, Response: The Unitary Second Amendment, 73 N.Y.U. L. Rev. 822 (1988). The problem with this critique is that it also assumes a consensus in post-Revolutionary political and constitutional thought. text@note20

21. On the culture of commonplace books, see Jay Fliegelman, Declaring Independence: Jefferson, Natural Language, and the Culture of Performance (Stanford U. Press, 1993). See also Douglas L. Wilson, Thomas Jefferson’s Early Notebooks, 42 Wm. & Mary Q. 433 (1985); David Konig, Legal Fictions and the Rule(s) of Law: The Jeffersonians Critique of Common Law Adjudication, in Bruce H. Mann and Christopher L Tomlins, eds., The Many Legalities of Early America (1999). On the notion of readers as active producers of meaning, see Kathy Davidson, Revolution and the Word: The Rise of the Novel in America (Oxford U. Press, 1986). text@note21

22. Linda Kerber, The Republican Ideology of the Revolutionary Generation, 37 Am. 0. 474, 474 (1985) (quoting John Adams to Mercy Otis Warren, August, 8, 1807). Kerber’s essay stresses both the variety of different discourses available to Americans during the Revolutionary generation and the ability of republicanism to be re-shaped by different groups to suit their particular political aspirations. Additional evidence of Adams’s frustration with the absence of consensus in America on the meaning of basic concepts such as republicanism may be found in his monumental study, A Defense of the Constitutions of Government of the United States of America (C. Dilly, 1787). text@note22

23. Kerber, 37 Am. 0. at 474 (quoting Adams to Warren) (cited in note 22). text@note23

24. For an excellent model of how different idioms could be fused together in novel ways, see James T. Kloppenberg, The Virtues of Liberalism: Chrisuanüy, Republicanism, and Ethics in Early American Political Discourse, 74 J. of Am. Hist. 9 (1987). text@note24

25. Reynolds, 62 Tenn. L. Rev. (cited in note 3). For other examples of scholarship that has relied on Pennsylvania Anti-Federalist thought, see Thomas B. McAffee and Michael J. Quinlan, Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75 N.C. L. Rev. 781 (1997); Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996); Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Valp. U. L. Rev. 131 (1991). text@note25

26. David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & Politics 1, 39 (1987). text@note26

27. On the distribution of these items and other writings by Pennsylvania Federalists and Anti-Federalists, see Merrill Jensen, ed., 13 The Documentary History of the Ratification of the Constitution, 588-96 (State Historical Society of Wisconsin, 1976) ("DHRC’). text@note27

28. For useful discussions of the different approaches of Federalists and AntiFederalists to the problem of rights, see Paul Finkleman, Between Scylla and Charybdis: Anarchy, Tyranny, and the Debate over a Bill of Rights, in Ronald Hoffman and Peter J. Albert, eds., The Bill of Rights: Government Proscribed 103-74 (U. Press of Virginia, 1997); on the diversity with the ranks of Anti-Federalists, see Saul Cornell, Mere Parchment Barriers? Anti-Federalists, the Bill of Rights, and the Question of Rights Consciousness, in Hoffman and Albert, eds., The Bill of Rights at 175-208. text@note28

29. Pennsylvania Convention, Declaration of Rights, August 21, 1776, in Jack N. Rakove, ed., Declaring Rights: A Brief History With Documents 86-87 (Bedford Books, 1998). text@note29

30. The Test Act was passed 1777. See James T. Mitchell and Henry Flanders, eds., 9 The Statutes at Large of Pennsylvania 110-14 (Wm. Stanley Ray, 1903). The act was amended and the provisions for disarming "persons disaffected to the liberty and independence of this state" strengthened in 1778. Id. at 346-48. text@note30

31. Douglas Arnold, A Republican Revolution: Ideology and Politics in Pennsylvania, 1776-1790 at 109 (Garland Publishing, 1989). Another useful account of the controversy over the Acts may be found in Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790 at 282 (Pennsylvania Historical and Museum Commission, 1942). text@note31

32. For an argument that a similar policy informed gun laws in other states, see Bellesiles, 16 L. & Hist. Rev. (cited in note 5). text@note32

33. See, e.g., Levinson, 99 Yale U. (cited in note 2); Williams, 101 Yale L.J. (cited in note 20). Even in his extremely balanced account, David Hardy does not consider the Test Acts, an omission that calls into question his individualist reading of Pennsylvanian views of the right to bear arms. Hardy, 4 J. L. and Pol. 39 (cited in note 26). Stephen P. Haibrook, The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10 Vt. L. Rev. 255 (1985) provides a cursory treatment of the Acts that both misconstrues the intent and scope of the Acts. Neither Haibrook nor Hardy consults Brunhouse or Arnold’s work. The latter’s 1976 Princeton University doctoral dissertation, originally titled Political Ideology and the Internal Revolution in Pennsylvania, 1776-1790, provides a detailed discussion of the controversy over the Test Acts. text@note33

34. On the connections between the First and Second Amendment and the notion of a checking function, see L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997). Powe’s ideas have been endorsed by J.M. Balkin and Sanford Levinson in The Canons of Constitutional Law, 111 Harv. L. Rev. 963-1013 n.157 (1998). Both of these discussions of free speech rest on outdated historiography tied to the controversy around the work of Leonard Levy. On this debate, see Leonard Levy, Emergence of a Free Press (Oxford U. Press, 1985). For a critique of Levy’s thesis, see David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan. L. Rev. 795 (1985). The terms of this debate have shifted considerably since the publication of Levy’s work. A more historically persuasive effort to root ideas about seditious libel in the context of postrevolutionary constitutionalism may be found in Norman Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (U. of North Carolina Press, 1986). Rosenberg’s work provides a useful corrective to the Levy thesis and its critics. text@note34

35. It is worth observing that on a variety of other constitutional questions, including issues of political economy and representation, Anti-Federalists did articulate a more liberal constitutional vision. For a good illustration of the liberal dimensions of Pennsylvania Anti-Federalism, see Gordon S. Wood, Interests and Disinterestedness in the Making of the Constitution, in Richard Beeman, et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity (U. of North Carolina Press, 1987). On the blending of liberal and republican elements in Anti-Federalist thought, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (U. of North Carolina Press, 1999). text@note35

36. Reynolds, 62 Tenn. L. Rev, at 480 (cited in note 3) (quoting Don B. Kates Jr., The Second Amendment: A Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986)). text@note36

37. In his collection of Anti-Federalist writings, Herbert J. Storing does not identify the authorship of An Old Whig, but evidence for this attribution may be found in a letter from William Shippen, Jr., to Thomas Lee Shippen, (Nov. 18 and 22, 1787), in 2 DHRC at 288 (cited in note 27). These essays were most likely a collective effort of a number of the most prominent members of Pennsylvania’s Constitutionalist party. An Old Whig, Essays of An Old Whig, in Herbert J. Storing, ed., 3 The Complete Anti-Federalist 17 (U. of Chicago Press, 1981). text@note37

38. Id.at33. text@note38

39. The notion that American political thought was strongly anti-statist is central to the argument of Levinson, 99 Yale L.J. (cited in note 2). A similar notion also informs the argument of McAffee and Quinlan, 75 N.C. L. Rev. (cited in note 25). Both of these arguments also rest on a selective reading of the evi4qnce. Most Anti-Federalists clearly placed great faith in their state governments. A more balanced assessment of AntiFederalist views about the relationship between liberty and the state may be found in Robert C. Palmer, , 1776-1791, in William E. Nelson and Robert Palmer, eds., Liberty and Community: Constitution and Rights in the Early American Republic (Oceana Publications, 1987). text@note39

40. An Old Whig, Essays at 49 (cited in note 37). text@note40

41. Id. text@note41

42. Perhaps the best effort to demonstrate how Whig constitutional thought reconciled liberty with republican ideals may be found in John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (U. of Wisconsin Press, 1986), and The Concept of Liberty in the Age of the American Revolution (U. of Chicago Press, 1988). text@note42

43. An Old Whig, Essays at 33 (cited in note 37). text@note43

44. John Smilie, an author of the Old Whig essays, was one of the signers of the Dissent. Although the Dissent was signed by the Anti-Federalist members of the state ratification convention, including Smilie, it was drafted by Samuel Bryan, one of the most important Anti-Federalist essayists. The Address and Reasons of Dissent of the Minority.. ., in 2 DHRC at 617-24 (cited in note 27). Gary Wills notes that this piece was composed in a hurry and is not among the most intellectually powerful representations of Anti.Federalist thought. See wills, N.Y. Rev, of Books at 65 (cited in note 5). While these characterizations may be apt, it is also important to recognize that despite these shortcomings, the Dissent became one of the most widely reprinted Anti-Federalist essays.

In treating Anti-Federalist thought it is important to draw a distinction between those essays that were influential in 1787-88 and those that have become central to the modern scholarly canon. In a number of cases the texts most esteemed by modern commentators were not necessarily the ones most important to Anti-Federalists during ratification. For more on this issue, see Cornell, The Other Founders at 25-26 (cited in note 35). text@note44

45. Dissent of the Minority at 623-24 (cited in note 44). The provisions about hunting and fowling were not emulated by any state ratification conventions when proposals for amendments were debated. text@note45

46. Speech from John Smilie to the Pennsylvania State Convention (Dec. 6, 1787), in 2 DHRC at 509 (cited in note 27). For a discussion of the controversy over the creation of a select militia, see Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 156 (Harvard U. Press, 1995). Malcolm quotes Smilie’s convention speech without placing his statement in the context of Smilie’s earlier involvement with the Test Act controversy. text@note46

47. On the idea of the people as a political fiction, see Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 263-87 (Norton, 1988). The connections between states’ rights and individual rights in Anti-Federalist thought are discussed in Cornell, Mere Parchment Barriers (cited in note 28). text@note47

48. For rather different approaches to the problem of class and rank in this period, see Gordon S. Wood, The Radicalism of the American Revolution (A.A. Knopf, 1992), and Alfred F. Young, ed., Beyond the American Revolution: Explorations in the History of American Radicalism (Northern Illinois U. Press, 1993). The issue of race is even more complex than class. For an argument that race was not an obstacle to gun ownership, see Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown L.J. 309 (1991). For an interpretation that stresses the exclusion of African-Americans, see Bellesiles, 16 L. and Hist. Rev. (cited in note 5). text@note48

49. The claim that Anti-Federalism was essentially democratic is central to both Amar, 100 Yale U. (cited in note 4), and Williams, 101 Yale L.J. (cited in note 20). The problem with this view is that it ignores the complexity and diversity of Anti-Federalism, which included a broad spectrum of political views, some quite democratic and others extremely elitist. text@note49

50. Mark Pitcavage, An Equitable Burden: The Decline of State Militias, 1783 -1 858 (1995) (Ph.D dissertation, Ohio State University). text@note50

51. A number of Anti-Federalists expressed concern over the danger posed by the propertyless, who lacked the virtue associated with a militia composed of yeoman farmers or planters. These Anti-Federalists feared that the rabble might become an instrument of despotism. One forceful expression of this fear occurred in the Virginia Convention. See George Mason, Speech in the Virginia Ratification Convention Debates, in 10 DHRC at 1312 (cited in note 27). Mason believed that state control of the militia provided a solution to this problem by ensuring that virtuous members of the gentry retained positions of authority in the militia. Mason’s thought reflected the hierarchical assumptions of planter society. On this point see Morgan, Inventing the People at 173 (cited in note 47). Recent historical scholarship suggests that even in Virginia the politics of deference was breaking down. For a discussion of how members of the Virginia gentry dealt with the threat posed by an armed population, see Michael A. McDonnell, Popular Mobilization and Political Culture in Revolutionary Virginia The Failure of the Minutemen and the Revolution from Below, 85 J. of Am. History 946,948 (1998). text@note51

52. Cornell, The Other Founders (cited in note 35). text@note52

53. New York’s Federal Farmer also argued that state control of the militia was necessary to prevent the creation of a select militia composed of the propertyless. In contrast to Mason, Federal Farmer viewed the propertyless as a much greater threat to social stability. Federal Farmer, Letters from the Federal Farmer, in Storing, 2 Complete Anti-Federalist at 341-42 (cited in note 37). text@note53

54. The identity of the Federal Farmer has been a subject of considerable controversy. Once thought to be the work of Virginian Richard Henry Lee, the case against Lee is forcefully argued by Gordon S. Wood, The Authorship of the Letters from the Federal Farmer, 31 Wm. & Mary 0. 299 (1974). Wood’s suggestion that Federal Farmer was probably a New Yorker has been elaborated by Robert H. Webking who argues that Federal Farmer may have been the New York merchant Melancton Smith. Robert H. Webking, Melancton Smith and the Letters from the Federal Farmer, 44 Wm. & Mary 0. 510 (1987). For examples of legal scholars who have used an older mistaken attribution of Federal Farmer’s identity, see David T. Hardy, 4 J.L. & Pol. (cited in note 26); Halbrook, 26 Valp. U. L. Rev. (cited in note 25); Anthony J. Dennis, Clearing the Smoke From the Right to Bear Arms and the Second Amendment, 29 Akron L. Rev. 57 (1995); David B. Kopel and Christopher C. Little, Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56 Md. L. Rev. 438 (1997); Williams, 101 Yale U. (cited in note 20); David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring With the People, 81 Cornell L. Rev. 879 (1996); David E. Vandercoy, The History of the Second Amendment, 28 Valp. U. L. Rev. 1007 (1994). text@note54

55. For Federal Farmer’s attack on the levelling democracy, see Federal Farmer, Letters at 224, 227,253 (cited in note 53). text@note55

56. On modem theories of rights, see Ronald Dworkin, Taking Rights Seriously (Duckworth & Co., 1977). For a discussion of the historical evolution of American views of rights, see Michael J. Lacey and Knud Haakonessen, eds., A Culture of Rights: The Bill of Rights, in Philosophy, Politics and Law, 1791-1991 (Cambridge U. Press, 1991). For a critique of modem rights based constitutional and political thought, see Mary Ann Glendon, Rights Talk. The Impoverishment of Political Discourse (Macmillan, 1991). text@note56

57. Reynolds, 62 Tenn. L. Rev, at 472 (cited in note 3). text@note57

58. Levinson, 99 Yale L.J. at 646 (cited in note 2). The issue of citizenship in the post-Revolutionary era was exceedingly complex. Given the problem posed by loyalism, the issue of who might claim the full rights of citizenship is not as simple as Levinson’s caveat implies. As historian James Kettner notes, the idea— common in English law— that "citizenship could comprehend separate legal categories of membership" continued to shape constitutional thought in this period. James Kettner, The Development of American Citizenship, 1608-1870 at 215-16 (U. of North Carolina Press, 1978). For a more elaborate treatment of the exclusionary nature of citizenship during this period, see Rogers M. Smith, Civic Ideals: Conflicting Values of Citizenship in U.S. History (Yale U. Press, 1997). text@note58

59. Modern scholars are divided over the role of natural rights in early American constitutional thought. For a defense of the idea of an unwritten constitution grounded in natural law, see Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987). For alternative views that challenge,, the notion that the Founders expected judges to enforce principles of natural law drawn from an unwritten constitution, see Helen K. Michael, The Role of Natural Law in Early American Constitutionalism: Did the Founders Contemplate Judicial Enforcement of "Unwritten" Individual Rights?, 69 N.C. L. Rev. 421 (1991), and Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215 (1990). text@note59

60. Actions such as the Carlisle Riot and the whiskey Rebellion are also precisely the type of events that provide an opportunity to write a constitutional history from the bottom up. On the notion of writing constitutional history from the bottom up, see Hendrik Hartog, The Constitution of Aspiration and "The Rights That Belong to Us All," 74 J. of Am. Hist. 1013 (1987), and William E. Forbath, Hendrick Hartog, and Martha Minow, Introduction: Legal Histories from Below, 1985 Wis. L. Rev. 759. text@note60

61. Episodes such as the Carlisle Riot and the Whiskey Rebellion, are not part of the current canon of constitutional law. On the concept of a constitutional canon, see Balkin and Levinson, 111 Harv. L. Rev. (cited in note 34), and Saul Cornell, 12 L. & Hist. Rev. (cited in note 19). Williams, 101 Yale U. at 582 (cited in note 20), and 81 Cornell L. Rev. (cited in note 54), deals briefly with the Whiskey Rebellion. Williams cites no contemporary evidence to substantiate his claim that opposition to the Whiskey Rebels was framed in the language of civic republicanism. For an analysis of contemporary responses to the Whiskey Rebellion, see notes 73-88 and accompanying text. text@note61

62. On the Carlisle Riot and the ideology of plebeian populism, see Saul Cornell, Aristocracy Assaileth The Ideology of Backcountry Anti -Federalism, 76 J. of Am. Hist. 1148 (1990). The Standard Modelers generalize populism to all Anti-Federalists. For example, in an influential essay, Amar, 100 Yale L.J. (cited in note 4), argues that AntiFederalism was essentially populist and democratic in spirit. This account not only homogenizes Anti-Federalist thought but seriously distorts the character of Anti~Federalist populism. In particular, Amar does not address the rather different approaches of moderate democrats and plebeian populists to the problem of rights. text@note62

63. Anstocrotis, The Government of Nature Delineated, in Storing, 3 Complete Anti-Federalist at 203 (cited in note 37). Storing did not identify the author in his collection. The attribution is based on a letter from William Petrikin to John Nicholson Carlisle (Feb. 24, 1788), in 2 DHRC at 694 (cited in note 27). text@note63

64. Aristocrotis, Nature Delineated at 203 (cited in note 63). text@note64

65. Letter from Franklin County, Philadelphia Independent Gazeueer (April 30, 1788), in 17 DHRC at 251-52 (cited in note 27). text@note65

66. Id. at 252. text@note66

67. Id. text@note67

68. Gerry’s statements about the dangers of an excess of democracy and the levelling spirit may be found in James Madison, Notes of Debates in the Federal Convention of 1787 at 39 (Ohio U. Press, 1984). Gerry’s.constitutional thought is discussed at length by George A. Billias, Elbridge Gerry: Founding Father and Republican Statesmen (McGrawHill, 1976). Gerry provides an excellent counter example to Akhil Amar’s claim that Anti-Federalists were populist democrats, Amar, 100 Yale Li. (cited in note 4). Elite Anti-Federalists such as Gerry were a vital part of the coalition that opposed the Constitution. For more on elite Anti-Federalist thought, see Cornell, The Other Founders 51-80 (cited in note 35). text@note68

69. Cornell, 76 J. of Am. Hist. at 1169 (cited in note 62) (quoting Elridge Gerry in Madison, Notes of the Debates of the Federal Convention at 39 (cited in note 68)). text@note69

70. For a description of the mood in Carlisle, see "Extract of a letter from Carlisle" dated January 4, 1788, in Independent Gazetteer (Jan. 12, 1788) DHRC Mfm:Pa. 328. text@note70

71. Charles Pettit to Robert Whitehill (June 5, 1788), in 18 DHRC at 154 (cited in note 27). text@note71

72. Charles Pettit to George Washington (March 19, 1791), in DHRC Mfm:Pa. 706. text@note72

73. The best account of the Rebellion is Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution (Oxford U. Press, 1986). text@note73

74. For a discussion of the connection between the Carlisle riot and the Whiskey Rebellion, see Cornell, The Other Founders 200-13 (cited in note 35). text@note74

75. William Findley, History of the Insurrection in the Four Western Counties of Pennsylvania 300 (Samuel Harrison Smith, 1796). text@note75

76. Id. at 177. text@note76

77. Id.at285. text@note77

78. Id. text@note78

79. On plebeian political culture and the rituals of protest, see Alfred F. Young, English Plebeian Culture and Eighteenth Century American Radicalism, in Margaret C. Jacob and James R. Jacob, eds., The Origins of Anglo-American Radicalism 185 (Humanities Press International, 1984). text@note79

80. Cornell, The Other Founders 200-12 (cited in note 35). text@note80

81. Id.at208-09. text@note81

82. Id. text@note82

83. Id. text@note83

84. Id. text@note84

85. Id. text@note85

86. Id. at 119 (testimony of Robert Whitehill). text@note86

87. Thomas P. Slaughter, The Friends of Liberty, the Friends of Order, in Stephen Boyd, ed., The Whiskey Rebellion: Past and Present Perspectives 13 (Greenwood Press, 1985) (quoting Reverend James Carnahan). text@note87

88. On this point, see Bellesiles, 16 L. & Hist. Rev. (cited in note 5). text@note88

89. Historians are far more dubious about identifying a single intent from among the many different positions voiced by the framers and ratifiers of the Constitution. To claim that commentators writing more than generation later meant the same thing seems even more doubtful. For a discussion of the difticuky of weighting the various perspectives articulated during ratification, see Jack N. Rakove, Original Meanings: Politics and ideas in the Making of the Constitution (A.A. Knopf, 1996). text@note89

90. Sanford Levinson links Federal Farmer, James Madison, and Joseph Story, together into a single common stance on the meaning of the Second Amendment. Levinson, 99 Yale U. at 649 (cited in note 2). The example of Pennsylvania suggests that there was no consensus on this issue. The example of Massachusetts provides additional evidence of profound disagreement over how to interpret the right to bear arms. See Hardy, 4 J.L. and Pol. at 40-42 (cited in note 26). text@note90

91. A good sense of the divisions among early American historians may be found in comments collected in The Creation of the American Republic, 1776-1787: A Symposium of Views and Reviews, 44 Wm. & Mary 0. 550(1987). text@note91

92. For two rather different efforts to explore the relationship between regionalism and the emergence of different political cultures in early America, see Jack P. Greene, Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (U. of North Carolina Press, 1988), and David Hackett Fischer, Albion’s Seed. Four British Folkways in America (Oxford U. Press, 1989). On the relationship of class to the problem of rights consciousness, see Hartog, 74 J. of Am. Hist. (cited in note 60). text@note92

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