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Nathan Kozuskanich's new article taken under fire
In Heller, both DC and some of its amici invoked an upcoming law review by Nathan Kozuskanich, who works with Saul Cornell. It's just been put online, i.e., too late for any pro-Heller amici to insert references to it. The article begins with praise for Saul Cornell's new book, and describes the DC CIrcuit ruling as relying on the "flawed and distorted version of history that Gura and his partisan amicus briefs offered." Chuckle--no doubt where this article is going!
The main theme is to try to demonstate that Pennsylvania's 1776 Declaration, which guaranteed the right of citizens to bear arms for defense of themselves and the state, meant something other than an individual right. The gist of the demonstration is that at the time lots of privotal Pennsylvanians were concerned about creating a mandatory militia. OK, so what? The 1776 Constitution had references to that. There's no showing that the fact that many wanted a mandatory militia caused the right to arms clause to be inserted in the Declaration.
I won't go into detail because the article has been critiqued in depth by Clayton Cramer and by Dave Kopel. Clayton points out that the article actually cites Bellesiles!
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[...]
"While the Assembly and Governor argued, a petition from York County arrived claiming that there were many in that county willing to enlist in militia and "bear Arms for the Defence of the Frontiers . . . if they had any Assurance of Arms, Ammunition, and reasonable Pay."37 The petitioners claimed that three quarters of them had no guns or ammunition and lacked any cohesive military leadership.38"
[...]
A couple of points I'm confused on:
1. Why was Bellesiles even mentioned re #38 since it comes from the same source as #37. It seems a proper citation would have been the way "37" was cited with a call to the proper page number (See id. at [page]).
2. The sentence, as written, does not say that only one quarter of the population of that county had arms, ammunition, or cohesive military leadership. It makes the claim that only one quarter of those willing to serve had those assets. (So again, why would Bellesiles even be mentioned in support or dispute of that sentence since he wasn't the source of the claim?)
While Mr. Kozuskanich isn't using Bellesiles to support a claim of few guns in Colonial times, Bellesiles' book has nothing to do with the statement that reference #38 supposedly supports.
After spuriously introducing Bellesiles, Mr. Kozuskanich makes no reference to the fact that Bellesiles was demonstrated to be a fraud--all he does is reference 'studies of gun numbers that contradict Bellesiles'.
Sorry if this seems rude, but the reference to Bellesiles in the article and the above dissent don't pass the smell test. Something isn't quite right, either poor grammar, poor cite ability, or something else.
Unlike Mr. Cramer, I'm not going to make a claim of dishonesty in this particular instance, I think it's a case of incompetence and poor phrasing--but that's just my opinion.
Dear Nathan:
Saul Cornell was your graduate advisor at OSU. Of course, he is director of the Second Amendment Research Center, where you are currently the digital archivist/web manager.
Among other things, listed here http://www.secondamendmentcenter.org/about_us.asp the SARC's goal is "to aid in the creation of solutions to the problem of gun violence that are both effective and constitutional..."
Of course, we are aware that the OSU SARC received a grant from Chicago's Joyce foundation - a foundation which, during the years 2003-2007, has spent $14,412,000 funding activities, research, and public programs, and organizations (e.g., Violence Policy Center, Legal Community Against Violence, Illinois Council Against Handgun Violence, Handgun-Free America). All but one of those are deceptively named, because their utmost focus is forwarding and passing gun prohibition legislation - their ultimate goal is the criminalization of private firearm ownership in the United States.
I am a scientist, too (a biologist), and one of the things science strives to do is produce research that is both objective and transparent. The very existence of the scientific endeavor depends on these qualities, and we protect them fiercely. These qualities are absolutely necessary, particularly when research results informs public policy. The fact that Cornell, the SARC, and you are all tied to Joyce Foundation - and they directly tied to gun control advocacy - casts serious and lasting doubt on the objectivity of your work.
Let me spell it out clearly.
(1) The Joyce Foundation and the organizations they support seek national criminalization of firearm ownership (under the guise of reducing violence). However, their efforts are thawrted by something called the Second Amendment to the United States Constitution, which protects, from government infringement, the right of the people to keep and bear arms.
(2) The SARC seeks solutions to the problem of gun violence (as is also claimed by Joyce) that are "effective and constitutional." Constitutional - there is that Second Amendment again.
(3) So it doesn't take a PhD in History, let alone in one of the hard sciences, to connect the dots. The Second Amendment Research Center conducts applied research focused on accrediting and forwarding the biased and incorrect view that the right protected by the Second Amendment is strictly limited to that select group of people who are actively engaged in an organized militia. By doing so, the 2A is rendered powerless to thwart widespread gun prohibitions by federal, state, and local governments.
(4) In so doing and eventally, gun control agendas can be forwarded and passed, and the obstacle which is (was) the Second Amendment is weakened enough to afford no constitutional barrier to strict gun prohibition.
Does it not nag at you, Nathan, to have tied your professional wagon to this dark horse of political advocacy funding? I predict that the horse you've tied to will have serious professional consequences for you - at least among legitimate scientific research circles.
Best regards.
I recommend that readers of this blog go ahead and take a look at the comments after the blurb on Volokh.com.
Mr.Kozuskanich makes the same comment there as he did here, but his arguments are deftly dismantled - not just by Clayton Cramer, who also makes several comments - but by the regular readers over there.
Very entertaining stuff.
Here is another In Press article (CITE ONLY WITH PERMISSION) by Kozuskanich.
University of Pennsylvania Journal of Constitutional Law.
ORIGINALISM, HISTORY, AND THE SECOND AMENDMENT:
WHAT DID BEARING ARMS REALLY MEAN TO THE FOUNDERS?
http://www.law.upenn.edu/journals/conlaw/articles/vol10num3/kozuskanich.pdf
Cramer's assertion that I cited Bellesiles "as a source for the claim that guns were pretty scarce" is dishonest. He makes it sounds like I actually cited and relied on Bellesile's faulty probate numbers. What I cited was a 1755 petition from York County before the PA Assembly which claimed that three quarters of the people in that county had no guns or ammunition. The footnote then points to "Arming America" and the controversy over counting guns. I made the point that my essay, including the quote from the York petition, is not trying to substantiate or dismiss his claims. The dismissing has already been done by those I cite further in the note.