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.

The contemporary American will to punish is simultaneously in disarray and experiencing dramatic expansion. Crime, despite the ambiguities of its statistical measurement, remains a central focus of contemporary politics. Notwithstanding a “crisis of penological modernism” that has undercut traditional explanations and justifications for the penal apparatus, prison construction continues at an accelerated pace while proposals for increasing the severity of juvenile punishments seem omnipresent. Criminological discussions continue to stress the technicalities of the problem of punishment while larger social issues remain marginalized. In this situation, the evident problems of the criminal justice system are transmuted into programs for increasing its reach and power.

History is a strange medium: it carries the most contemporary debates onto the most distant terrain. Both Bruce Mann and David Konig focus on the notions of change and context that undergird the forum essays. Those issues, more than any moment in early New York, link the articles and the comments. By exploring the way we defined “constitutions,” “constitutionalism,” and “constitutional history,” the commentators open up a large and current question. They invite a discussion about approaches to constitutional change.

Kenneth Ledford's and Michael Meranze's insightful comments raise important questions about the nature of legal history in general, and of the history of punishment in particular. According to Ledford and Meranze, modern legal history is social history, to be distinguished from “old-style intellectual history.” A product of the latter “historical method no longer in favor,” “The Right to Be Punished” draws Ledford's and Meranze's criticism for its insufficient “root[s]… in the soil of social history” and for its inadequate “account of the … social basis of the modern will to punish” and “the social embeddedness of punishment.”

Bruce Mann's irreverent schoolmate would have made a good historian. Unlike the hapless docent, the student (whatever his intent) grasped that a word's various meanings, now divided, might once have been united. The word constitution, for example, was born in obfuscation—and this ambiguity enabled it to become a powerful analytical tool in the early modern period. In fact, the political meaning of constitution derived from the word's physiological connotation, which is why the latter appears first in Professor Mann's dictionary.

I first want to thank all of the commentators for their insights on, and criticisms of, my article, as well as thank the editors of Law and History Review for the opportunity to respond. Rather than addressing each comment individually, I will structure my response along conceptual issues raised by all three, although the three comments each have different emphases. The two conceptual categories I use are “technical criticisms” and “historiographical criticisms.” Under the category of technical, I include criticisms of my characterization of neoclassical economics theory and my analysis of particular texts. The historiographical category encompasses substantive historical issues, including which authors should be included in my accounting of law and neo-classical economics as it relates to the reconfiguration of tort law theory. However, it also touches upon broader methodological issues of how one goes about doing intellectual history(ies).