Nathan Kozuskanich: How a search of Early Republic newspapers turned up evidence relevant to the Supreme Court gun case





The quest for original intent has dominated Second Amendment scholarship, a trend further solidified in the Supreme Court’s recent gun case, District of Columbia v. Heller. In the majority opinion, Justice Scalia insisted that the “normal meaning” of the words of the Second Amendment must be used to understand the Framers’ intent, not “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”1 But how can scholars (and justices, for that matter) determine the normal meaning of words? How can we divine what the Founders meant when they recognized the right of the people to keep and bear arms?

The debate over the Second Amendment has largely revolved around whether the right to bear arms protects an individual right to self defense or a collective right to keep arms for service in a militia. To date, most scholarship has sampled select quotations from a relatively narrow set of sources to determine the meaning of key phrases like “bear arms.” Readex has now made it possible to search the historical record in a systematic and comprehensive way. Indeed, digital archives with keyword search capabilities can help us understand the meaning of historical phrases with relative certainty.

My research into the Second Amendment, published in the University of Pennsylvania Journal of Constitutional Law, uses keyword searching to access the considerable volume of material in the Readex digital archives.2 The Early American Imprints series contains over 15,500 documents from the crucial period of 1763 to 1791, 273 of which contain the phrase “bear arms.”3 If we discard the many reprints of the Bill of Rights, all quotations of the text of the Second Amendment in Congressional debate, irrelevant foreign news, reprints of the Declaration of Independence and all repeated or similar articles, 111 hits remain, of which only two do not use the phrase to explicitly connote a military meaning.4 Using the same method of sorting results from the 132 papers published from 1763 to 1791, the Early American Newspapers database returns 115 relevant hits, with all but five using a military construction of “bear arms.”5

The sources prove that Americans consistently employed “bear arms” in a military sense in times of peace and in times of war. The results show that the militia and the common defense was a perennial concern often discussed in pamphlets and newspapers, unlike the individual right to self-defense. ...

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