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New article by Kopel and Cramer
The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, forthcoming in Widener Law Journal.
Gist of it is a critique of Nathan Kozuskanich's claims that the right to arms guarantee in the 1776 PA Constitution -- "the people have a right to bear arms for the defence of themselves and the state" --actually has a secret meaning relating to Quaker objections to military service.
Wonder if I could coin a term -- "constitutional conspiracy theory" -- to describe all these collective-rights theories that take multiple references which are most naturally read to describe an individual right, and by referring to one or another historical event (sometimes isolated ones 20 years before), argue that that incident gives a meaning to the reference entirely at odds with its words, its history, and the speaker's background.
I don't recall seeing claims like this in any other constitutional context. Leonard Levy and Ed Meese debated the outer edges of the Establishment Clause -- are government policies that favor all religions an establishment or not? -- without either claiming that due to some event in 1760, "shall make no law" had a secret meaning (which no one bothered to record or reference) amounting "may make some laws," or that, say, "establishment of religion" was intended, sub silentio, to forbid only chartering of new churches, not handing public money to a specific church.
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Damn. The first DOES NOT say "no law respecting the establishment of religion", the phrase the Committee on Style would have used IF the 1st was merely about establishing a religion/church. It says "no law respecting an ESTABLISHMENT", as in "a thing established, as a business, military organization, household, etc."
No taxation. No tax exemption. No law about an establishment of religion. Just like all the BoR, the first is much broader than many would like it to be. But the Courts ALWAYS do their best to expand powers while narrowly construing the BoR.
Kozuskanich's Penn-militia constitutional theory is readily demolished by reference to Penn. militia law -- unless you're so fixated on on origialism and historical minutiae that you never check Penn. militia law.
The Pennsylvania supreme court invalidated and enjoined Pres. Lincoln's military draft in 1863 in part because conscription "interfered" with the state militia and the participation of the citizens therein. That decision stood for 9 weeks before the same court reversed itself. The Penn. case was the only meaningful precedent in 1918 when the U.S. Supreme Court disposed of the conscription issue by upholding the draft and specifically saying that Congress can abolish the militia by drafting all the members. The state case was Kneedler v. Lane, and the SCOTUS case was Selective Draft Law Cases.
In addition to the errors mentioned by Dave Kopel and Clayton Cramer, there is a major internal contradiction that underlies and undermines everything advanced in Kozuskanich's Rutgers article. He mentions numerous instances, both widespread and local, of voluntary defensive associations during Pennsylvania's colonial history. Since there were no militia laws 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, 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 related information on colonial Pennsylvania]
These numerous self-organized defensive associations consisting of armed individuals are mentioned throughout the Kozuskanich article. Yet, contrary to the evidence he has spread through his own article about self-organized groups of armed individuals, he presents clipped and out-of-context quotes indicating that most Pennsylvanians did not possess arms. Franklin's above statements would have to be preposterous exagerations if Kozuskanich is correct, and numerous and widespread defensive associations would not have been possible if arms were as rare in colonial Pennsylvania as he suggests. Kozuskanich is simply rewriting history to fit his beliefs. This is exactly what the professional historians did in their Heller amicus brief, which cites Kozuskanich. For anyone who suggests that Kopel and Cramer are too hard on Kozuskanich for citing Bellesiles, I think he well deserves the critical attention.
No doubt Hollywood is hard at work on a screenplay for a film. Perhaps starring Nicholas Cage?