Originalism in a Digital Age: An Inquiry into the Right to Bear Arms

• Published in: Journal of the early Republic Vol. 29; no. 4; pp. 585 - 606
• Main Author: Kozuskanich, Nathan
• Format: Journal Article
• Language: English
• Published: Philadelphia University of Pennsylvania Press 01.12.2009
• Subjects: Archives & records; Armed forces; Constitutional law; Debates; Firearm laws & regulations; Firearms; Guns; Historical text analysis; Information Age; Library collections; Military defense; Military service; Militias; Political debate; Right to bear arms; Second Amendment; War; Word meaning; Washington DC; United States > US
• ISSN: 0275-1275; 1553-0620; 1553-0620
• DOI: 10.1353/jer.0.0107

The recent Washington, D.C., gun case, District of Columbia v. Heller, brought the question of the meaning of the Second Amendment before the U.S. Supreme Court for the first time in almost 70 years. Both the majority and minority opinions attempt to lay claim to original intent, with history playing a leading role. Both opinions, and particularly Scalia's majority opinion, lack a coherent historical methodology. This article explores a new avenue of research: comprehensive digital archives with keyword search capabilities. Such archives introduce thousands of new documents to the debate and help scholars to recover the usage and meaning of key constitutional phrases like "bear arms." These digital databases reveal the limitations of the individual and collective rights paradigms that have dominated debate over the Second Amendment, because both are unable to account for the civic responsibility of owning and bearing arms that is evident in the documents. Understanding that "bearing arms" meant fulfilling one's duty as a citizen to the common defense can account for personal firearm ownership while realizing that those arms were subject to robust regulation. Although digital research cannot be a substitute for traditional historical methods, it can give legal scholars access to a wealth of resources that have been relatively unused in constitutional research. Indeed, an historical focus on context and change over time can complement the legal focus on structure and precedent. Rather than move away from context, as the Heller decision encourages, digital research can restore originalist scholarship to its historical roots.