Volume 3, Issue 4
Originalism in a Digital Age: An Inquiry into the Right to Bear Arms
Nathan Kozuskanich, Department of History, Nipissing University
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. While not every single source uncovered from these digital archives uses "bear arms" in an explicitly military sense, the handful that do not are merely ambiguous; at most, they tend to show that "bear arms" on rare occasion was paired with additional language to mean, idiosyncratically, "carry guns." Although self-defense was widely accepted as a natural right, none of the sources in these databases make the crucial link between that right and a constitutional right to bear arms.
Such findings are utterly at odds with the Court's opinion 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."6 Scalia claims that the phrase "bear arms" only had an unequivocally military meaning "when followed by the preposition 'against,'" and that "every example given by the petitioner's amici for the idiomatic meaning of 'bear arms' from the founding period either includes the preposition 'against' or is not clearly idiomatic."7 If Scalia had read my article, cited in the Petitioner's reply brief, he would see that this statement is patently untrue.8 "Bear arms" was consistently employed in a military sense even without using the preposition against. Consider the many pacifist petitions that appeared in the American press before, during and after the Revolution. In Quaker Pennsylvania, pacifists were disturbed that many in the province were demanding that every man "should be alike obliged to bear arms, and be subject to military discipline."9 The use of "bear arms" here was deliberate, and obviously connoted participation in an organized militia unit. Indeed, Pennsylvania's own hunting laws show that "bear" and "carry" were not synonymous, as Scalia claims.10 The province's "Act to Prevent the Killing of Deer Out of Season" forbade any person "to carry a gun or hunt on any improved or enclosed land" without the permission of the owner.11 While Quakers owned and carried arms and used them to kill food, they refused to bear them. Recognizing this, James Madison himself proposed an exemption from military duty in his original formulation of the Second Amendment, arguing that no one had ever been able "to make [the Quakers] bear arms," and so Congress would be wise to "make a virtue of necessity and grant them the privilege."12
Scalia's interpretation of "bear arms" becomes even more absurd if we consider the phrase's use in colonial and state militia laws, for it would mean that early lawmakers used "bear arms" in either a non-military or a non-idiomatic sense. For example, Georgia's 1765 "Act for Better Ordering the Militia of This Province" demanded that "every person liable to appear and bear arms at any muster . . . shall constantly keep and bring with him to such muster . . . one gun or musket fit for service."13 Needless to say, concern for the common safety was heightened in Georgia because of the slave population. In the same year the Assembly passed an act mandating that white men "be obliged to carry firearms" in places of public worship. The law was very explicit in restricting such carrying of arms to "every white male inhabitant . . . who is or shall be liable to bear arms in the militia."14 The distinction between "carry" and "bear" is quite clear and shows that the two terms were not synonymous. While men could carry arms in church, they could not be said to be bearing them since that was reserved for militia service.
It seems curious that if the Founders sought to enshrine a constitutional right to bear arms for personal self-defense, Congress and the larger American public never bothered to discuss it.15 It is also curious that Scalia, a supposed originalist, is so keen on dismissing the military context that shaped the discussion of arms from the 1760s through to the ratification of the Bill of Rights.16 Individual rights scholars have made the same mistake, claiming that the relative absence of evidence of an individual construction of bear arms is not evidence of an absence of a concern for personal self-defense.17 While some areas of historical research are indeed fraught with a paucity of sources, to ignore the preponderance of evidence supporting a military reading of the phrase "bear arms" is sheer ideological folly.
1 Majority Opinion, District of Columbia v. Dick Anthony Heller, No. 07-290, 26 June 2008, 3. Available at http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf.
2 Nathan Kozuskanich, "Originalism, History, and the Second Amendment: What Did Bearing Arms Really Mean to the Founders?" 10 University of Pennsylvania Journal of Constitutional Law 413 (2008).
3 1763-1791: from the end of the French and Indian War to the ratification of the Bill of Rights. The phrase "bear arms" was searched in all the text from documents printed between and including the years 1763 and 1791. Hits returned contain the exact phrase "bear arms" and not any variations (i.e., bearing arms, bears arms).
4 It should be noted that foreign news that used the phrase "bear arms" always discussed war and troop movements, further buttressing a military reading of "bear arms." For example, the 7 February 1763 issue of Green & Russell's Boston Post-Boy & Advertiser reported that the "King of Prussia is impressing all the men in Saxony that are able to bear arms." See p. 2.
5 A search of all text for the exact phrase "bear arms" returned 502 hits. By "military construction" and "military meaning" I mean that the phrase 'bear arms' appears in an obvious discussion of the militia (and citizens' civic obligation to participate in the militia), the army, or people banding together to protect the community.
6 Majority Opinion, 1.
7 Majority Opinion, 12-13.
8 Reply Brief for Petitioners, District of Columbia v. Dick Anthony Heller, No, 07-290, 7. Available at http://www.scotusblog.com/wp/wp-content/uploads/2008/03/07-290rb.pdf.
9To the Freeholders and Other Electors for the City and County of Philadelphia, and Counties of Chester and Bucks (Philadelphia: Franklin and Hall, 1764).
10 Scalia erroneously asserts that "at the time of the founding, as now, to 'bear' meant to 'carry.' See p. 10. To separate the words of the phrase "bear arms" is a mistake, since that particular phrase had a specific meaning.
11A Collection of all the Laws of the Province of Pennsylvania: Now in Force (Philadelphia: Benjamin Franklin, 1742), 198-99.
12 27 December 1790, The General Advertiser, 2.
13Acts Passed by the General Assembly of Georgia (Savannah: James Johnston, 1765), 35.
14Acts Passed by the General Assembly of Georgia (Savannah: James Johnston, 1766), 21-21. When the act was due to expire in 1770, the Assembly enacted a new law, again restricting the carry of arms to those men "liable to bear arms in the militia." See Acts Passed by the General Assembly of Georgia (Savannah: James Johnston, 1770), 1.
15 This is not to say that people of the Founding Era did not believe in a natural right to self defense, but that no source in the databases makes the link between that right and a constitutional right to bear arms.
16 Scalia has little use for context, arguing that the "Petitioners justify their limitation of 'bear arms' to the military context by pointing out the unremarkable fact that it was often used in that context—the same mistake they made with respect to "keep arms." It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners' inquiry." See Majority Opinion, 13.
17 The most recent example of this is Clayton Cramer and Joseph Olson, "What Did 'Bear Arms' Mean in the Second Amendment?" 6 Georgetown Journal of Law & Public Policy (2008) (forthcoming). Available at http://works.bepress.com/joseph_olson/1/. Cramer and Olson argue that since the phrase "bear arms" was not used exclusively in a military sense, the individual rights construction controls the meaning of the Second Amendment. It should be noted that they ignore all Congressional records and cannot provide any piece of evidence that comes from the colonies or states before 1789.