DC v. Heller: Nathan Kozuskanich's selective reading of American History

In the Supreme Court's Second Amendment case District of Columbia v. Heller, DC and its amici frequently cited a then-forthcoming Rutgers L. Rev. article by Nipissing University assistant history professor Nathan Kozuskanich, a protege of Saul Cornell. DC's reply brief, filed last Wednesday, cites another unpublished Kozuskanich article, this one in the U. Penn. Journal of Constitutional Law.

A pair of new postings by Clayton Cramer analyze the J. Constl. L. article, and the Rutgers article. To call the articles "law office history" might be unfair to law offices.

Regarding the J. Const. L. article, Cramer explains how Kozuskanich's theory (that the right to arms in early Pennsylvania was only for collective defense of the state) depends on ignoring other evidence, and on strained, implausible readings of the evidence that Kozuskanich does present.

For example, Kozuskanich points to the prosecution of Dr. James Reynolds for "assault with intent to commit murder." Kozuskanich claims that the prosecution proves that Pennsylvania's constitutional right to arms did not apply to individual self-defense.

But as Cramer notes, Dr. Reynolds was never charged with a crime for his mere carrying of the pistol; he was charged with a crime because he pointed the pistol and threatened to shoot someone. The book American State Trials observes that Reynolds "contented himself with carrying a pistol. And in this he was justified by every law, human and divine." Certainly no-one at the trial contended otherwise; so Kozuskanich's claim that the prosecution for attempted homicide proves that there was no individual right to own and carry guns is implausible.

The prosecution's theory of the case was that Dr. Reynolds, who was in a public place, could have safely retreated from threatening mob, and that Blackstone's standards for self-defense require such retreat. The jury, however, acquitted Dr. Reynolds.

The Reynolds case is a good example of the beginning of the split between the more restrictive British standards of self-defense, and the new, more liberal American standards. That conflict on self-defense standards continues to the present day. But arguments about the boundaries of self-defense (such as whether there is a duty to retreat if possible) certainly do not disprove the existence of a constitutional right of individuals to have guns for personal self-defense.

Joseph Olson and Clayton Cramer, in an article in the Georgetown Journal of Law and Public Policy offer numerous examples of Founding Era usage of "bear arms" to mean carrying guns in a non-military setting. Tellingly, Kozuskanich simply ignores the Olson/Cramer evidence, for that evidence demolishes Kozuskanich's theory.

Cramer's critique of the Rutgers article observes that Kozuskanich actually cites Michael Bellesiles, who was forced to resign from Emory after the proof (brought forward by Clayton Cramer, James Lindgren, and others) that Bellesiles had falsified his data, including his data on the very point for which Kozuskanich cites him (the supposed scarcity of guns in early America).

Article XIII of the Pennsylvania Constitution of 1776 guaranteed "That the people have a right to bear arms for the defence of themselves and the state." The opening language, "That the people have a right", was identical to Articles X, XII, and XVI, which guaranteed the individual rights to freedom from unreasonable search, free speech/press, and petition/assembly.

Kozuskanich quotes extensively from the Pennsylvania Convention's debates on Article VIII of the Constitution--affirming that everyone is bound to serve in the militia, or pay "an equivalent thereto" (that is, a fee whereby conscientious objectors could be excused from serving personally). Kozuskanich claims that the Article VIII debates prove that there was no individual right to arms for self-defense. As Cramer notes, this is silly. The Article VIII debates were not, of course, about an individual right, which was the subject of a separate article; the Article VIII debates involved the scope of a duty.

Kozuskanich's approach to Pennsylvania is similar to the approach that his mentor, Prof. Cornell, uses for St. George Tucker (the leading constitutional scholar of the Early Republic): quote Tucker's words about congressional militia powers arising from Article I of the federal Constitution, and claim that those words prove that the Second Amendment does not involve arms for personal defense. (For more on this latter point, see Stephen Halbrook's article in the Tenn. J. L. & Pol.