Obfuscating Clear Language

The Petitioner's Reply brief in the D.C. case cites a new law review article by Nathan Kozuskanich in the University of Pennsylvania's Journal of Constitutional Law, clearly intended to blunt the evidence that Joe Olson and I found that "bear arms" was widely used in both a military and a civilian context. Most importantly, we demonstrated that U.S. Supreme Court Justice James Wilson, who was also the primary author of the 1790 Pennsylvania Constitution, understood the "bear arms" provision of that Constitution as protecting an individual right to be armed for self-defense. This demolished Kozuskanich's already weak claim in Rutgers Law Journal that the phrase referred only to a collective defense of the community, as I discuss here.

This new Journal of Constitutional Law paper by Kozuskanich is, if anything, even weaker. It was a rush job, and it shows--especially because it contradicts its own claims in some places.

First of all, let me point out that the header of each page says:

DRAFT 03/03/2008 CITE ONLY WITH PERMISSION

In an academic setting, this means, "I may still have some mistakes here--don't cite it yet, because I may still be fixing things here and there." If this were simply an academic question, there's no argument about what to do--you only cite this draft with permission. But the Petitioner's Reply brief has cited it, and obviously, Kozuskanich has no intention of allowing anyone to cite it to point out what a shoddy and dishonest piece of work it is. As I have already pointed out here, Kozuskanich has engaged in what I would argue is academic fraud by citing Bellesiles's Arming America concerning gun scarcity in early America--without acknowledging that the claim in question has been demonstrated to be fraudulent. Indeed, the probate data that underlay Bellesiles's claim is part of why he "resigned" a tenured position at Emory University and Columbia University revoked the Bancroft Prize awarded for Arming America.

What are some of the serious problems with Kozuskanich's new work?

1. After a long discussion of how just about every reference in contemporary documents is to "bear arms" in the sense of collective defense (i.e., as part of a militia), on p. 431 Kozuskanich quotes Representative Sherman 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.

Kozuskanich is using this as evidence that lends

credence to a civic interpretation of the right to bear arms. Bearing arms was a privilege, a right, and a duty, and one that was integral to the survival of the militia.

Yet Sherman was not saying that the right to bear arms was limited to militia duty; he drew an analogy between the right of "every citizen" (singular, you notice) to be armed to protect "his liberty or property" and the right of "particular states, like private citizens" to be armed to defend the rights of the state.

That phrase "by whomsoever made" isn't limited to enemies of the State. It could even include "every citizen" defending his liberty or property from the State itself, under certain dire circumstances.

2. Kozuskanich acknowledges on p. 437 that James Wilson used "bear arms" in the 1790 Pennsylvania Constitution in an individual sense, but argues that the meaning of the phrase "changed in subtle ways" between 1776 and 1790. Yet on pp. 439-441, he makes the argument that Wilson really meant it to only be used in a militia sense. I guess we should ignore Wilson's own direct statement quoting the Pennsylvania Constitution's "bear arms" clause as protecting an individual right for self-defense. (See here for more details.)

3. Kozuskanich argues on pp. 441-3 that "self-defence" was more commonly used with respect to states in that period, and therefore that is the meaning that should be we should ascribe to the phrase--not individual self-defense. Yet he does acknowledge that there are some occasions when the phrase is used to refer to individual self-defense. Could perhaps the reason that the phrase is commonly used in the Revolutionary period to refer to the States and the United States fighting against Britain is because this was the major issue confronting Americans at the time?

There is certainly no shortage of references to self-defense in the period 1760 to 1800. For example, William Paley's The Principles of Moral and Political Philosophy, 12th ed. (London: R. Faulder, 1799), 2:3, is devoted to a discussion of self-defense in a strictly individual sense of the word. Ditto, Sir Geoffrey Gilbert's The Law of Evidence (London: A. Strahan and W. Woodfall, 1791), 2:736. Blackstone's Commentaries on the Laws of England, 13th ed. (London: A. Strahan, 1800), 3:4 also clearly states that self-defense is an individual right:

Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

4. On p.443 Kozuskanich points to a case where a Dr. James Reynolds was tried for "assault with intent to commit murder" and that neither prosecution nor defense "considered Reynolds's possession or use of his gun to be a matter of constitutional law." Well, yes, because he wasn't charged with possession of a gun, but "assault with intent to commit murder." The prosecution quoted Blackstone to the effect that you couldn't use deadly force if you had the opportunity to escape. And this proves what? The right to bear arms for self-defense didn't change the requirement to avoid using deadly force if you had that option.

What is significant is that Reynolds knew full well that carrying a pistol was lawful. From John D. Lawson, ed., American State Trials: A Collection of the Important and Interesting Criminal Trials... (St. Louis: F. H. Thomas Law Book Co., 1917), 7:691:

In this situation, Dr. Reynolds did not lose sight of prudence; he asked advice how he ought to act in such a singular case, and he was advised to arm himself; he said he would arm himself with a pistol; but the gentleman told him that a pistol was an uncertain defense, it was liable to so many accidents; a dirk was a more secure weapon of defense; Dr. Reynolds, however, contented himself with carrying a pistol. And in this he was justified by every law, human and divine. [emphasis added]

Kozuskanich uses the jury's acquittal of Reynolds (who drew his pistol only after an attempt was made by a mob to prevent him from speaking) to argue that:

The case clearly demonstrates that using a gun in self defense was legally different from bearing arms in "defense of themselves and the state."

But it demonstrates nothing of the sort. The only legal question in this case of relevance to being armed was whether Reynolds had threatened to use deadly force when he had the option of retreating. Reynolds' right to be armed was never in dispute. Unsurprisingly, neither side had any reason to raise the Pennsylvania Constitution's arms guarantee.

5. I know that Kozuskanich has read the paper by Joe Olson and myself that gives a large number of non-military uses of "bear arms." I know this because Kozuskanich attempted (unsuccessfully) to get a paper published in the same issue of Georgetown Journal of Law and Public Policy that was publishing our paper. Yet the only examples that Kozuskanich mentions are the Pennsylvania Antifederalists, and James Wilson. The alternative would be to try and explain each and every one of the examples of "bear arms" in a civilian sense that we found. This complete failure to address the very large number of examples is effectively Kozuskanich putting his fingers in his ears and screaming, "I can't hear you" in the hopes that our many examples will go away.