Legal Commentary

New article on the right to arms in early Pennsylvania

By David Kopel

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19  Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract:

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich?s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich?s claims about constitutional language and history.

Part II investigates Kozuskanich?s analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the  Quaker?s protests against being forced to ?bear arms? in the  militia demonstrate that ?bear arms? is exclusively a military term; therefore the ?right to keep and bear arms? is only about owning and carrying militia weapons.

But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich?s citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists? arms.

Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.

Full post as published by The Volokh Conspiracy on December 01, 2009 (boomark / email).