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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 DC's reply brief, filed last Wednesday, cites another unpublished Kozuskanich article, this one in the U. Penn.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.

PersonFromPorlock:
Well, you're dealing with people who think the only reason for a double-barrelled shotgun is so the average American male can indulge in his desire to shoot Bambi and Tinkerbell. While drunk. What do you expect?

(Incidentally - Barney first.)
3.9.2008 6:34pm
Clayton E. Cramer (mail) (www):
I think the difficulty that Kozuskanich and friends have understanding Dr. Reynolds' case is that they can't imagine that there is a difference between being armed for self-defense and "assault with intent to kill."
3.9.2008 6:41pm
Nathan Kozuskanich:
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.
3.9.2008 8:42pm
Cornellian (mail):
Mr. Kozuskanich, will you be responding in more detail here? Your comment addresses only one narrow (albeit very significant) point.
3.9.2008 8:48pm
Nathan Kozuskanich:
"There is no dispute that the phrase 'bear arms' was often used by the Founding generation in a military sense."
--Clayton Cramer and Joseph Olson

Of course, the Founding generation not only used "bear arms" in a military sense often, they almost exclusively used it that way. It is interesting that I am being accused of a selective reading of American history when I did a comprehensive survey of thousands of pamphlets and newspaper articles from 1750-1791 to arrive at my conclusions.

Despite the above admission, Cramer and Olson claim that the term "bear arms" was not generally understood to refer to the military use of arms during the Founding Era. But, an analysis of their footnotes reveals that they have focused on sources published in England mainly in the 1800s, and on nineteenth century state constitutions and court cases. The authors have a remarkably flexible notion of time which allows them to consider sources from throughout the 1800s as evidence of "original" intent. 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. So, while they claim their paper is about how the "Founding Generation" understood bearing arms, most of their sources come from the nineteenth century, and none come from the colonies or states themselves before 1789. In essence, what the authors are asking their readers to do is ignore the preponderance of evidence that supports a military reading of "bear arms" in favor of a few sources that do not.

A peek some of the evidence that Cramer has trumpeted on his blog reveals several problems. There is no doubt that American colonists owned guns and kept them in their home, and that they came from an Anglo tradition that prized gun ownership. What Cramer and Olson do prove to us, though, is that these private arms were subject to regulation. Henry VIII's 1534 statute forbade the Welsh from bringing their arms to court, and a 1724 statute prohibited the Scots from having arms "in his, her of their custody" in public places like church services, markets, or fairs. The evidence the authors provide from the 1780 London Riots is even more problematic for their argument. In order to quell the riots, orders were given to "disarm the citizens, who had taken up arms, and formed themselves into associations." The whole point of the order was to disarm illegal voluntary military associations that operated "without a commission from the King." The English Bill of Rights guaranteed that Protestants could "have arms for their defense suitable to their conditions and as allowed by law," and these rioters were clearly violating the law. These sources are by no means ringing endorsements of the Standard Model. If anything, they provide strong support for gun regulation, not an unfettered right to own arms or use them in rebellion.

The question is this: if the Founding Generation used the term "bear arms" almost exclusively in a military context from the 1750s through the ratification of the Bill of Rights (and surely the sheer number of references I found trumps Cramer's very few non-military usages from the same period), why would they abandon that standard usage when drafting the Second Amendment? Cramer dismisses these usages since they occurred during times of war. But the whole point is that war and concern over the militia was the very context for the Constitution. Where is the prolonged discussion over an individual right to self defense in the surviving documents? The argument that "absence of evidence is not evidence of absence" is just another way of saying the historical record does not support your interpretation.
3.9.2008 9:21pm
LM (mail):
Well, you're dealing with people who think the only reason for a double-barrelled shotgun is so the average American male can indulge in his desire to shoot Bambi and Tinkerbell. While drunk. What do you expect?

If they're in the same vicinity, one barrel should suffice.
3.9.2008 9:24pm
LM (mail):
Nathan Kozuskanich,

Your argument about the London Riots doesn't appear to support your thesis. It looks like the objection was to the armed citizens organizing themselves into illegitimate militias, not to the arming itself.
3.9.2008 9:37pm
SomeJarhead (mail):
It should come as no surprise that the District and its sycophants now resort to revisionist history (if not outright fabrication) in what may prove to be the seminal case of our generation. What bears greatly on our profession is how, if at all, we will address this behavior, given its unethical and disreputable nature. In short, will we continue to let lawyers get away with lying for their client, ignoring the consequences to our profession and our society?

In the balance, I fear, hang our freedoms.
3.9.2008 10:08pm
Clayton E. Cramer (mail) (www):

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.
Your footnote points to Bellesiles's Arming America to assert that guns were scarce--and fails to mention that the probate inventories upon which this claim is based have been demonstrated to be false--and not just wrong. Who's being dishonest?
3.9.2008 10:18pm
33yearprof:
From www.armsandthelaw.com blog.

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.

Posted by: Carl in Chicago at March 9, 2008 06:35 PM
3.9.2008 10:18pm
alias:
As this post has started a decent debate about a fairly high-level topic, and as Cramer and Kozuskanich are responding directly and substantively, I suggest that those of us with nothing substantive to add refrain from cluttering up the comments.
3.9.2008 10:19pm
SomeJarhead (mail):

Of course, the Founding generation not only used "bear arms" in a military sense often, they almost exclusively used it that way.
-Nathan Kozuskanich


Poor Nate. You do realize, I sincerely hope, that a significant plurality of Americans are, for the purpose of a "Founding generation" analysis, in fact in military service?
3.9.2008 10:20pm
Clayton E. Cramer (mail) (www):

Despite the above admission, Cramer and Olson claim that the term "bear arms" was not generally understood to refer to the military use of arms during the Founding Era.
No, you are lying. We do not ever make that claim. We agree that the term was often used--even a majority of the time, perhaps--in a military context. But we point out that there are many uses that are completely and unmistakably individual and civilian in nature. It is your side that claims that "bear arms" in an individual or civilian sense is "idnosyncratic."


But, an analysis of their footnotes reveals that they have focused on sources published in England mainly in the 1800s, and on nineteenth century state constitutions and court cases.
We've focused on sources written in English, including English statutes from the 1700s (which is a pretty darn important basis for figuring out what the legal meaning of the term was), and usage by people who have what can only be called extraordinary importance to understanding American law: James Wilson, Associate Justice of the U.S. Supreme Court, primary author of the 1790 Pennsylvania Constitution, and John Adams (who you may have heard of before).

The 18th and 19th century state constitutions, and the cases that reference those "bear arms" guarantees are important because there is a continuity from the Founding Generation for at least a couple of generations. Rakove's Original Meanings, by the way, makes that point: usage in the following decades, while not dispositive, certainly provide corroborative evidence of intent. Significantly, there is not a single decision for decades after the drafting of the Second Amendment that Kozuskanich or friends can point to that argues: "This term 'bear arms' means a military context--not an individual carrying a weapon for self-defense. Therefore, this constitutional provision doesn't protect an individual right."

By contrast, there are dozens of decisions that either explicitly recognize that the right is individual, or assume that the right is individual--even in cases, such as Aymette v. State (Tenn. 1840), and State v. Buzzard (Ark. 1842), where it would have greatly simplified the decision of the state supreme court in upholding weapons regulations that they liked.

If, as Kozuskanich and friends claim, "bear arms" was not understood to refer to an individual right, why is that people that Justice James Wilson, and dozens of state supreme courts in that period, never thought to mention it, but just assumed that it was an individual right?
3.9.2008 10:29pm
Geoff (mail) (www):
The reason the debate over the second amendment is so fierce is because the Constitution is an imperfect document that is subject to being changed, either by the Supreme Court or through the procedures set forth therein. It is disingenuous for lawyers like Mr. Kozuskanich to distort history in an attempt to erase the second amendment. It would be much more honest for him and others of like mind to seek a repeal of the second amendment. However, the one thing that will never change was set forth as follows:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it . . ."

So go ahead and keep up your efforts to rewrite the Constitution in order to bring about your utopian "gun free" society. Just remember that even if you succeed, I, and millions of others, will be ready, willing, and able to abolish what you seek to impose on society, as is our divine right.
3.9.2008 10:39pm
33yearprof:
If, as Kozuskanich and friends claim, "bear arms" was not understood to refer to an individual right, why is that people that Justice James Wilson, and dozens of state supreme courts in that period, never thought to mention it, but just assumed that it was an individual right?


Even better, why did Thomas Jefferson and James Madison (who certainly knew the speech usages of the 1780's better that we) use "bear" a gun in a HUNTING statute just four (4) years before (1785) Madison himself wrote the BoR?
3.9.2008 10:41pm
Clayton E. Cramer (mail) (www):

What Cramer and Olson do prove to us, though, is that these private arms were subject to regulation. Henry VIII's 1534 statute forbade the Welsh from bringing their arms to court, and a 1724 statute prohibited the Scots from having arms "in his, her of their custody" in public places like church services, markets, or fairs.
This may be a surprise to you, but no one disputes that English law regulated, sometimes quite severely, possession of arms. No one disputes that there were various regulations of arms in the Colonial, Revolutionary, and Constitutional period. If this argument was about complete laissez-faire vs. reasonable regulation, you might have a point. But the argument is about whether the government has the authority to regulate arms in the public interest vs. a complete monopoly on arms possession by law-abiding adults.


The evidence the authors provide from the 1780 London Riots is even more problematic for their argument. In order to quell the riots, orders were given to "disarm the citizens, who had taken up arms, and formed themselves into associations." The whole point of the order was to disarm illegal voluntary military associations that operated "without a commission from the King." The English Bill of Rights guaranteed that Protestants could "have arms for their defense suitable to their conditions and as allowed by law," and these rioters were clearly violating the law.
And the point of the quote was that members of Parliament pointed out that this disarming was contrary to the right to bear arms guaranteed by the English Bill of Rights! More importantly, the Second Amendment is not the English Bill of Rights considerably narrower definition of "suitable to their conditions and as allowed by law"--as a number of early Republic commentaries point out.

Furthermore, if you read the Parliamentary debate we quoted, you will see that it was precisely because those who were defending their shops and hopes were not breaking the law by doing so. Indeed, it was the military commanders who did the disarming that were, in the opinion of several members of the House of Lords, that were breaking the law.


The question is this: if the Founding Generation used the term "bear arms" almost exclusively in a military context from the 1750s through the ratification of the Bill of Rights (and surely the sheer number of references I found trumps Cramer's very few non-military usages from the same period), why would they abandon that standard usage when drafting the Second Amendment?
1. The Founding Generation did not use the term "almost exclusively in a military context." And that was the point of the paper by Olson and myself--there are a lot of other non-military uses of the term--and some of them, such as those by James Wilson and John Adams, deserve considerable weight because of who these people were, and how they used the terms in ways that are especially relevant to understanding the Second Amendment.


Cramer dismisses these usages since they occurred during times of war. But the whole point is that war and concern over the militia was the very context for the Constitution. Where is the prolonged discussion over an individual right to self defense in the surviving documents?
I dismiss not these usages, but the significance of their preponderance because government bodies were focused in time of war on issues of the militia. This is no surprise. I suspect that if you did a similar search for the term "blanket" you would find what I have found--there's a lot of governmental documents in that period that are terribly concerned about shortages of them. From this, I suppose, you would conclude that the common use of "blanket" should be read as indicating that blankets are predominately military equipment. How many non-governmental, non-militia uses are there?

The lack of discussion of an individual right to self-defense was because no one seriously disputed that there was such a right. John Adams expressed his concern about the dangers of non-governmental militias, and indicated that there was no general right to be armed--but with the specific exception "for private defence." Whatever the other concerns might be in the aftermath of Shays' Rebellion, it could not trump self-defense as a right.
3.9.2008 10:45pm
Clayton E. Cramer (mail) (www):

As this post has started a decent debate about a fairly high-level topic, and as Cramer and Kozuskanich are responding directly and substantively, I suggest that those of us with nothing substantive to add refrain from cluttering up the comments.
But there are plenty of you adding substantive comments. Pile on!

Make no mistake about it: Kozuskanich and friends are having to falsify history because there is no other way to achieve the desired end: a monopoly on deadly force in the hands of the government. If there is anything that the 20th century has shown us, it is the danger of allowing such concentrations of power.
3.9.2008 10:47pm
Mike Hansberry (mail):
Nathan Kozuskanich,

Where is the prolonged discussion over an individual right to self defense in the surviving documents?

Where during that same time period is there even a fleeting reference explaining that the right of the people to keep and bear arms refers to only those persons in the actively training militia?


But the whole point is that war and concern over the militia was the very context for the Constitution.

We are talking about the Bill of Rights. The whole point of that was summed up in Madison's introduction(excerpt below) -not a damned thing about war, but lots of talk about rights of the people.

Having done what I conceived was my duty, in bringing before this House the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support, I shall content myself, for the present, with moving "that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the Legislatures of the States, to become, if ratified by three-fourths thereof, part of the constitution of the United States." By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the House. I should advocate greater despatch in the business of amendments, if I were not convinced of the absolute necessity there is of pursuing the organization of the Government; because I think we should obtain the confidence of our fellow- citizens, in proportion as we fortify the rights of the people against the encroachments of the Government. (my emphasis)



The question is this: if the Founding Generation used the term "bear arms" almost exclusively in a military context from the 1750s through the ratification of the Bill of Rights (and surely the sheer number of references I found trumps Cramer's very few non-military usages from the same period), why would they abandon that standard usage when drafting the Second Amendment?

Nice try, but the question is how were those words used in the context of the Second Amendment. Surely you understand the concept of interpreting words in context. Why did the framers use the words "the right of the people to keep and bear arms" and yet you only see "bear arms"? How many instances of a "right of the people to bear arms" or of "a right of the people keep and bear arms" have you found that treat that right as exclusively belonging to members of the actively training militia?

Can you really dismiss James Wilson's (Crammer/Olsen What Does Bear Arms Imply) usage of those words as uninformed or non-standard?

What do you make of Bliss vs. Commonwealth?
Is it really your position that there was some mysterious transformation in meaning of those words (a right of the people to keep and bear arms) some time in the early 1790's, or perhaps the early 1800's? How do you know that the supposed mysterious transformation in meaning did not occur earlier? Afterall an earlier transformation in meaning would explain the statements of The PA Minority, Tench Coxe, and James Wilson. Of course, if the meaning had been the same all along, and had been the same in 1787 as it was 1819(Bliss) then it all fits very nicely and we do not have to suppose a mysterious transformation. What doesn't make any sense is the supposed generally accepted undertanding that you claim existed at the founding through the adoption of the BOR and the early 1800's court cases describing an individual right.

When exactly did this mysterious transformation in meaning occur?
3.9.2008 11:06pm
Tony Tutins (mail):
One thing I would like someone to look up is the wording of the Georgia Assembly provision about carrying guns "in" "places of public worship" used to support an assertion that carry and bear have separate meanings.

I ask this because "carry" in the mouth of a Southerner can mean to take, rather than to bear. In a past life dealing with truck drivers, I was surprised to hear a Southerner say, "Well, I'm going to bring a load and carry a load." Puzzled by this assertion he was going to bear 40,000 pounds of freight, I inquired and found out he simply meant he was going to take a full semitrailer load back on his return trip.

So if the law actually required Georgians to take guns to church, the distinction between carry and bear would be clear.
3.9.2008 11:24pm
wuzzagrunt (mail):
Let's take it back a couple of steps and allow Mr. Kozuskanich to explain why the 2nd Amendment was even deemed necessary, and why the Framers inserted it into the Bill of Rights. At that time, the militia was a significant component of federal military capability. Did they feel there was a danger of the federal government disarming its own military forces? Did the federal government feel the need to assert a "right" to arm itself? Why wasn't Article I, section 8 sufficient for that purpose? Why did they thoroughly confuse matters by putting in the imprecise language about "...the right of the people to keep and bear arms..."?

For a non-historian, non-constitutional scholar, like myself, this stuff is pretty confusing.
3.10.2008 12:09am
Tony Tutins (mail):
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.


Again I will say that the Bellesiles case shows that advocates make lousy historians. I was also wondering why Dr. K -- a historian and not a lawyer -- did not submit his findings about "bear arms" to a historical journal where it would be reviewed by his peers, rather than a law journal where the sources would be checked by some earnest 2Ls. The kids' cite-checking would surely detect sources that were not there, but they would lack a sense of context. For example, they would not notice what wasn't in the article but should be.
3.10.2008 12:21am
Acksiom (mail) (www):
Since the firearms suicide rate in the usa has consistently been 1.5 times the firearms homicide rate for many years now (see WISQARS Fatal Injuries: Mortality Reports), I personally would like to know why the proponents of self-defenselessness aren't doing more about outreach towards the suicidal.

Since they claim to be motivated by public safety and the prevention of tragedies, then simply by the raw data alone they should be investing 3/5ths of their resources in that area.

And when one includes the possible decrease in firearm homicides of others by suicidal aggressors, the case for prioritizing suicide outreach over anti-gun legislation becomes even more compelling.

So why is outreach towards the suicidal apparently not being at all addressed and funded by the firearm criminalizers?
3.10.2008 1:12am
Clayton E. Cramer (mail) (www):

One thing I would like someone to look up is the wording of the Georgia Assembly provision about carrying guns "in" "places of public worship" used to support an assertion that carry and bear have separate meanings.
The images of the 1770 law to which you refer is here.
I wish that I could say that the language used in it answers the question. It really doesn't.

You could argue that because it uses the word "carry... sidearms" in some places and "bear arms" in others that the words are interchangeable.

But you could also argue that the use of "bear arms" has a precise legal meaning akin to what Kozuskanich claims. When it refers to those who are legally obligated under the existing militia statute, it uses "bear arms."


I can't immediately say that one of these interpretations is clearly correct.

Yet when it obligates individuals who are obligated to "bear arms" to carry guns to church, it does not say that they are obligated to "bear arms" to church, but to "carry arms." Why? If "bear arms" referred specifically to a collective military duty--and this is clearly such--then why use "carry arms" here? The similar 1743 South Carolina statute
has this same odd combination of "bear arms" to refer to a legal obligation, but then uses the verb "carry" where "bear" should, in theory, be more correct, and less ambiguous.
3.10.2008 1:28am
Clayton E. Cramer (mail) (www):

Again I will say that the Bellesiles case shows that advocates make lousy historians.
Advocates don't have to be lousy historians. But as a general rule, if you start out looking for proof of A to justify B, and you keep finding evidence that at least partly disproves A, it should make you either:

1. Abandon A as an argument for B.

2. Consider whether B is a good idea.

3. Admit that A isn't a very strong argument for B, because A is either not true, or at least not 100% true.

If Bellesiles hadn't been so insistent that 98-99% of the evidence he found proved A, I might not have spent the time proving that he was a liar. The fact is that history is seldom 100%--or even 98%--on one side. Human beings and the societies in which they live are complex, sometimes confusing situations.

Those of you who have read my book Armed America know that in a few places, I pointed out evidence that argued for gun scarcity, at least in particular counties at particular times. This evidence was not overwhelming, but it was present. Unlike Michael Bellesiles, Ph.D., I felt an obligation to present all the evidence--even that which tended to contradict the majority of the evidence that I found.

If people like Saul Cornell, Jack Rakove, and the rest of Bellesiles's cheerleading section had thought for even a little while about the likelihood that Bellesiles was overturning a generally accepted assumption about American history and the evidence was so overwhelmingly on one side, they would have realized that something smelled a bit funny about this.

If I was going to pick anything to blame for the Bellesiles disaster, it would be deocnstructionism. Once you have accepted the notion that there is no actual truth, only ideas and arguments designed to justify certain social structures for the benefit of those in power--then the leap to creating whatever alternative form of truth benefits you--isn't so difficult.

A core value of the Enlightenment is that truth might be difficult to identify, and we should be careful not to get too arrogant about knowing when have found it. But our inability to nail down truth didn't mean that it wasn't out there.

Think of F=GM1M2/r^2. Newton's equation defined an absolute, universal truth. It wasn't easy to figure out. Newton had to develop calculus in order to derive this from Kepler's Laws and Brahe's observational data. But once found, this was truth--and it didn't matter if you were rich or poor, white, black, red, or yellow, male or female, capitalist socialist--that equation was truth. Argue with it all you want--it isn't going away.

Many of those who fancy themselves intellectuals today find this concept bizarre. One of the reasons is that Enlightenment intellectuals respected the physical sciences--and often understood them.

I started out a Constitutional History class some years ago by putting the even simpler Newtonian equation F=ma on the board. Not a single student had any idea what it meant. None of them had taken physics in high school or college. It was just gibberish--and yet it is at the core of Newtonian mechanics. More importantly, this idea of a universal, absolute, not culturally determined truth was at the heart of Enlightenment thought.
3.10.2008 1:49am
DJMoore (mail) (www):
As SomeJarHead points out, at the time of the Founding there was an extremely high proportion of veterans in the citizenry. It strikes me, then, that the Founders may well have used a quasi-military term to emphasize that they expected some degree of military preparedness in the general, civilian population. In other words, to the degree that it is a military term, so must we accept the use of military arms by the civilian militia, as opposed to mere sporting or even self-defense arms.

If so, then even if Kozuskanich's assertion that "keep and bear" was primarily military is correct, it is still fundamentally dishonest to use the phrase to crowbar arms from the hands of civilians.
3.10.2008 3:04am
stevelaudig (mail):
they can bear all the 1780s' technology "arms" they want to. muzzel loaders, flintlocks fine.

none of the "founders" were talking about uzis or .50 cals which is what the modernists want.

what was understood as an "arm" then, not now, seems to have been lost. but that's what happens with gun nuts.
3.10.2008 4:48am
Brett Bellmore:
I notice the printing press nuts have a similar blind spot.
3.10.2008 8:09am
advisory opinion:
So Congress may only raise 1780s armies? Horse drawn carriages, telegraph comms, the works.

None of the "founders" were talkng about tanks, nuclear weapons, ballistic missiles, infantry vehicles, kevlar, or electronic warfare, which is what Congress wants.
What was understood as an "army" then, not now, seems to have been lost. But that's what happens with the nuts in Congress.

Wibble.
3.10.2008 9:02am
wuzzagrunt (mail):
If you right a peevish letter to your Congressman, can you be prosecuted because you wrote it with a ballpoint pen, or must one write with a (1780s technology) quill dipped in an inkwell?
3.10.2008 9:53am
Sam Draper (mail):
The DC law bans flintlock pistols too.
3.10.2008 10:57am
Nathan Kozuskanich:
The Second Amendment was born out of a debate over federal control of the militia as outlined in Article 1 Sec. 8. Subsequent arguments in Congress and the press were over who would raise, train, and discipline that militia. For example, Maryland delegate and Attorney General Luther Martin ultimately opposed the Constitution, in part because it removed "any possible means of self-defence" from the states by "taking away . . . the right of organizing, arming, and disciplining of the militia" (1 Elliot's Debates 372). Sherman's comments, part of which have been cited above, were made within the context of debating militia exemptions for pacifists. Sherman went on to say that "the particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves." Proper defense was tied to the militia. If Americans were to "defend themselves," as Sherman put it, they needed to be able to "gather the whole force of the union to a point." Exempting pacifist defeated this purpose. So, are we to believe that Sherman, when debating control of the militia and exemptions from the militia, was not really talking about the militia?

This is not to say that Sherman and other did not beleive in an individual or personal right to self-defense (or that they expected the militia to show up if their house was being robbed). The pamphlet literature from the Founding is clear: men had a right to self defense under the laws of nature. But once men entered civil society, their natural rights were protected by the state and the proper reponse to a threat was regulated by law (i.e. one could not take justice into his own hands). Traditional Blackstonian theory held that one's back had to be against the wall before lethal force could be used. The Reynolds case shows that such a strict standard was slipping in Pennsylvania, if not the U.S. in general.

Did Americans own firearms? Yes. Did they use them in self defense? Yes. Were they expected to use their personal firearms in the miltia? Yes. Were those firearms subject to regulation? Yes. In order for the well-regulated militia to function and ensure the securiity of a free state, men needed to be guarateed a right to bear arms.

I would encourage readers to actually read my article. My views on Wilson, the importance of the Revolution as context, etc., are clearly laid out there, so there is no point repeating them here.
3.10.2008 11:21am
Alan Gunn (mail):

It wasn't easy to figure out. Newton had to develop calculus in order to derive this from Kepler's Laws and Brahe's observational data. But once found, this was truth--and it didn't matter if you were rich or poor, white, black, red, or yellow, male or female, capitalist socialist--that equation was truth. Argue with it all you want--it isn't going away.

This is, in a way, nitpicking, but it's annoying when non-scientists use science to make a point and get it wrong. Einstein showed that Newton's laws are wrong. Close enough for government work (or, for that matter, for engineering) except at very high velocities, but wrong.
3.10.2008 11:48am
billb:
Alan Gunn: And, of course, Relativity is "wrong," too, since it fails to comport with Quantum Mechanics. Of course, the point Clayton Cramer's post is in the previous paragraph about not being afraid to recognize that there are truths out there even if we only know them approximately. His wasn't a perfect attack on deconstructionism, but it has an element of truth to it.

*For the record, I winced when I read the Newton's Laws bit, too.
3.10.2008 12:02pm
Tony Tutins (mail):

images of the 1770 law to which you refer is here

Thanks, Clayton. The law reads very naturally when "take" is substituted for "carry". "Take" itself is used only after the carrier has arrived at the place of worship, where he is required to take his arms to his seat. "Carry" is alternated with "bring" the way "take" is alternated with "bring", i.e. one takes an item from one place (one takes with when one leaves one place) and brings it to another. My copy of D.A.R.E (Belknap-Harvard, 1985) says carry means "to take, bring" in Southern and South Midlands English, but the earliest print reference they give is 1899. Hopefully a language historian could resolve the issue.

"Bear arms" is used twice, once in the phrase "liable to bear arms in the militia", and once in the phrase "liable to bear arms." If bear arms had a purely military context, "in the militia" would be surplusage. I read it as only those required to bear arms must bring them to church. Note also that sea port inhabitants were required only to bring their side arms with them; DC's inhabitants have no side arms to bring.
3.10.2008 12:15pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 03/10/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
3.10.2008 12:31pm
Turk Turon (mail):
Quote from Geoff:

"So go ahead and keep up your efforts to rewrite the Constitution in order to bring about your utopian "gun free" society. Just remember that even if you succeed, I, and millions of others, will be ready, willing, and able to abolish what you seek to impose on society, as is our divine right."



Geoff, you rock!
The 2A is the last resort "master reset" switch. Let's hope it never comes to that.
3.10.2008 12:51pm
Charlie (Colorado) (mail):

...cites another unpublished Kozuskanich article, this one in the U. Penn. Journal of Constitutional Law.



Dave, serious question: how can it be both an unpublished article and in the U Penn. Journal?
3.10.2008 12:57pm
Charlie (Colorado) (mail):
(Incidentally - Barney first.)

This is bad why?
3.10.2008 12:58pm
Carl in Chicago (mail):
Regarding 33yearprof's posting of my comments on Hardy's "Of Arms and the Law" blog (see post above - 3.9.2008 9:18pm):

In all fairness, I should have prefaced my comments on Hardy's blog with something like this:

I am pleased to acknowledge that that serious historians and scholars, commited to truth and intellectual honesty, will take Prof. Kozuskanich to task regarding the details of his Rutgers Law Review article - an article that, as cited by DC and it's amici, endeavors to inform and direct critically important public policy.

Among those working to correct the damage intended by Prof. Kozuskanich and his colleagues are Clayton Cramer, Joe Olson, and David Hardy. These gentlemen and scholars (as well as many others) are working to fulfill a mission of utmost importance - one that is aptly described by the Academics for the Second Amendment: The organization seeks to foster intellectually honest discourse on the Constitution, the Bill of Rights, and, of course, the environment in which academics, judges, politicians, and the public place the rights preserved by the Second Amendment. Thank you, fellows, for your commitment to intellectual honesty and truth in history.

But personally, it's tiring and unfortunately distracting to constantly rebut such articles intellectually. It's exceedingly clear to me that such articles, as well as the work forwarded by Cornell's Second Amendment Research Center, as well as the 2000 Chicago-Kent Law Review, are all concerted attempts to obfuscate the history and intent of the Second Amendment. To use stronger language, it's my assertion that these are direct attempts to re-write history using tactics grounded in deception and dishonesty - all for the purposes of making that history compatible with certain modern views regarding politics and public policy. And, as such, these efforts are intimately tied to Joyce Foundation funding, an organization that we all know is predicated directly toward promoting and passing strict gun control in the United States (criminalization of private firearms ownership). Thus, these dubious and controversial so-called "intellectual debates" serve mainly to distract from the real issues at hand...because of these advocacy-linked efforts, Second Amendment historians and scholars are left to spend precious time and effort clarifying and correcting the dishonestly obfuscated meaning and intent of the Second Amendment. Thus, we are left with being forced (tricked) into dishonest and unessecary dramas.

Now don't get me wrong - I like a good drama. But sometimes, one simply wants to "cut to the chase." Thus my comments, posted by 33yearprof, were an attempt to "cut to the chase" on this matter.
3.10.2008 1:15pm
Mike M. (mail):
Mr. Cramer has hit on a major issue - the fact that a disturbingly high proportion of students are appallingly ignorant of basic science. Yet their opinions count. Making decisions based on ignorance, superstition, and Hollywood rumor is VERY bad policy.

There is an old saying that a law school teaches attorneys to swallow elephants easily and strain at gnats. A generous dose of physics, chemistry, and higher mathematics would do them a world of good.

Or we could just put engineers on the Supreme Court (I like that option...think of it as returning the Constutition to the Manufacturer for maintenance).
3.10.2008 1:16pm
Clayton E. Cramer (mail) (www):

they can bear all the 1780s' technology "arms" they want to. muzzel loaders, flintlocks fine.

none of the "founders" were talking about uzis or .50 cals which is what the modernists want.

what was understood as an "arm" then, not now, seems to have been lost. but that's what happens with gun nuts.
As others have pointed out, the DC law bans 1780s flintlock pistols, too, and by your reasoning, only 1780s style printing presses enjoy freedom of the press. Ditto, only 1780s style homes deserve the protections against warrantless searches. The cruel and unusual punishments clause clearly only applies to those barbarous practices known in 1780--not newer punishments.
3.10.2008 1:18pm
Clayton E. Cramer (mail) (www):

This is not to say that Sherman and other did not beleive in an individual or personal right to self-defense (or that they expected the militia to show up if their house was being robbed). The pamphlet literature from the Founding is clear: men had a right to self defense under the laws of nature. But once men entered civil society, their natural rights were protected by the state and the proper reponse to a threat was regulated by law (i.e. one could not take justice into his own hands). Traditional Blackstonian theory held that one's back had to be against the wall before lethal force could be used. The Reynolds case shows that such a strict standard was slipping in Pennsylvania, if not the U.S. in general.
Yet you are defending a law that does not simply regulate self-defense, but goes far beyond Blackstone--it makes it a criminal offense to use a gun in self-defense. DC residents have been prosecuted for using a gun in self-defense, because they had the gun loaded.
3.10.2008 1:21pm
Clayton E. Cramer (mail) (www):

For the record, I winced when I read the Newton's Laws bit, too.
For all practical purposes, Newtonian mechanics is still perfectly valid. It fails at high velocities, in high gravity fields, and in a few other areas. Unless you have a clock with parts per million accuracy, or a micrometer that measures down to nanometers, you won't be able to generally tell the errors.
3.10.2008 1:23pm
Clayton E. Cramer (mail) (www):

This is, in a way, nitpicking, but it's annoying when non-scientists use science to make a point and get it wrong. Einstein showed that Newton's laws are wrong. Close enough for government work (or, for that matter, for engineering) except at very high velocities, but wrong.
Look, I studied relativity in physics class. Until v starts to get a significant fraction of c, Newtonian mechanics is correct.
3.10.2008 1:24pm
Clayton E. Cramer (mail) (www):

The Second Amendment was born out of a debate over federal control of the militia as outlined in Article 1 Sec. 8. Subsequent arguments in Congress and the press were over who would raise, train, and discipline that militia.
And yet, when it came time to write a Bill of Rights, Madison did not use Virginia's request that would have clearly given the states authority over their militia. Instead, he used "the right of the people to keep and bear arms shall not be infringed" request instead. Similarly, Congress considered the language that would have granted authority to the states over their militias--and rejected it. More importantly, the language used in many of the state requests is either explicitly individual (New Hampshire) or is written in the form that the courts have overwhelmingly recognized as individual in nature (the requests from Virginia, New York, North Carolina, Rhode Island).

And for generations thereafter, when the Court heard arguments about state vs. federal control over militias, in cases such as Houston v. Moore (1820), no one seems to be aware that the Second Amendment changed the relationship defined in Art. I, sec. 8, which gave nearly complete authority over the militia to the federal government. You argue that the Second Amendment was to clarify or alter the power relationship between state and federal governments over the militia--but you have not a single statement to that effect from any of the Framers, from their contemporaries, or from any court case for generations, that demonstrates this.

We, on the other hand, have clear statements that demonstrate the opposite. Statements like Elbridge Gerry's comparison of disarming the citizens of Massachusetts to tyranny; Tench Coxe's statements of what the first draft of the Second Amendment was intended to do; St. George Tucker's commentary; William Rawle's commentary; dozens of court cases that overwhelmingly accept that the Second Amendment protected an individual right, or that accepted that the "bear arms" language of state constitutions did so.

Your side's use of evidence is law office history--except lawyers, at least, would be embarrassed by the weakness of your evidence compared to the volume of it that we have.
3.10.2008 1:34pm
Alan Gunn (mail):

Look, I studied relativity in physics class. Until v starts to get a significant fraction of c, Newtonian mechanics is correct.

No. Very close to correct, but never exactly right.
3.10.2008 1:35pm
Tony Tutins (mail):

Newtonian mechanics is correct.

No. Very close to correct, but never exactly right.


The same could be said of statistical mechanics, quantum mechanics, etc. The notion that one way to explain the universe must be or even can be "exactly right" is not valid. See the Heisenberg uncertainty principle, Schroedinger's cat, etc.
3.10.2008 1:42pm
Tony Tutins (mail):
Dave, serious question: how can it be both an unpublished article and in the U Penn. Journal?

Till Dave comes back: It's been accepted for publishing and currently being revised for publication, but that journal issue hasn't come out yet. The latest draft is available online, obviously.
3.10.2008 1:45pm
Clayton E. Cramer (mail) (www):

No. Very close to correct, but never exactly right.
If I recall the equations correctly, if v = 10,000 meters per second, then mass increases by .00000011%, and length decreases in the direction of motion by a similar amount. Time also slows down by that same percentage. Never exactly right, true, but so close that you can't measure it without fairly sophisticated equipment.
3.10.2008 1:53pm
KCSteve:

Sherman went on to say that "the particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia.


Beg pardon, but doesn't the highlighted bit pretty much negate your argument based on the whole? I admit I'm but a simple man but it appears to me that the whole thrust of the passage is that States are entitled to some of the same rights as individual Citizens - including the right to keep and bear arms.
3.10.2008 3:08pm
Clayton E. Cramer (mail) (www):

Beg pardon, but doesn't the highlighted bit pretty much negate your argument based on the whole? I admit I'm but a simple man but it appears to me that the whole thrust of the passage is that States are entitled to some of the same rights as individual Citizens - including the right to keep and bear arms.
It does. Even worse, the quote from Sherman that Kozuskanich uses in his paper actually uses the phrase "bear arms" to refer to the right of "every citizen," which I discuss here. Kozuskanich's fanatic desire to prove that "bear arms" refers to militia duty, and not an individual right, prevented him from noticing that he was quoting someone used "bear arms" to refer to an individual right.
3.10.2008 3:50pm
Carl in Chicago (mail):
wuzzagrunt said (at 3.9.2008 11:09pm):
Let's take it back a couple of steps and allow Mr. Kozuskanich to explain why the 2nd Amendment was even deemed necessary, and why the Framers inserted it into the Bill of Rights. At that time, the militia was a significant component of federal military capability. Did they feel there was a danger of the federal government disarming its own military forces? Did the federal government feel the need to assert a "right" to arm itself? Why wasn't Article I, section 8 sufficient for that purpose? Why did they thoroughly confuse matters by putting in the imprecise language about "...the right of the people to keep and bear arms..."?

For a non-historian, non-constitutional scholar, like myself, this stuff is pretty confusing.



In all honesty and with due respect, Sir, I suppose that "confusing" is an adjective incorrectly applied here. I posit that "confounding" or "befuddling" or even "muddling" would be more appropriate descriptors.

I feel your pain.
3.10.2008 4:14pm
PersonFromPorlock:
stevelaudig:

That's an old argument that earns an old response: "High-speed rotary assault press."
3.10.2008 4:23pm
Clayton E. Cramer (mail) (www):

If I recall the equations correctly, if v = 10,000 meters per second, then mass increases by .00000011%, and length decreases in the direction of motion by a similar amount.
Whoops! Forgot to take the square root of 1+(v^2/c^2). The mass increases more like .0000000555555555401234567987%.
3.10.2008 4:27pm
Vinnie (mail):
I love the fact that many posts here drift towards gun control topics and am amazed that gun control posts drift to physics.

You got dropped a sign Clayton, that should be 1- (v^2/c^2)shouldn't it?
3.10.2008 5:11pm
Nathan Kozuskanich:
No, the Sherman quote does not negate my argument. Look at the context--the debate over exemptions from military service. The purpose of guaranteeing that men had a right to arms under the constitution was so that they could serve in the militia. That's why he talks abou the gathering of the militia in the very next sentence. You cannot divorce Sherman's words from their context. This was not a debate over gun ownership, it was a debate over the militia. As such, the phrase "bear arms" was made within the context of men's obligation to the militia.
3.10.2008 5:47pm
MikeW (mail):

Sherman went on to say that "the particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia.


I noticed the same thing, KCSteve. Anti-2A folks exhibit the same type of blindness in their analysis of the Miller case. Since the shotgun in question was held to be not protected for personal use because it had no use in the militia (a ludicrous claim in itself - ever heard of a trench gun?) they claim that said protection exists only in the context of a militia. I'm neither an enlish professor nor a lawyer, but that's not what I get out of it.

I AM an engineer though and I do appreciate the slide into physics. (I have to agree with Clayton that Newton's laws are more than close enough for everyday work.) I am a firm believer that a decent grounding in the physical sciences and/or engineering would greatly benefit students in EVERY curriculum (not to mention the electorate). Engineering forces you to deal with the world as it is, not as you would like it to be.
3.10.2008 6:05pm
Thirdpower (mail) (www):
Your right, it wasn't a debate over individual gun ownership as that was already considered a given as Sherman clearly stated.


privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made.

That has nothing to do w/ needing to be a member of a militia to bear arms. It was the states that needed the militia's to defend their sovereignity.
3.10.2008 6:15pm
Clayton E. Cramer (mail) (www):

I love the fact that many posts here drift towards gun control topics and am amazed that gun control posts drift to physics.

You got dropped a sign Clayton, that should be 1- (v^2/c^2)shouldn't it?
Mass increases as v approaches c (+ sign). That's why you can get very close to c, but can't reach c--as v reaches c, the mass reaches infinity, and the energy required to accelerate up to c reaches infinity.

Similarly, the length in the direction of motion decreases as v approaches c (- sign). The closer v gets to c, the shorter the object, until at c, it is 0 length (1-c^2/c^2). Ditto for time: as v approaches c, time slows to 0 (- sign).
3.10.2008 11:27pm
Clayton E. Cramer (mail) (www):

No, the Sherman quote does not negate my argument. Look at the context--the debate over exemptions from military service. The purpose of guaranteeing that men had a right to arms under the constitution was so that they could serve in the militia. That's why he talks abou the gathering of the militia in the very next sentence. You cannot divorce Sherman's words from their context. This was not a debate over gun ownership, it was a debate over the militia. As such, the phrase "bear arms" was made within the context of men's obligation to the militia.
You are so blinded by your desire to disarm law-abiding adults that you don't even notice that Sherman's analogy is that "every citizen" has a right to "bear arms" for self-defense is the same as the right of the state to have a militia for self-defense.
3.10.2008 11:29pm
RAH (mail):
Nathan,

Your argument explicatively states, "the particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded." So there is the recognition that private citizens have the right to be armed. This is exactly what the DC law prevents in effect, by not allowing them to be purchased and to carry arms in the house or to carry them on the persons or in the transportation when out of the house.

Since a house invasion is the same in principle as the state being invaded, the principle is the same, private citizens can use personal arms to repel invaders in their house. This is exactly why the DC law is unconstitutional as your argument proves.

The argument that Sherman had espoused, presupposed the right of individuals and the thrust was how to require private people to assume the duty of militia in order to defend the town, counties and the state in a larger conflict. Then the argument was in the larger context of how a new nation was to call up militia in order to defend the new nation.

The regulation did not mean laws but rather how to standardize the equipment of a militia member and to standardize such thing as how tents should be set and latrines which are necessary details when a group of people are together, in order to maintain order in the camps. Also "to regulate" was also to mean the training of member of the militia who are also private citizens. The states were worried that after the War of Independence that potential militia members would not take the time to train together and practice the marksmanship skills as well as to how to march, carry the equipment, including arms and how to set up an orderly camp.

A militia is comprise of private citizens and without the ability to form a militia, the states and the new nation would be unable to defend the territory. Now in the modern context many do not feel that there is a need for militias to defend the territory since we have a standing army. That is foolish since the standing army is comprised of primarily private individuals. The private citizens need to have the marksmanship skills prior to entering an army or the defensive ability is compromised. The very idea of civilian marksmanship programs was to address the lack of marksmanship skills of soldiers. The idea was to encourage private citizens to practice marksmanship and to encourage the private citizens to purchase weapons in order to have a more prepared populace in the case of needing to call the population for defensive duty. DC law prevents this purpose since it takes away the ability of private citizen to purchase guns and practice those skills.

So DC law not only fails to recognize a natural right, it prevents that right to be exercised. It also goes against the preparation purpose of those laws.

The second amendment only recognizes a right that is inherent in being human, that all humans have the natural right to defend themselves, their family and by extension their community. Amendments or any governmental law cannot take this inherent right away. Laws that attempt to obstruct this inherent right of defense are inherently unlawful. To argue that citizens should not exercises these right and the means (guns) are to taken way reduce free men to the status of slaves.
3.11.2008 9:44am
Nathan Kozuskanich:
Sherman also said that the state had "the right of declaring who should bear arms."
3.11.2008 12:14pm
Noops (mail):

Sherman also said that the state had "the right of declaring who should bear arms."


This seems to directly contradict that more clear parts of the Second Amendment. The 2A implies that the right is pre-existing through it's language that the "right of the people to keep and bear arms shall not be infringed" This seems quite explicit that the right actually existed outside of the government and that the Amendment's function is to directly limit government's intrusion upon it.

Nathan: Now one could argue that this doesn't necessarily impact the collective or individual sides, I think it does basically show the mental gymnastics that you've gone to to justify your position. I think you'd probably deny it, but it would seem that you've trapped yourself a little bit.

Gold medal to you for the gymnastics though.
3.11.2008 1:20pm
Nathan Kozuskanich:
No mental gymnastics needed. Congress consistently used the phrase "bear arms" within a military context (i.e. when discussing the militia, the army, etc.). What was at stake for Sherman was exemption from militia duty. Madison argued that no one had ever been able "to make [the Quakers] bear arms," and so Congress would be wise to "make a virtue of necessity, and grant them the privilege." Representative Giles opposed the exemption, arguing that "personal service . . . was a debt every member owed to the protection of government, a debt which it was immoral not to pay." Then Sherman jumped in with his argument that Congress (under Art. 1 Sec. 8) could not grant an exemption for pacifists since the states had not goven up "the right of declaring who should bear arms."

Note that the discussion here is all about the militia, and that "bear arms" is referring to using arms in militia service. Several states had asked for military exemptions for "any person religiously scrupulous of bearing arms." Since we know that Quakers owned guns and hunted with them, it makes sense that "bearing arms" in this case refers to military service, not carrying or owning firearms.

Sherman then went on to argue that it was the privilege and right of every person to "bear arms and to resist every attack on his person and property." Are we to assume that Sherman suddenly stopped using bear arms in a military sense? Or that he had stopped talking about the militia for two sentences before he resumed with talk of "the people" granting power to general government to organize a militia?

The only way we can make sense of Sherman's comments in their entirety is to see the right to bear arms as a civic right intimately tied to militia service.
3.11.2008 5:25pm
Mike Hansberry (mail):
Nathan Kozuskanich

You have painted yourself into a corner.

Sherman then went on to argue that it was the privilege and right of every person to "bear arms and to resist every attack on his person and property." Are we to assume that Sherman suddenly stopped using bear arms in a military sense? Or that he had stopped talking about the militia for two sentences before he resumed with talk of "the people" granting power to general government to organize a militia?


Yes, either that or your defintion of "intimately tied to militia service" includes each private citizen defending himself and his property. Either way your argument is severely undermined.

What is it then, does "militia service" include private self defense, or is private self defense something apart from "militia service" ?

If the former,then private self defense is guaranteed by 2A regardless of how "bear arms" is read. If the latter, then Sherman was using "bear arms" to refer to an individual right outside of "miltia service".

Either way you lose.
3.11.2008 6:37pm
Mike Hansberry (mail):

Nathan Kozuskanich,

You face the same choise with Wilson's statement.

"With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognized in the constitution of Pennsylvania. "The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. "They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom, and of their own persons."


Either Wilson is using "bear arms" to refer to the use of arms in self defense outside the context of Militia duty,

OR

self defense ("own persons") is linked to militia service in that one who defends himself IS performing "militia service".


Note also that Wilson links self preservation (their own persons) and "defence of themselves" undercutting yet another of your arguments.
3.11.2008 8:12pm
Nathan Kozuskanich:
Mike,

You are forgetting the very mechanism of defense that Sherman is talking about: the militia. How could Americans "more successfully . . . defend themselves," Sherman asked: by collecting "the whole force of the union" into a militia.

If your interpretation is correct, then how do you account for Sherman's assertion that the state had the "the right of declaring who should bear arms"?
3.12.2008 11:15am
Carl Donath (mail):
Sherman then went on to argue that it was the privilege and right of every person to "bear arms and to resist every attack on his person and property." Are we to assume that Sherman suddenly stopped using bear arms in a military sense?
No, we are to assume that an attack on even 1/300,000,000th of the nation - a single person - warrants the same protection as the whole nation. A citizen is a part of a nation; a nation's interests do not vanish when merely a single citizen is threatened. As such, the right of that individual to equip and defend "an army of one", to be a well-regulated militia of one, to be a secure and free state of one, shall not be infringed.

Methinks you are trying to make a distinction where there is no difference. Iron is still iron even if discussing merely a single atom thereof. As a citizen of the USA, and a Congressionally declared member of the militia thereof, my right to arms, and to use them in my defense, is just as valid as that of any state.
3.12.2008 4:43pm
Carl Donath (mail):
how do you account for Sherman's assertion that the state had the "the right of declaring who should bear arms"?

That the state has a right to declare who SHOULD bear arms does not necessarily logically translate into the state also having the right to declare who SHOULD _NOT_ bear arms. Certain categories of residents are reasonably expected to have an obligation to a particular duty; that others are not so obliged does NOT in turn mean the state may PROHIBIT them from contributing as best they can.
3.12.2008 4:47pm
Mike Hansberry (mail):

Nathan,

According to Sherman, the mechanism that "private citizens" have to defend their rights is "by force of arms" -arms which they possess by right -not because they may belong to a militia.

I don't think it at all plausible that "private citizens" meant only people enrolled or actually serving in a well- regulated militia. Sherman meant each person in his private capacity.

Earlier Sherman said it was "the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made". The use of the singular "his liberty and property" shows that Sherman was not referring only to community defense. Moreover, Sherman referred to the right to bear arms as an "essential right". I count two more strikes against your claim of a mere "civil" right to bear arms.



Representative Sherman questioned if Congress could give an exemption to pacifists since "the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?"91 He went on to argue that it was the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves


Nathan asked:
how do you account for Sherman's assertion that the state had the "the right of declaring who should bear arms"?


The right mentioned in that quote is a right the state governments vis-a-vis the general government, and it was mentioned in regards to Sherman's objection to Congress' granting of exemptions to pacifists. Sherman argued against those exemptions by way of analogy.

Sherman reasoned that government can not deprive private citizens the right to use arms to defend their rights when invaded, since that is an essential right (meaning a right which is not ceded to government). Likewise the particular states have a right to be armed, and the general government could not invade that right by granting an exemption to pacifists since the state governments had not ceded the right "of declaring who should bear arms" to Congress.

Without a doubt, Sherman was against Congress granting exemptions to pacifists. But there is no suggestion that Sherman thought by that statement that a state could deny a private citizen the right to have arms -in fact he stated very plainly that "private citizens" have a right to be armed.
3.12.2008 10:25pm