Partisan expert witnesses, selected, prepared, and presented by the parties, are one of the central features of Anglo-American judicial proceedings. They provide fact finders with essential technical information and are authorized to propound a range of opinions and conclusions that other witnesses are not. Their views are often the deciding factor in hard-fought cases. Yet their association with one party and their apparent partiality have long troubled legal commentators. These concerns have grown in recent years along with the perception, not based on a great deal of empirical evidence, that more and more experts are being used to prove more and more different things in modern American trials.

It is a well-accepted postulate of Canadian constitutional history that, in the years following the confederation of the colonies of British North America in 1867, the law of the Canadian constitution did not concern itself with individual rights. Rather, constitutional law in the late nineteenth century involved the division of legislative powers between the federal and provincial governments—disputes that neither addressed claims to individual liberty nor the power of an unbridled state. If liberties were at stake, they were subsumed under arguments about which level of government was authorized to legislate on the specific subject matter at issue. In this way, Canadian constitutionalism resembled the “well-regulated society” of the antebellum United States: in the pursuit of the common good, public power was authorized to regulate liberty and private property to the fullest extent possible.

Ever since Charles Beard published his seminal work, An Economic Interpretation of the Constitution of the United States, in 1913, a vigorous debate has ensued among historians over the purpose and design of the Constitutional Convention. Was it, as Beard claimed, a Thermidorean counterrevolution, a reaction to the leveling propensities unleashed by the Revolution, or was it a conclave of patriots dedicated to the preservation of the Union and intent on strengthening the federal government so as to overcome the centrifugal forces tearing the confederation apart? For about forty years after its appearance, Beard's interpretation reigned supreme. It became the accepted wisdom that the Founders had acted out of selfish class interests in fashioning a constitution that would serve to protect the forms of property with which they were particularly associated. Subsequently, however, during the 1950s, Beard's analysis was subjected to more exacting scrutiny and found wanting. Vigorous challenges against his methodology and conclusions were raised by such writers as Douglass Adair, Cecelia M. Kenyon, Robert E. Brown, and Forrest McDonald. In the wake of their analyses very little of Beard's thesis was left intact.

I am grateful to the editor of Law and History Review for the opportunity to respond to Professor Shlomo Slonim's article criticizing my interpretation of the formation of the Constitution. I know Professor Slonim personally from a visit I made over a decade ago to Hebrew University where he was a very gracious host. I know too that he is an earnest and meticulous scholar of the United States Constitution who has spent a great deal of energy refuting Charles Beard. So in this brief response I wish to treat his criticism with respect while at the same time I hope to show where I believe he is wrong or has misunderstood and misinterpreted me.

Gordon Wood mentions that in 1987, as part of the Hebrew University's program of events marking the bicentennial of the U.S. Constitution, he delivered the annual Samuel Paley Lectures in American Civilization at the University in Jerusalem. If I, as chairman of the Department of American Studies was, as he says, a gracious host, he was no less a gracious guest and, moreover, a fascinating lecturer. A synopsis of his remarks is included in the volume that I edited, The Constitutional Bases of Political and Social Change in the United States, comprising lectures delivered at a bicentennial conference later that year and attended by prominent American and Israeli constitutional scholars, including Ruth Bader Ginsburg, now Justice of the U.S. Supreme Court, and Aharon Barak, now President of the Israeli Supreme Court.

King James I stated the official position of the English governing elite on gun ownership succinctly. When it was suggested that more of England's subjects should enjoy the right to hunt and own firearms, James responded that “it is not fit that clowns should have these sports.”

Discussion of early American gun laws begins with consideration of the English legal heritage. In the last few years, adherents of the self-described “standard model” of the meaning of the Second Amendment have constructed a paradigm of an uninterrupted tradition of legally sanctioned individual gun ownership in America. Such a construction starts with the idea that the British brought an acceptance of the universal ownership of firearms with them to the Americas. That cultural norm gave form to the meaning of the Second Amendment, which institutionalized an individual right to bear arms for purposes of personal and communal defense and as a security against a tyrannical government. This history matters greatly to these scholars in establishing an original intent in the Second Amendment to protect an individual's right to own guns.