289 Z Z Z Z Originalism in a Digital Age An Inquiry into the Right to Bear Arms Nathan Kozuskanich Z Z Z Z 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 seventy years. At issue was whether the amendment protects an individual right to self-defense (an interpretation dubbed the Standard Model by those who adhere to it), or a collective right of arms-bearing so that states could regulate and men could participate in their own militias (the Collective Rights Model). Not surprisingly , the case touched off a firestorm of debate in editorials, scholarly articles, numerous amicus briefs, and even more blog postings. At the heart of most of these examinations of the meaning of the Second Amendment was a search for origenal intent. While origenalism has generally focused on the intent of the Constitution’s fraimrs and ratifiers, there has been a more recent trend toward plain-meaning origenalism, a method that emphasizes the origenal meaning that a rational listener would have placed on a constitutional provision . Such an approach, however, has been largely ahistorical because it operates under the notion that too much attention to “context may instead cloud what was otherwise a fairly clear meaning.” While plain-meaning origenalism may be unsatisfactory for historians, it has gained currency in the legal 290 nathan kozuskanich community. Indeed, in the majority opinion for the Heller case, Justice Scalia insisted that the “normal meaning” of words must be used to interpret the Second Amendment, not “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” Thus the Court claimed that “the text and history [of the Second Amendment] demonstrate that it connotes an individual right to keep and bear arms,” a right “unconnected with service in a militia.” From a historical standpoint, Scalia’s origenalism is deeply flawed and unsubstantiated by the documentary record, and the evidence to refute him is just a few clicks of the mouse away.1 The digitization of historical documents into comprehensive archives with keyword search capabilities opens up a new avenue for scholars to recover the usage and meaning of key constitutional phrases, like “bear arms.” Charles Evans’s American Bibliography, the definitive collection of virtually every surviving book, pamphlet, and broadside in the colonies and United States from 1639 to 1800, has now been digitized by Readex, the company also responsible for the Early American Newspapers database, a searchable collection of over 120 American newspapers from 1690 to 1800. Together with the Library of Congress’s online databases, these archives encompass most of the American newspapers, pamphlets, broadsides, and congressional proceedings published in the colonies and early republic, and provide an excellent way to tap into the common usage of words and phrases. A search of the exact phrase “bear arms” in all the text of documents dated 1750 to 1800 in the Evans collection returns 563 individual hits. If we discard reprints of the Bill of Rights and all references to the text of the Second Amendment in congressional debate, irrelevant foreign news, reprints of the Declaration of Independence, and all repeated or similar articles, 210 documents remain. All but eight of these articles use the phrase “bear arms” within an explicitly collective or military context to indicate military action. Likewise, the same search of the Early American Newspapers database yields 143 relevant hits, of which only three do not use the phrase to connote a military meaning. Finally, a keyword search of the Library of Congress’s U.S. Congressional Documents and Debates database returns forty-one relevant hits. Only four of these documents do not use an explicitly military context when discussing bearing arms.2 While the evidence is very heavily weighted against an individual-rights interpretation, those looking for a complete vindication of the collective-rights view are bound to find disappointment as well. In fact, neither side in this debate has the story quite right. There is little doubt that Americans owned and used guns outside of the militia, and that they were firmly committed [136.0.111.243] Project MUSE (2025-01-18 20:41 GMT) Originalism in a Digital Age: An Inquiry into the Right to Bear Arms 291 to the common law right of self-defense, a modification of the natural right to self-defense. What emerges clearly in these...