Constitutional Law

New article by Kopel and Cramer

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, forthcoming in Widener Law Journal.

Gist of it is a critique of Nathan Kozuskanich's claims that the right to arms guarantee in the 1776 PA Constitution -- "the people have a right to bear arms for the defence of themselves and the state" --actually has a secret meaning relating to Quaker objections to military service.

Wonder if I could coin a term -- "constitutional conspiracy theory" -- to describe all these collective-rights theories that take multiple references which are most naturally read to describe an individual right, and by referring to one or another historical event (sometimes isolated ones 20 years before), argue that that incident gives a meaning to the reference entirely at odds with its words, its history, and the speaker's background.

I don't recall seeing claims like this in any other constitutional context. Leonard Levy and Ed Meese debated the outer edges of the Establishment Clause -- are government policies that favor all religions an establishment or not? -- without either claiming that due to some event in 1760, "shall make no law" had a secret meaning (which no one bothered to record or reference) amounting "may make some laws," or that, say, "establishment of religion" was intended, sub silentio, to forbid only chartering of new churches, not handing public money to a specific church.

Full post as published by Of Arms and the Law on December 02, 2009 (boomark / email).