The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19 Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract:
Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.
Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about constitutional language and history.
Part II investigates Kozuskanich’s analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the Quaker’s protests against being forced to “bear arms” in the militia demonstrate that “bear arms” is exclusively a military term; therefore the “right to keep and bear arms” is only about owning and carrying militia weapons.
But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich’s citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists’ arms.
Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.
Nick B says:
It appears some people need to look up the definition of “militia” in the US Code. Virginia code is similar. They so desperately try to pretend only the “militia” can own guns, but don’t really think about the implications of it.
I’ve wondered what would happen if someone showed up in court with a notarized document signed by the VA AG, that said person is a member in good standing of the VA militia, and a refusal from the ATF for the creation/transfer of a machine gun (m16 would be perfect).
December 1, 2009, 4:38 pmNick
luci says:
Is “Nathan Kozuskanich” a nom de plume for Michael Bellesiles?
December 1, 2009, 4:58 pmLarryA says:
Depends on whether he’s willing to share his data.
December 1, 2009, 5:08 pmJ. Aldridge says:
I prefer Paul Madison’s explanation: A right to be free of a standing army. That to me is the true spirit and meaning of the words.
Remember when framer James Wilson’s (of Penn.) home was surrounded by a mob of 200 and they were shooting at him, killing one inside? It was the organization of the militia that came out and protected him and his home. He also used ammo from the local public armory while holding the mob off with 15 others until the militia was called out.
December 1, 2009, 5:11 pmPersonFromPorlock says:
Then there’s this, one of a number of Amendments proposed by dissenting members of the Pennsylvania delegation to the Constitutional Convention to make the US Constitution acceptable to them:
Which rather neatly checkmates Dr. Kozuskanich.
Incidentally, if you crunch this hard enough it turns into the Second Amendment.
December 1, 2009, 5:15 pmJ. Aldridge says:
Bet this was to cover the complaint of the English game laws which were used as a pretense to disarm the militia.
December 1, 2009, 5:28 pmJ. Aldridge says:
Governor John Andrew Shulze of Pennsylvania 1829 annual message: “The right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution.” This right says he, imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill…”
December 1, 2009, 5:29 pmEdward Lunny says:
” Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars. “…this has become a common feature among those whom seek to disparage and infringe on our 2nd amendment rights. Yet another instance of the “it’s not a bug, it’s a feature” meme.
December 1, 2009, 6:17 pmSuperSkeptic says:
Mr. Kopel, I appreciated the article very much – especially the anecdotes of Franklin in Bethlehem & Penn and his sword. But, while I realize that you are intentionally being very, very harsh on Mr. Kozuskanich because of his unwitting or dishonest or lazy scholarship, I can’t help but get the sense that the severity of this detracts from the paper (in particular towards the very end). It marks a strikingly different tone than the begining, FWIW. Thanks for it.
December 1, 2009, 6:52 pmJames N. Gibson says:
Statute 1, Chap. XXI An act authorizing the President of the United States to accept and organize certain Volunteer Military Corps. Approved Feb 6, 1812.
Sec. 7 And be it further enacted, That upon the discharge of any non-commissioned officer or soldier, who shall have been accepted under the provisions of this act, and shall have been in actual service for a period of no less than one month, and shall have obtained from the commanding officer of his company, battalion, or regiment, a certificate that he had faithfully performed his duty while in service, such non-commissioned officer or soldier, if attached to the artillery, or infantry, shall be presented with a musket, bayonet, and other personal equipments; or iff attached to the cavalry, with sabre and pistols furnished him by the United States, as a public testimonial of the promptitude and zeal with which he shall have volunteered in support of the rights and honour of the country.
If the argument is they only have a right to bear arms when serving in the militia, why are they giving men muskets and or pistols when they leave the service??
If memory serves this Mr. Kozuskanich is an associate of Saul Cornell and wrote a paper which in draft form was submitted as a peer review, scholarly, document for the Heller case.
December 1, 2009, 10:04 pmwolfefan says:
I’m quite surprised at the claim that Friends of that day would have no scruples against carrying arms for self-defense. Although it’s not my denomination, my memory of Friends theology is that they teach Biblical non-resistance. I’ve looked briefly at the Kopel/Cramer article but not at the articles they critique so I’ll withold final judgment, but the idea that Friends back then regularly bore arms (except for hunting) strikes me as ludicrous.
December 1, 2009, 10:38 pmClayton E. Cramer says:
Excep that James Wilson specifically rejected your view, asserting it was an individual right to be armed for self-defense.
December 1, 2009, 11:36 pmClayton E. Cramer says:
Except that the English game laws weren’t used to disarm the militia (which was a government controlled organization), but ordinary peasants who might easily become “rabble.” Why would the English government seek to disarm its primary tool against uppity peasants? Remember that by the time of Elizabeth I, the general militia had been converted into a select militia consisting of gentlemen and other trustworthy members of the upper orders.
December 1, 2009, 11:39 pmClayton E. Cramer says:
Unfortunately, this problem that seems to have originated with Michael Bellesiles–the severe reading disability that managed to remain hidden all the way through school up to a doctoral dissertation–seems to be infectious. The only cure seems to be calling attention to the need for improved assistance in learning to read one’s sources.
December 1, 2009, 11:41 pmClayton E. Cramer says:
I’m glad that you put “scholarly” in bold. But that’s only because there wasn’t a font family called Clown.
December 1, 2009, 11:42 pmClayton E. Cramer says:
I don’t find impossible the idea that some Friends might have drawn a distinction between self-defense and military service. Indeed, there were some Friends at the time of the Revolution who seem to have even reconciled themselves to military service (and were read out of Meeting for that reason). But the sources Kozuskanich cites for his claim about that distinction simply do not provide any basis for it, unless one uses the special Michael Bellesiles reading glasses.
December 1, 2009, 11:44 pmClayton E. Cramer says:
Can you provide either a link to the entire quote, or the entire quote and a source?
December 1, 2009, 11:47 pmJim Lindgren says:
Some errors die hard.
But it’s ironic that he can criticize other historians’ competence while displaying his own.
You guys might look at Roth’s piece in Reviews in Am History:
http://muse.jhu.edu/login?uri=/journals/reviews_in_american_history/v035/35.2roth.pdf
He reviews the level of Bellesiles’ error.
I discuss Roth here:
http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190098384
Congratulations!
Jim Lindgren
December 1, 2009, 11:57 pmJ. Aldridge says:
James II moved to disarm the all Irish Militia of Protestants because of the “rumor” they were planning a armed rebellion. It mostly accepted the game laws serving the same purpose in keeping arms out of the hands of those who would form a armed militia.
December 1, 2009, 11:58 pmClayton E. Cramer says:
I found the full quote. You left a few words out that are somewhat important.
He is certainly connecting the idea of individual self-defense and collective defense together in a way that would have been quite logical to the Framers of the Second Amendment, and which in no way repudiates the notion of self-defense. Note that “in defence of themselves and the States” includes both collective and individual self-defense. His use of “seems to me” is a rather less certain assertion of that right than James Wilson’s–and farther removed from the writing of the 1790 Pennsylvania Constitution.
December 1, 2009, 11:58 pmJ. Aldridge says:
December 1, 2009, 11:59 pmJ. Aldridge says:
Not important at all, just a figure of speech.
December 2, 2009, 12:03 amClayton E. Cramer says:
How is this possible, since the English government throughout the 18th and 19th centuries relied upon the militia to deal with mobs, such as at the “Peterloo” massacre of 1819, and to provide military service throughout Britain?
December 2, 2009, 12:04 amClayton E. Cramer says:
Odd how figures of speech often convey meaning.
December 2, 2009, 12:05 amClayton E. Cramer says:
You might want to give the full quote, which shows that this is in fact one point of view, not universally held:
December 2, 2009, 12:09 amJ. Aldridge says:
Why was a provision in law made for the Protestants? It was to “enable Protestants to withstand and defend themselves against any Papists whatsoever that should come with commission and bear arms in any military employment, and to dispense with those laws that at present made it rebellion so to do.”
So, looks like it was desirable for Protestants to defend themselves militarily against the papist militias which were allowed to be armed.
December 2, 2009, 12:11 amClayton E. Cramer says:
And surprise, surprise, the Parliament that wrote the English Bill of Rights, including a guarantee that Protestant subjects had a right to arms, was repudiating the actions of Charles II and James II. This disarming of Irish Protestants, even of weapons of self-defense, was regarded as a barbarous act.
December 2, 2009, 12:13 amClayton E. Cramer says:
So first you argue that the game laws were to disarm the militia, now you admit the militia were armed, and the English Bill of Rights was protecting the rights of ordinary Protestants to be armed in self-defense. How many times are you going to change your story?
December 2, 2009, 12:14 amJ. Aldridge says:
I read it but I don’t think it means what you think it might. The convention seems to treat the right to bear arms under the PENN Constitution as a duty of all citizens to defend themselves as a public right and not as private one, which needs no constitutional right in the first place (except maybe to neo-cons).
December 2, 2009, 12:18 amJ. Aldridge says:
Haven’t changed it at all. The game laws argument isn’t mine, but early commentators. I just happen to find the conclusion plausible.
December 2, 2009, 12:22 amClayton E. Cramer says:
Which particular section of the debate leads you to that conclusion? The discussion of militia authority starting on page 113 discusses militia authority with respect to the militia clause of the 1776 Penn. Const.–but not with reference to the right to bear arms provision. When it does discuss the right to bear arms at the top of page 114, the discussion is first with reference to the Second Amendment, and then by middle of the page, it discusses how the state constitutional RKBA guarantee exceeds that–and that it protects “a right which the Constitution cannot touch” the right of a man to self-defence. The next discussion of a constitutional provision appears to be again discussing the militia clause of the Penn. Const., not the bear arms clause.
December 2, 2009, 12:25 amClayton E. Cramer says:
So which is it? That game laws were passed to disarm the peasants is certainly true. But not to disarm the militia. The English game laws never disarmed the militia, which was a pretty limited institution by then.
You seem to be more interested in casting doubt than in articulating any clear position.
December 2, 2009, 12:26 amJ. Aldridge says:
Instead of you wasting time obfuscating the entire debate, why not just take Wilson’s explanation of the Penn RKBA: Renewal of the Saxon regulations.
December 2, 2009, 12:32 amJames N. Gibson says:
Personally, I find the present discussion hard to follow. Are we stating that people didn’t own guns as Bellisiles stated or that people did own guns but the second amendment only applies to military service. Or are we stating that people owned guns but by default had a duty to defend the state.
All I know is that from several statutes, and debates for them, in the period leading up to the war of 1812 men were required by law to own a firearm that met requirements for military service at that time. They also owned other arms which had more regular usage (AKA hunting rifles). In one Federal statute (passed in Jan 1815) men who volunteered for service and brought their own firearm would be paid a specific sum for wear and tear on the firearm when in service. In the same statute a minimum caliber for rifles was listed that would be accepted for military service.
I have debates over giving arms to men who volunteer for service, the issue being why it was right giving arms to men who choose not to purchase their own weapon as the law required and other men had dutifully done.
I also have references to attempts to create a special militia core that had regularly failed in congress up to the year 1800. And I have the governor of Kentucky calling on his volunteers in 1812 to bring their personal rifles, just leave at home the ones too small in caliber for war.
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December 2, 2009, 3:48 amPersonFromPorlock says:
But then it goes on to say:
That is, felons or madmen. So non-felons and non-madmen are covered regardless of their militia status.
December 2, 2009, 7:46 ammikeyes says:
Clayton,
Google “clown font” and you will find an entire family of fonts. Evil Clown is my favorite.
December 2, 2009, 8:56 amAultimer says:
So the pedagogical reason for the snarky/scold-y tone is that the other guy did it first? No great surprise that 2A individual rights proponents are perceived as childish by those of us in the 2A-sympathetic middle.
December 2, 2009, 11:49 amRight to Arms in Pennsylvania History | Snowflakes in Hell says:
[...] Kopel talks about a law review article that will be appearing in the Widener Law Journal next year, coauthored with Clayton Cramer, on the history of Pennsylvania’s right to bear arms [...]
December 2, 2009, 12:01 pmClayton E. Cramer says:
For the purpose of self-defense–which you seem to be denying.
December 2, 2009, 9:57 pmClayton E. Cramer says:
The scoldy tone is because Kozuskanich didn’t seem to learn from what Bellesiles did–and lost badly for doing it.
[DK: Our tone may have come across harsher than we intended. We'll take that into consideration in future drafts.]
December 2, 2009, 9:59 pmJ. Aldridge says:
Public self-defense since there was no full time military establishment in the colonies.
December 3, 2009, 2:11 amClayton E. Cramer says:
Why do you keep denying the right to individual self-defense, something that is well documented as an intent by the author of the 1790 Penn. Const.?
December 3, 2009, 12:22 pmClayton E. Cramer says:
My impression is that J. Aldridge is attempting to defend Kozuskanich’s claim–that the right to bear arms in the Penn. Const. was only for the purpose of collective defense, and not for individual self-defense.
December 3, 2009, 12:23 pmdew says:
…and private self defense since there was little to no full time police establishment in any of the colonies.
December 3, 2009, 12:23 pmClayton E. Cramer says:
At most, a few cities had a night watch, much like the militia, primarily to deal with fires and the possibility of criminal behavior. But professional full-time police don’t exist until the 1830s.
December 3, 2009, 9:41 pmDavid E. Young says:
An internal contradiction is the foundation for everything advanced in Kozuskanich’s Rutgers article. He refers to numerous instances, both widespread and local, of voluntary defensive associations during Pennsylvania’s colonial history. Since there was never a militia law in colonial Pennsylvania requiring that men possess arms for militia duties or engage in organized defense, such associating for defense, which occurred on numerous occasions, was entirely dependent on the self-motivated actions of the individuals who took up their arms, self-organized, and trained themselves to defend their localities.
All of these defensive activities, of necessity, depended upon the men possessing their own arms and knowing how to use them. An excellent example of this understanding is found in Benjamin Franklin’s statement relating to the Association of 1747. Franklin indicated that there were 60,000 men in the province [a large majority of the able-bodied male population] who could help defend it because they were hardy and bold hunters and marksmen. He also stated that most everyone had a firearm of some kind or another already in their hands. [see The Founders View of the Right to Bear Arms, pp.15-25 for more information and documentation]
Contrary to the evidence included in his own article about extensive self-organized groups of armed individuals, Kozuskanich presents clipped and out-of-context quotes indicating that most Pennsylvanians did not possess arms. At least one of those quotes does not even relate to such associations, but instead to paid provincial troops. Widespread defensive associations would not have been possible if arms were as rare in colonial Pennsylvania as Kozuskanich suggests. Nor could most everyone in the colony have a firearm on hand and large numbers of men be hunters and marksmen. Kozuskanich is simply another professional historian ignoring inconvenient sources and rewriting history to fit his personal beliefs. This is exactly what the professional historians did in their Heller amicus brief. They cited Kozuskanich’s article to explain away the intent of “the people have a right to bear arms” bill of rights language that originated in Pennsylvania.
December 4, 2009, 9:22 amjheath says:
It’s history-department law. A real lawyer would check militia caselaw to see if the “militia right” theory has any connection with legal reality. It doesn’t.
December 4, 2009, 4:54 pmJames Lindsay says:
David, Any comments on the CSU Board of Governor’s vote today to ban concealed carry on CSU campuses? http://www.denverpost.com/ci_13927157
December 4, 2009, 6:22 pmMatthew Carberry says:
Not David but here’s my take from a similar situation.
It is currently lawful to carry on the University of Alaska’s campuses under state law. However it is administratively barred under penalty (of up to) expulsion by the Board of Regents. Their authority to do so is solely derived from a state Statute which authorizes the Board to “adopt reasonable rules, orders, and plans with reasonable penalties for the good government of the university and for the regulation of the Board of Regents”.
I’d be interested to see what law undergirds the Regent’s authority in Colorado.
In any event, if McDonald goes through, and, per Heller and the recent ruling in the 7th, the rational basis test is off the table as a standard of review, the regulation by the Board will (should anyway) fail if challenged in court simply based on the fact that carry has no documentable negative effect on safety. There’s simply not even a rational (much less higher level scrutiny) basis for a ban when the facts are examined.
Although, such bans everywhere should fall on simple logic as carry is lawful by those same (eligible) students off campus with no problems (they somehow become less responsible by crossing a property line?) and on those campuses in the Lower 48 where it is allowed the evidence shows no issues.
There’s simply no argument against campus carry that has facts to back it up. The failure of institutions of higher learning to actually examine the research and instead rely on baseless, often fear-driven, opinion on the subject is appalling.
December 5, 2009, 2:36 amJim N. says:
I live in Wisconsin which has a gun free school zone statute (S. 948.605) that makes it a felony to possess a firearm within 1,000 feet (about 3 city blocks) of any school property unless you are on private property, or if the arm in encased. The problem is concealed carry is illegal in Wisconsin so if you encase your firearm while in a school zone you would be violating the concealed carry statute.
The net affect of this statute is that in an urban area that has a high population density with a high concentration of schools, you are not allowed to carry a firearm in vast areas of the city. (The city of Milwaukee Police Department has actually distributed maps to officers of the school zones so that they may enforce this statute against those openly carrying.)
Also, among other obvious restrictions, if you live in an apartment building within a school zone and have to park on the street, you cannot legally transport your weapon from your home to your vehicle, or vice versa. Without a legal means to get an arm from or to your home how are you supposed to be able to keep one in your home for self defense?
Do the esteemed readers think this 1,000 foot school zone law could be successfully challenged as arbitrary? What makes it safe to have a gun 1,001 feet from a school, but not 1,000? Why not 500? Why not just on the school grounds itself?
After reading the recent decision in the 7th, would it be reasonable to assume the state, if challenged, would need to show “that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.” such as studies that show school shootings dramatically dropped after enacting the 1,000 foot exclusion?
IANAL, but am waiting to see how the Chicago case plays out and am seriously considering taking action Pro Se if the law is not challenged by any pro-2nd amendment organizations. Thoughts?
December 5, 2009, 1:05 pmMatthew Carberry says:
I think the Federal 1,000′ limit is ripe for legislative repeal or challenge which would kick most similar state laws as well.
Most states don’t require a permit or background check to open carry yet under Federal law doing so within 1,000′ of a school is unlawful, Alaska and Vermont and some shall-issue states don’t require the check for concealed carry either.
Congress needs to act on that, it would be easy enough to change the GFSZA to mirror the Park Carry bill and make carry anywhere, including in/near schools, dependent on state law.
Regardless of Federal interference and funding, schools as physical structures are a local issue and state/local rules should apply.
December 5, 2009, 7:10 pmJim N. says:
I would agree that state/local rules should apply, but the recent 7th circuit decision requires the government establish that the statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. Under strict scrutiny (which would of course apply because I would assert my right to possess a gun for the sole purpose of self-defense),how could a 1,000 foot ban be found constitutional?
December 6, 2009, 12:31 amMatthew Carberry says:
Short answer? Given all available (peer reviewed/reputable) research?
It wouldn’t.
You and I are in total agreement. If the actual science was brought into play on any given gun restriction that restriction would fall.
About all that actually would be Constitutional/rational would be restrictions based on violent crime felony convictions or mental health adjudications, as long as review was available to those persons prior to and after serving their actual initial sentence.
Nothing else is supported by the research as effective in crime control in any way.
To include any sort of carry restrictions (based on the loosest of state’s requirements versus the tightest) and any sort of training requirements (the same).
Gun control laws do not control for either safety or crime. Unlike AGW, that science is indeed settled.
December 6, 2009, 3:52 amEdge of Reason says:
People = Groups of Individuals = Militia
You’ll note from the comment below that the Anti-Federalists use of English language of the 1790′s differentiated between the People as a group and individuals – in their state’s rights version of the 2nd amendment which was rejected:
“The people have a right to bear arms for the defence 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 for real danger of public injury from individuals.”
“….disarming the People or any of them …” the militia or any individual is the clear meaning here. The language of the authors of the Bill of Rights themselves refutes your argument that the 2nd amendment is about individual rights.
The right of the people to own slaves was also not infringed …
The assumption guns-rights advocates make that the authors of the Bill of Rights had good judgement may be unfounded. They were, after all, slave owners, saw women as inferior and undeserving of the same rights as men, and would probably have been sympathetic to Neo-Nazis and the KKK.
Though there were wise dissenters among the authors including John Adams who eleoquently said that “uncontrolled individual discretion to own and use guns” has the potential to ” … demolish every institution, and lay the law prostrate, so that liberty can be enjoyed by no man— it is a dissolution of the government.”
If John Admas walked the streets of Detroit and many other big US cities after dark, he would find his prediction had come true – with too many guns, many of them concealable, denying good men and women of the enjoyment of liberty without security systems, guns under the bed, and heavily armed police roaming the streets and the government watching through CCTV cameras for the out-of-control militia of the NRA’s USA.
In fact, the Anti-Federalists of this time (State’s rights advocates) thought the 2nd Amendment was too restrictive for individual use. Their explicit version was rejected because it called out the individual right and read:
“The people have a right to bear arms for the defence 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 for real danger of public injury from individuals.”
See John Kenneth Rowland’s reseacrh of what the Second Amendment meant to Americans in the early 1790s at http://www.potowmack.org/emerappa.html
May 6, 2010, 8:09 am