In District of Columbia v. Heller, the United States Supreme Court adopted original public understanding as an interpretative tool. While this approach has the virtue of establishing meaning independent of a court’s personal values and preferences, this article explores some hazards which courts should try to avoid. First, one must resist the temptation to see historians as invariably objective; some are apt to push a personal agenda, or get a reputation as a “debunker,” at the cost of distorting, overlooking, or even inventing the historical record. Historical studies of this type have misled the Ninth Circuit, and a dissent in Heller. Second, new research methodologies can have serious and inherent errors. The interface of law and history can be difficult enough, but the interface of law, history, and optical character recognition software can pose some unique risks.
Hardy, David T.
"Originalism and Its Tools: A Few Caveats,"
ConLawNOW: Vol. 1:
1, Article 3.
Available at: https://ideaexchange.uakron.edu/conlawnow/vol1/iss1/3