pageok
pageok
pageok
Historical briefs in DC v. Heller:

The brief of Academics for the Second Amendment discusses the drafting and ratification of the Second Amendment. It argues that the history clearly points to an uncontroversial individual right to arms for private purposes, and argues that DC's theory of the Amendment's meaning is based on proposals which Madison and Congress rejected. My favorite part of the brief is its use of the phrase "a tub to the whale."

A brief from the Institute for Justice supplies the history of the Reconstruction Congresses, and of the 14th Amendment. It shows that (whatever implications one might draw about incorporation), the understanding of the Second Amendment at that time was that it was a personal right to arms for private purposes, particularly the purpose of defending the homes of freedmen from Klan attacks.

And a brief for the President of the Pennsylvania Senate provides the history of the right to arms in that state.

These briefs counter arguments raised by DC and by its amici historians. As both these briefs acknowledge, proving that the 1776 Pennsylvania Constitution right to arms was not a right to self-defense arms is essential to their cause. Strangely, they cite a forthcoming article in a Rutgers law review, written by a protege of Saul Cornell, which appears to have not been made available, in its pre-publication form, anywhere the public can review. Keeping that article out of sight of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny. I am unaware of any pre-publication article that has been cited by Heller and his amici which is not already available on SSRN or another public web site.

therut:
My how all these for Heller make many of those (Janet Reno and company as sone example) appear so small,petty and strange.
2.11.2008 8:50pm
Ben P (mail):
Surely we can find someone on the Rutgers law review that reads this blog......


Citing an unpublished unavailable article seems even less proper than citing an unpublished opinion, and even those exist on Westlaw or Lexis at least. I have a feeling any of my LRW professors or Law Review Advisors would have gotten mad at me or either.
2.11.2008 8:54pm
The Court's True Friend:
Does anyone think amici make a difference? Perhaps, when all is said and done, the Conspirators should discuss that issue.
2.11.2008 8:56pm
Sam Heldman:
"they cite a forthcoming article in a Rutgers law review, written by a protege of Saul Cornell, which appears to have not been made available, in its pre-publication form, anywhere the public can review. Keeping that article out of site of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny"

This passage makes a completely unwarranted leap, from "article not available to the public as far as I know" to "article not available to Heller and his amici" to "somebody has intentionally kept that article from Heller and his amici" to "somebody has kept it from Heller and his amici for reasons that I can mindread." Do you know, in fact, whether Heller and/or any of his amici were able to ask for and receive a copy of the article?
2.11.2008 9:20pm
Steven H (mail):
Rutgers may have a publication contract that prohibits pre-publication posting to SSRN, etc. Crazy, but common enough.
2.11.2008 9:21pm
Clayton E. Cramer (mail) (www):

Do you know, in fact, whether Heller and/or any of his amici were able to ask for and receive a copy of the article?
Yes, I asked Kozuskanich if I could see a copy of his paper several months back, when he was insisting that Pennsylvania had no militia before 1777 (in spite of official documents that repeatedly refer to the militia), and the "bear arms" in Art. XIII wasn't an individual right. He was unwilling to provide it.
2.11.2008 9:38pm
Kazinski:
Sam Heldman,

Do you know, in fact, whether Heller and/or any of his amici were able to ask for and receive a copy of the article?


If I didn't know better I would think that you were Kopel's sock puppet, tossing him a floater that he could hit out of the park. Koppel's is an Heller amici, here is his previous post with a link to his brief here.

So the answer is yes Koppel does indeed know in fact that the article is not readily available to the other amici.
2.11.2008 9:39pm
byomtov (mail):
Is there any way to get the court to expedite its decision, so we can be done with these posts?
2.11.2008 9:40pm
Nessuno:

Is there any way to get the court to expedite its decision, so we can be done with these posts?


Is it really that hard for you to scroll pasts you don't want to read? I do it every day. You should try it some time.
2.11.2008 9:45pm
Helen:
I thought that there was supposed to be a pro-respondent brief from the attorneys general of several states. Four or five state AG's wrote in support of DC.

Was the pro-Heller state AG brief not filed on time? Or am I misinformed?
2.11.2008 10:13pm
Point of Fact (mail):
Saul Cornell has pulled this kind of stunt before, like when he relied on ScribbleScrabble.
2.11.2008 10:20pm
great unknown (mail):
I cite "keeping that article out of site of ...", which of course should be "sight".
2.11.2008 10:41pm
Mike O'Shea (mail) (www):
Helen,

It was filed. Thirty-one States.

Says the judgment below should be affirmed, says there's no need to remand, suggests that outright bans like D.C.'s should receive strict scrutiny, and (p. 23 n.6) endorses incorporation of the Second Amendment against the States.

Here it is.
2.11.2008 10:44pm
Bruce:
Keeping that article out of site of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny.

It's a plot, I tell ya!
2.11.2008 10:53pm
federal farmer (www):
I found the various briefs supporting incorporation very compelling...

(says the man from Chicago)
2.11.2008 10:56pm
Clayton E. Cramer (mail) (www):

Saul Cornell has pulled this kind of stunt before, like when he relied on ScribbleScrabble.
I'm sorry that I clicked over to it. Cornell looks so much like me, about 15 years ago, that we could be cousins. I'm disgusted!
2.11.2008 11:10pm
Kazinski:
There certainly is some denial going on in the the historians brief supporting DC. Take this passage:

The sole noteworthy reference to a private right to
arms in 1776 appears in the draft Virginia constitution
that Thomas Jefferson prepared while marooned in
Philadelphia writing the Declaration of Iindependence.
His list of Rights Private and Public included:
"No freeman shall ever be debarred the use of arms
[within his own lands or tenements]." The bracketed
phrase did not appear in the first draft of this document,
and may indicate Jefferson's uncertainty about the
extent of the right.

Whatever doubts Jefferson had about the extent of the right, he at least believed it extended to "within [a freemans's] own lands or tenements". I'm sure if they thought it would help, the historians brief would make the argument that because DC is overwhelmingly black and the right to bear arms was limited to freemen that the right should not be extended to the district in any case.

The brief also selectively and misleadingly quotes the Pennsylvania constitution:

When the constitution writers of 1776 used the phrase "for the defence of themselves," they accordingly were referring
not a personal right of self-defense but to the community's capacity to protect itself against the threats raised either by Native Americans or the British army.

The full clause of the Pennsylvania 1776 constitution reads:

That the people have a right to bear arms for the defence of themselves and the state;

It is clear that the drafters were referring to both self defense and external threats. And what is the difference on the frontier between being threatened by a band of Indians or a gang of robbers? I would imagine that in both cases a citizen would be glad to have a gun at hand.
2.11.2008 11:18pm
ChrisIowa (mail):
Clayton

He probably even has a Corvette.
2.11.2008 11:21pm
Tony Tutins (mail):
First, historians should not engage in advocacy. Bellesiles showed the tendency to fudge the data is too great. Second, unlike lawyers, these historians feel no need to raise and address their opponents' arguments. The word "militia" in the absolute adjective sets them off on a tail-wagging-the-dog, mind-numbing discussion of the militia, while the word "right" in the operative clause does not interest them. There is no discussion of Locke or Hobbes or Grotius, the natural rights of man. The improbability that the framers would have sandwiched a state's power amendment between two amendments enumerating the rights of individuals causes them no concern. They don't even get the significance of the Webster quote they cite: Noah Webster opined that putting into the Constitution the right to keep and bear arms would be as useless and empty an exercise as putting in the right to eat meals at appropriate times, or the right to lie on one's left side or even one's back instead of mandating that only the right-side-recline was permissible. Webster in brief: Why bother enumerating a right that people take for granted? Once this is established, the anti-rights brief becomes a pro-rights brief: In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda.

Kazinski, you just don't get it: Themselves doesn't mean "themselves," it means "some aspect of community larger than the individual but smaller than a state." I'm afraid you'll have to go back to Communitarian school for re-education.

If I'm not mistaken, the issue of the Chicago-Kent Law journal so many of the authors published in contains papers from a Kent anti-gun-rights symposium funded by the Joyce Foundation.

Jack Rakove's dad Milton, was a very practical, insightful polisci professor. He wrote two books about the (senior) Daley machine: Don't Make No Waves, Don't Back No Losers, and We Don't Want Nobody Nobody Sent. I guess the apple can fall far from the tree.
2.12.2008 1:27am
Tony Tutins (mail):
I liked the IJ brief because it points out that the 14th amendment basically republished the individual rights view of the 2nd Amendment. I doubt that the Court will seize this opportunity to overturn The Slaughter-House Cases though, and reinstate the Privileges or Immunities clause. Next time, though.
2.12.2008 1:41am
Tony Tutins (mail):
Kozuskanich's PhD thesis "For the Security and Protection of the Community" [electronic resource] : the frontier and the makings of Pennsylvanian constitutionalism is available here.

I thought the discussion favored the individual rights interpretation, because Quakers did not want to fund any military force, private individuals needed to arm themselves for protection.
2.12.2008 2:03am
Kazinski:
Tony Tutins,

Themselves doesn't mean "themselves," it means "some aspect of community larger than the individual but smaller than a state." I'm afraid you'll have to go back to Communitarian school for re-education.

Ok how is this: It takes a village to use a gun.
2.12.2008 2:13am
Sam Heldman:
I would still be interested to know if Kopel (or others working on the Respondent or amici briefs) asked the author for a copy of the article, after seeing it cited in the Petitioners-side brief(s). If not, then the passage I quoted seems very unwarranted. If so - if the author actually gave the article in draft to one side but refused to give it to the other - I would agree that's not so cool on the author's part.

I understand Cramer's point that he asked for a draft several months ago, but that is not really the same thing - since it seems reasonable to think that it was not ready for publication several months ago, and also since it (presumably) hadn't yet been cited by anyone in litigation.
2.12.2008 6:57am
Nathan Kozuskanich:
I can assure everyone that Clayton Cramer did not ask me for a copy of my article, nor has Dave Kopel. I did send a copy to DC to see if they were interested in my argument.

In an email exchange in mid November 2007, Cramer asked me to "point to some examples of 'defense of themselves and the State'
from before 1777." I told him to read my article (then still in draft) when it came out. I am under no obligation to share my research with Mr. Cramer, no matter what opinion he holds of himself. I am also not obligated to do his research for him. If he wants to look at the use of "defense of themselves" before 1777, he should knuckle down and sort through the historical record.

As for the Pennsylvania militia, PA had no militia law before 1777, and thus before then did not have an official militia in which men were obligated to serve. This is historical fact, which Cramer himself acknowledged on his own blog. See this post.

As a previous poster has noted, if Mr. Kopel had done a bit of research, he could have obtained an electronic copy of my dissertation on which the article is based. His assumption that the article must be flawed is unfounded, and is insulting to me and Rutgers.

I am opposed to posting drafts on SSRN. It undermines the journal that will publish the final copy, and gives an author no assurance that his/her work will be properly cited or credited by others.

The Rutgers piece will be out very soon and then you can have at it.
2.12.2008 10:54am
Andy Freeman (mail):
> I am under no obligation to share my research with Mr. Cramer, no matter what opinion he holds of himself. I am also not obligated to do his research for him.

In the sciences, there is an obligation to share all data with folks who disagree with one's conclusions. Yes, even crackpots.

Then again, the sciences claim to be about discovering truth, not winning arguments.
2.12.2008 11:40am
PersonFromPorlock:
Cramer, Kozuskanich:

OK boys, one of you is seriously 'mistating the facts'. Trot out the e-mail exchange.
2.12.2008 11:53am
Kazinski:
Nathan Kozuskanich:

he could have obtained an electronic copy of my dissertation on which the article is based.

Does the amici historian's brief in support of DC cite your article or your disertation? If everything in your article is in your publicly available disertaion then they should have cited your disertation.

And contrary to your claim that "PA had no militia law before 1777", I'm sure you are aware of this:


On March 29, 1757, the Assembly passed Pennsylvania's
second militia act. See Act of March 29,
1757, V Statutes at Large at 609-35. It required every
Pennsylvania citizen who was "not conscientiously
scrupling the use of arms" to serve in the Pennsylvania
militia and be "sufficiently armed with one
good musket, fuzee or other firelock well fixed, a
cutlass, bayonet or tomahawk, a cartouch box, filled
with twelve or more cartridges of powder, twelve or
more sizable bullets, and three good flints.


Yes it had lapsed by 1777, but there were at least two milita acts before then. Not to mention the associators movement, which was for all intents and purposes a militia.
2.12.2008 12:34pm
Sam Heldman:
Mr. Kopel, in light of the author's comment here, I really think that fairness demands that you either retract the passage I have been asking about, or give some real factual basis for your statement. If you didn't ask for a copy, and if you can't point to some involved lawyer who did ask upon seeing the other side's brief and was refused, then you are being quite unfair.
2.12.2008 12:47pm
bonhomme (mail):
D. Kopel said:
Keeping that article out of sight of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny.

N. Kozuskanich said:
His assumption that the article must be flawed is unfounded, and is insulting to me and Rutgers.
Mr. Kozuskanich, you have displayed a combative attitude that needn't have been introduced. Both Messrs. Cramer and Kopel want to see the article and your research. Your dissertation is publicly available, but the article, not the dissertation is cited in the amicus brief. Why are you balking at sharing the article? Further, why are you balking at sharing your sources for your claims? You don't have to "...do his research for him." You've already done the research. It sounds as if you're resisting due to pique. If that's it, I suggest you look to the bigger picture and let your critics be silenced by the factual basis of your claims.
2.12.2008 12:50pm
Tony Tutins (mail):

It takes a village to use a gun.

I really chuckled at this succinct summation of the Bogus brief.
2.12.2008 12:51pm
Nathan Kozuskanich:
If you read through the assembly minutes, you will see that the bill was never signed by the governor and passed into law. See here for my run-down of the evidence.

Yes, there was the associator movement, a volunteer milita. But no man was compelled to serve, as I stated above, and the government was under no obligation to provide arms or leadership to the associators.

If you read the petitions to the Assembly from the 1750s to the Revolution, you will see that Pennsylvanians asked the Assembly for a militia law that would compel service. They asked the Quakers to step down from power since they would not pass such a law. Nowhere in the surviving pamphlet and newspaper literature do we see an overriding concern for an individual right to bear arms, or a desire to secure such a right in the 1776 Constitution. Instead, the new Constitution proclaimed that "every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary." The 1777 Militia Law demanded service from everyone, and a fine for pacifists.
2.12.2008 12:52pm
Tony Tutins (mail):

Nowhere in the surviving pamphlet and newspaper literature do we see an overriding concern for an individual right to bear arms, or a desire to secure such a right in the 1776 Constitution.

And this makes sense, because as Mr. K points out, the historical record shows that Pennsylvanians already enjoyed and exercised an individual right to bear arms, because they were able to voluntarily associate to form a volunteer militia which was neither armed by the government nor was it commanded by the government. People don't seek to secure rights that they take for granted.
2.12.2008 1:26pm
Kazinski:
Sam Heldman,
In Kozuskanich's own words he confirms Koppel's assertion:

The Rutgers piece will be out very soon and then you can have at it.


There you have it. Kozuskanich graciously tells Koppel to pound sand.
2.12.2008 1:35pm
Sam Heldman:
But whether Kopel can have the article today, or must wait until "very soon," is irrelevant to the point at hand, which had to do with the availability of the article for briefwriting in Heller. Kopel's brief is done, and he still hasn't piped up with an assertion that he tried to get the article while writing his brief but was rebuffed.

Anyway, I don't really give a damn about Heller either way. And I don't know whether the author was being evenhanded in his article, or in how he responded to requests to see his article. All I can see if that Kopel has made assertions of bad motive that go beyond any actual facts that he has alleged. It just rubbed me the wrong way, so I submitted a comment. If Kopel was actually being fair, and if there are facts as yet unstated that support his post's attribution of bad motives, let him say so.
2.12.2008 1:54pm
Bruce:
I am opposed to posting drafts on SSRN. It undermines the journal that will publish the final copy, and gives an author no assurance that his/her work will be properly cited or credited by others.

Likely story. It's a plot!
2.12.2008 2:38pm
Clayton E. Cramer (mail) (www):

I can assure everyone that Clayton Cramer did not ask me for a copy of my article, nor has Dave Kopel. I did send a copy to DC to see if they were interested in my argument.
Strictly speaking, I did not ask for a copy of the article. I asked for some evidence, foolishly assuming that Kozuskanich would be glad to show me the paper. Just about everyone who is a serious academic wants to hear criticisms of a paper before it gets into print, because differing perspectives often bring out flaws or weaknesses in a paper. When Kozuskanich told me to wait until it was in print, that he was essentially saying, "No."

I am under no obligation to share my research with Mr. Cramer, no matter what opinion he holds of himself. I am also not obligated to do his research for him. If he wants to look at the use of "defense of themselves" before 1777, he should knuckle down and sort through the historical record.
Again, serious academics regard the process of sharing information as a positive thing--a method by which we all acquire information. I pointed out to Kozuskanich the James Wilson quote about the meaning of the bear arms provision in the 1790 Constitution, and let him know that I had plenty of other examples. A serious scholar would have immediately asked for more details to improve the accuracy of a paper on the subject. You will notice that when Kozuskanich told me that there was no militia in Pennsylvania at the start of the Revolution, I asked for more details, and (as mentioned belong), corrected this on my blog.

As for the Pennsylvania militia, PA had no militia law before 1777, and thus before then did not have an official militia in which men were obligated to serve. This is historical fact, which Cramer himself acknowledged on his own blog. See this post.
Yup. It had no official militia. (I was misled by finding the 1757 bill in a publication titled Statutes at Large--which always means actual laws passed and in effect.) But as I also pointed out, the official records of the Revolutionary government frequently refer to the Pennsylvania Militia in 1776, give them orders, and supply them with ammunition--when there was no official militia.
2.12.2008 2:46pm
Clayton E. Cramer (mail) (www):

I understand Cramer's point that he asked for a draft several months ago, but that is not really the same thing - since it seems reasonable to think that it was not ready for publication several months ago, and also since it (presumably) hadn't yet been cited by anyone in litigation.
But it was obviously written for the purpose of the DC litigation. Furthermore, as I have pointed out, serious scholars love to get careful evaluations of their work before it goes to print--just to make sure that they haven't made factual mistakes, scrambled a logical argument, or missed details that would be useful or improve the accuracy of the paper. I wonder why Kozuskanich didn't want that? Especially since he was unaware of James Wilson's remarks, which should have at least given him pause as to accuracy of his claims about the meaning of the RKBA provision of the 1776 Penn. Const.
2.12.2008 2:52pm
Clayton E. Cramer (mail) (www):

Nowhere in the surviving pamphlet and newspaper literature do we see an overriding concern for an individual right to bear arms, or a desire to secure such a right in the 1776 Constitution. Instead, the new Constitution proclaimed that "every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary."
Yes, and if the right to bear arms in the 1776 Constitution was in Art. VIII, alongside that language, you might have an interesting argument. But the bear arms language is in Art. XIII, and has curious parallels to other clearly individual rights:


X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.

...

XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence of themselves and the state;...

XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance. [emphasis added]
Which is more likely? That the 1776 Constitution's writers used "That the people have a right" to refer to an individual right in Art. X, XII, and XVI--but in Art. XIII it means something completely different? And then, fourteen years later, the 1790 Penn. Const. uses similar language to guarantee the rights of citizens to bear arms--and the primary author of the 1790 Constitution says directly that it protects an individual right.

For several decades, every state supreme court that rules on the meaning of the "bear arms" language used in the 1776 and 1790 Penn. Const. (and widely copied by other states) either explicitly agrees that it protects an individual right, or implicitly acknowledges that it is an individual right by failing to raise Kozuskanich's argument.

No matter what evidence Kozuskanich has, the clear-cut understanding of this phrase in the ensuing decades should at least raise some questions about whether Kozuskanich has this correct. And yet his reaction when I pointed out a devastating piece of evidence from James Wilson was essentially "ho-hum." He learned well at Saul Cornell's feet, it appears.
2.12.2008 3:03pm
Clayton E. Cramer (mail) (www):

I am opposed to posting drafts on SSRN. It undermines the journal that will publish the final copy, and gives an author no assurance that his/her work will be properly cited or credited by others.
Why does publishing in a law review give assurance that it will be properly cited? Is there some magic mind control ray that is emitted when you open the printed over that prevents plagiarism?

Your concern that posting drafts on SSRN "undermines the journal that will publish the final copy" would make some sense if these were for-profit magazines. But in scholarly publishing? Huh? Isn't it odd how many law reviews end up publishing papers that were originally posted on SSRN?
2.12.2008 3:07pm
Clayton E. Cramer (mail) (www):

First, historians should not engage in advocacy. Bellesiles showed the tendency to fudge the data is too great.
I disagree. There's nothing wrong with historians engaging in advocacy. But historical evidence should drive their position about public policy--not the other way around. Bellesiles was an extreme example of that, but watching Rakove's behavior when I debated him in Houston a few months back didn't impress me. He argued in one debate that there was great intentionality in the language in the first clause of the Second Amendment. In the next debate, he argued that the individual votes on various amendments to the Second Amendment didn't mean much, because members of Congress didn't really take any of the Bill of Rights very seriously. I agreed with him--and pointed out what he had said in the previous debate--and he became visibly angry. He also wasn't too pleased when I quoted p. 9 of his book Original Meanings to demolish one of his claims in the first debate.

The core problem is that there are historians who know that their position about gun control runs contrary to the evidence of original intent that they themselves have published--but rather than admit that, have to engage in the most absurd of arguments to defend their policy of disarming law-abiding adults.
2.12.2008 3:16pm
Clayton E. Cramer (mail) (www):

I pointed out to Kozuskanich the James Wilson quote about the meaning of the bear arms provision in the 1790 Constitution, and let him know that I had plenty of other examples. A serious scholar would have immediately asked for more details to improve the accuracy of a paper on the subject.
In going back over my email, I see that Kozuskanich did ask for the James Wilson quote, which I provided him.
2.12.2008 3:28pm
banduraj (mail):
Since I have started reading this blog, I am surprised at the level people will go to prove something. It seems some times the forest is hard to see through all the trees.

The Bill of Rights is a list of restrictions placed on government, plain and simple. I can't imaging wining a second amendment case could be harder than that.
2.13.2008 9:46am
Nathan Kozuskanich:
Rutgers has agreed to post my article on the 1776 Pennsylvania Constitution on their website.

You will note, should you read it, that I have not included any discussion of James Wilson, evidence Mr. Cramer claims demolishes any argument I may have about a collective reading of "defense of themselves." This is because this evidence is not anywhere near as damaging as Mr. Cramer thinks. James Wilson did not write the 1776 Constitution, and was political enemies with the men who did write it. Thus, he cannot speak to their motives and had no hand in the document they produced.

Wilson was responsible for the 1790 PA Constitution, and wrote that its provision to bear arms ("the right of citizens to bear arms, in defense of themselves and the State, shall not be questioned" (Art. IX, Sec. 21)) supported "the great natural law of self preservation." While this is open to an individual rights reading, Article VI, Sec. II of the same constitution asserted that "The freemen of this commonwealth shall be armed an disciplined for its defense: Those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service. The militia officers shall be appointed in such manner and for such time as shall be directed by law." This is clearly a discussion of the militia and collective responsibility to defend the state. Are we to assume that Wilson and the convention used "bear arms" in a collective sense in Art. VI, Sec. II, but then in an individual sense in Art. IX, Sec. 21? The provision to bear arms in the 1790 Constitution is preceded in Sec. 21 by a guarantee of a right to assembly (you can't assemble by yourself), and followed by two military provisions restricting a standing army and the quartering of troops. Even Art. IX, Sec. 21 carries an obligation to defend the state. Your personal firearm, in other words, was subject to regulation by the state and could be used in the state's defense. This is hardly a slam dunk for the Standard Model.

One also wonders why, if a solely individual right to bear arms was generally accepted in PA, Dr. James Reynolds never appealed to the 1790 Constitution in his 1799 trial for brandishing a pistol while fending off a mob.

As even a cursory glance at Cramer's latest article shows, he has a propensity to use the future to understand the past. An analysis of his footnotes reveals that his attempt to divine the Founders' understanding of "bear arms" focuses on sources published in England mainly in the 1800s, and constitutions and court cases from the nineteenth century. Reconstructing the original meaning of an eighteenth century constitution text on the basis of documents written more than a generation later, and in some cases one civil war later, is profoundly ahistorical. America's growing individualism in the Age of Jackson has been readily accepted by scholars since Alexis De Tocqueville observed it in the 1830s, and its impact on gun rights ideology has already been charted by Saul Cornell, with whom Cramer claims to disagree.
2.14.2008 2:06pm