XIII. That the people have a right to bear arms for the defence of themselves and the state;protected not an individual right for self-defense, but an obligation to serve in the militia. This has been a recurring claim of the collective rights crowd, by the way--that "bear arms" refers not to an individual right, but only a collective or militia right.
This seemed rather strange to me, for two reasons. First of all, because the language of Art. XIII parallels that of other provisions of that constitution that are generally understood as individual:
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.Notice what all of these clauses protecting individual rights have in common with Art. XIII? The same opening: "That the people have a right...."
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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.
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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.
Even worse, if Art. XIII was supposed to protect not an individual right--but an individual duty to militia service--why is Art. VIII in the 1776 Pennsylvania Constitution?
VIII. 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, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.If Art. XIII created an obligation to militia duty, then why was Art. VIII (which explicitly does obligate "every member of society" to either pay taxes or serve in person) in there as well? Which is more likely? That Art. XIII duplicates Art. VIII, or that Art. XIII means what it seems to mean?
Secondly, I also pointed out to Kozuskanich that there were a lot of contemporary uses of "bear arms" to refer to the carrying of arms in an individual, non-military sense. I pointed out to Kozuskanich that James Wilson, U.S. Supreme Court Associate Justice, and the primary author of Pennsylvania's 1790 Constitution, gave a speech in which he used the similar language in a way that is unmistakably individual:
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.”
Anyway, it appears that Kozuskanich's Rutgers Law Journal article came out some months back, but I have just found it and read it. It is a very detailed and interesting discussion of the struggles between the Quakers and non-Quakers of Pennsylvania over whether to have a Colonial militia or not--but as evidence to support Kozuskanich's claims about "bear arms," it is embarrassingly bad.
1. He cites Bellesiles' Arming America in note 38 as a source for the claim that guns were pretty scarce. He then tells the reader, "For more detailed studies of gun numbers that contradict Bellesiles" and cites the Lindgren & Heather paper in William and Mary Law Review, and Randolph Roth's William and Mary Quarterly paper.
At no point does Kozuskanich acknowledge that Bellesiles was not simply wrong, but a fraud. Bellesiles's own university investigated the allegations--and issued a report so critical that Bellesiles resigned a tenured position. Columbia University had given Bellesiles the Bancroft Prize for Arming America--and then revoked it (something that had never happened before) because of falsifications of the probate data that underlay Bellesiles's claim about gun scarcity. See this Robert F. Worth article in the December 14, 2002 New York Times:
Columbia University said yesterday that its trustees had voted to rescind the Bancroft Prize awarded last year to a book by an Emory University historian, citing accusations of scholarly misconduct.To cite Bellesiles's claim with such an inadequate discussion seems like something that might qualify as academic fraud. It would be like citing something out of the Hitler Diaries, and then mentioning that there was some argument about their veracity.
The prize had been awarded to Michael A. Bellesiles for ''Arming America: The Origins of a National Gun Culture,'' published by Alfred A. Knopf in 2000.
This is the first revocation of a Bancroft Prize since it was first awarded in 1948.
The prize is awarded for works in American history ''of enduring worth and impeccable scholarship that make a major contribution to our understanding of the American past.''
The trustees have also asked that the $4,000 prize money be returned, a university spokeswoman said.
The book, which argued that only a small percentage of people owned working firearms in colonial America, was hailed as a groundbreaking work after its publication. Advocates of gun rights criticized the book, seeing it as an effort to suggest that the Second Amendment right to bear arms did not apply to individuals.
But other scholars who tried to replicate the research of Professor Bellesiles soon began to make accusations of errors and possible misconduct.
Professor Bellesiles resigned from Emory in October after an independent panel of scholars strongly criticized his work. Their 40-page report accused him of ''unprofessional and misleading work'' and said that at times it ''does move into the realm of falsification.''
2. Kozuskanich on pp. 9-10 makes a big point of the conflict between the Quaker opposition to state-sanctioned violence and the back country crowd of Pennsylvania--and then on pp. 11-12 observes that Quakers actually formed an armed militia in response to the Paxton Boys. This raises some serious questions about how serious the Quaker opposition to state-sanctioned violence was. Benjamin Franklin, for example, was skeptical that the Quaker opposition was fundamentally moral in nature. As Franklin's autobiography observed:
These public quarrels were all at bottom owing to the proprietaries, our hereditary governors, who, when any expense was to be incurred for the defense of their province, with incredible meanness instructed their deputies to pass no act for levying the necessary taxes, unless their vast estates were in the same act expressly excused.... [Benjamin Franklin, The Autobiography of Benjamin Franklin (Chicago: Lakeside Press, 1915), p. 204]Perhaps Franklin was being unfair about this. But when Kozuskanich observes on pp. 11-12 that Quakers actually shouldered muskets when the Paxton Boys, having slaughtered Indians out on the frontier, were now ready to cause trouble in Philadelphia--you would think it might raise some questions about whether the Quakers were really as hostile to state-sponsored violence as Kozuskanich says--or just had very flexible principles.
3. On p. 12, Kozuskanich explains that
In language that would be echoed in the 1776 Declaration of Rights, the [Paxton Boys] Apology explained that “the far greater part of our Assembly were Quakers, some of whom made light of our sufferings & plead conscience, so that they could neither take Arms in defense of themselves or their country.”He argues that this language would be echoed in the 1776 Constitution's clause--as though this was evidence that the phrase "a right to bear arms for the defence of themselves and the state" was necessarily limited to a collective purpose. This fails for two entirely different reasons.
First of all, the Paxton Boys took their murderous actions against the Conestoga Indians without governmental approval--indeed, contrary to the government:
The Canestoga Indians had lived in peace for more than a century, in the neighborhood of Lancaster. Their number did not exceed forty. Against these unoffending descendants of the first friends of the famous William Penn, the Paxton boys first directed their more than savage vengeance. Fifty-seven of them, in military array, poured into their little village and instantly murdered all whom they found at home, to the- number of fourteen men, women and children. Those of them who did not happen to be at home at the massacre, were lodged in the jail of Lancaster, for safety. But alas ! This precaution was unavailing. The Paxton boys broke open the jail door and murdered the whole of them, in number from fifteen to twenty. [Joseph Doddrige, Alfred Williams, ed., Notes on the Settlement and Indian Wars of the Western Parts of Virginia and Pennsylvania, From 1763 to 1783, Inclusive (Albany, N.Y.: Joel Munsell, 1876), 225]Secondly, the use of "or" in this phrase indicates that the Paxton Boys thought that the Quakers were distinguishing "in defense of themselves" from "their country." The Paxton Boys thought the Quakers were unable to defend "themselves" or "their country." The first of these is individual; the second is collective.
4. On p. 24, Kozuskanich baldly asserts that Art. XIII of the 1776 Const. "guaranteed the right to bear arms for community safety" but provides absolutely no evidence that the right was limited to that purpose. Art. VIII clearly does define a duty that every Pennsylvanian had for the collective defense, but that's a long ways from Art. XIII. The only actual evidence that Kozuskanich asserts to back up his claim about what the 1776 Pennsylvania Constitutional Convention intended is entirely about Art. VIII. Kozuskanich has not a single piece of evidence--even weak evidence--that the Convention believed that Art. XIII protected only a collective right.
Kozuskanich doesn't even really try to defend his claim. He makes an assertion, and presents absolutely no evidence to defend it. At best, Kozuskanich's evidence shows that the hot topic of the 1760s and 1770s was collective defense. This doesn't mean anything, simply because the right of self-defense was not under attack.
Let's use an analogy. You won't find anyone today arguing for the right to attend the church of their choice today. To the extent that questions of religious worship are topics of discussion, they are arguments about government and church entanglement. This lack of discussion doesn't mean that we do not recognize a right to worship, or not worship, at the religious institution of our choice. It is simply and utterly unquestioned that we have a right to worship, or not worship.
Now, imagine if a new Constitutional Convention were held in 2010. The Convention adopts a religious freedom provision that clarified the religious entanglement issue with language such as:
The government may encourage or assist any religious body engaged in educational or social welfare work, but governmental benefits shall be provided to all religious institutions on an equal basis, and no person's religious beliefs shall be a basis for preference or punishment.(Think of this as breaking the prongs off the Lemon test.) The Convention adopts no language about the freedom to pick your church. By Kozuskanich's argument, the lack of a vigorous debate in the period 2000-2010 about freedom to worship as you please would be evidence that religious bodies were limited to educational or social welfare work--and nothing else.
Kozuskanich is positing his argument on the absence of discussion of an individual right to bear arms in the period 1750-1776. The absence of evidence is not the evidence of absence.
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