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ARMA VIRUMQUE

Arma Virumque cano. It is time to talk of men and arms.

Readers of this blog will know that I have been a strong critic of America's culture of autonomy and antagonism toward government. In my opinion, the country's manifold socio-economic problems will not be solved unless and until Americans make some very fundamental changes to their way of thinking and being -- to their cosmology in fact. Americans need to learn what it means to be a social being. They need to think less of individual rights and more of obligations -- not self-chosen ones but naturally ordained, obligatory obligations.

But to everything there is a season and a purpose. America's culture of autonomy and individuality also reflects a fact of nature -- one that was brought to the fore by the vast natural expanse of the American Acadia in which men were very much on their own.

The paradoxical relationship between the one and the many -- between individual-ism and social-ism -- is one of the fundamental quandries of all existence. It was for all time laid out in Plato's Parmenides; and, as readers of that exhausting dialogue will recall, there is no answer. Is the one, many? Yes, maybe. But then again, it may also be said that the many are one. Does the one derive its identity from the many or do the many share in the nature of the one?

I would not pretend to have an answer. What I can say is that, although wolves live in packs, every wolf has a nature-given right to howl at the moon as he best sees fit, to sniff where he wonts, and to sink his fangs into food or into whatever would make him food. These two principles were enshrined in the First and Second amendments, which embody the most essential, and indeed pre-social, freedoms of men.

The right to howl, not only your “conscience” but your desires and hates, fears and joys; the right to provide for yourself by killing and to protect yourself from being killed or enslaved -- if these be not rights of mind and body, what rights of anything else can there be?

The progression, structure and substance of the Bill of Rights is a profound existential and political statement. Those who would characterize parts of it that they don't like as mere conventions of a particular time and place misunderstand the custom, usage and collective wisdom behind the document. They would set up their own objects of desire as overriding the nation's founding compact. In this regard, today's upper middle class social reformists, affectionately known as “liberals,” have made it clear that they intend to inflict the death of a thousand cuts on both the First and Second Amendments in the name safety and social harmony. They misunderstand both history and the Constitution and need to be opposed. But they need to be opposed for the right reasons and not by some contravention that buys into the same error of substituting idiocyncracy for tradition. The hope of this cursory and surely inadquate review is to remove some the accumulated grime from our perception of the Constitution and restore it to its more vivid colours.

As the plain-speaking legal historian, Theodore F.T. Plucknett, reminded us, almost a century ago,

Out of all the confusion and disaster of the middle ages there arose the unanimous cry for law, which should be divine in its origin, supreme in its authority, rendering to every man his due. . . . But Utopias belong to modern history; the medieval man was above all a man of action, and out of the night of the dark ages he began to build the fabric of law. . . . It was Machiavelli himself who gave us the word “state” and filled it with the content which we now associate with it. Instead of the medieval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality. . . . [A] double standard introduces a sort of polytheism utterly repugnant to medieval thought. The issue of this conflict is perhaps still uncertain, but medieval thought is today fighting hard for the cause of law against the amoral, irresponsible State. It was medievalists in England armed with Bracton and the Year Books who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke upon Littleton before their eyes. Could anyting be more medieval the he idea of due process? (Plucknett, A Concise History of the Common Law, (1929) [5th Ed. Little, Brown & Co. (1956) Ch. 5, p. 40.)

The Constitution is a medieval document and it is to those times that we must, in short order, return. A proper understanding of the Second Amendment cannot be based on textual analysis alone. The words in the amendment and the words of English statutes from which it flowed must be placed into the flesh of history.

The Word & Natural Law

Most people are taught to think of the Bill of Rights as a “declaration” of rights. Even judges have made this mistake. The Bill, which is almost entirely framed in the negative, is a reservation of rights. It does not say: Thou shalt have but rather The government shall not. Strictly speaking, we cannot find our rights in the document. But if the Bill does not positively grant rights, who did and where are they to be found? They can only be found in antecedent history, custom and usage which the Bill of Rights reflects

The First Amendment.

There are several sayings or statements of an idea that I find myself returning to repeatedly in life. One of them is Aristotle's discussion of language in Book I of his treatise on Politics. Animals communicate, Aristotle tells us, and furthermore they live in societies. What distinguishes men from animals is our capacity for articulate speech; for it is words “which enable us to distinguish the just from the unjust; the expedient from the inexpedient.”

The modesty of the statement makes it easy to overlook its profundity. Of course words allow us to express our faith, our ideologies, our analytical sciences, our epistomologies. But more primarily, words are what enable us to decide whether or not it is expedient to even live together and, if so, how to order our society in the right way or in a way that is at least convenient. We could not have a right without the existence of a society to recognize and guarantee that right, but we could not have a society at all without the free use of words to bring us together. Of course, the First Amendment comes first in the Bill of Rights.

The Second Amendment.

And just as obviously, having come together as a society, the next attribute in sequence is the ability to defend what has been conjoined. But just as the right of free speech stands at the cusp between the individual and the social so too the right of self defence. It was the Anglo-American understanding that these rights did not simply follow from and after the social compact but where also in a sense precursors to that compact.

Although imagining pre-history is to some extent a speculative endeavour, it is a speculation grounded in solid facts from which reasonable inferences can be drawn. There can be little doubt that the earliest hominids considered the possession of weapons as integral to survival and hence to the notion of freedom.

What was that notion? Very simply the capability to do what one thinks is necessary, just or convenient to one's circumstances. When attacked by a wild beast a naked man has one of two choices: to run for dear life (and hopefully climb up a tree before it is too late) or to turn, stand and fight the beast. That may not be a very poetical notion of freedom but it is a basic one.

The tiger has its claws, the wolf its fangs, the bird has its wings, the cricket has his legs but what has man? A more helpless, defenceless creature could not have been designed by a Loving God.

But God did give man a peculiar mind; a mind that was able to leap -- cricket-like -- to imagined conclusions. It may be that the first tool was a stone used to smash nuts but at least one nut-smasher soon jumped to the conclusion that a stone could be used to smash a skull. From stone, to club, to sharpened stick, to spear, to arrow, to knife, early man began to fashion tools that were in part or fully weapons. These weapons enlarged man's freedom of action and, in doing so, widened the choices available either to provide for or to protect himself. A free man was an armed man.

To say as much is not some fantasmagorical Robinsonade. Among the items found with Ötzi the Iceman (3,350 B.C.) were were a chert-bladed dagger, an endscraper, a borer, stone arrow tips with wooden shafts and (the latest in technology) a copper axe with a yew handle. Clearly the line between tool and weapon was equivocal but just as clearly Ötzi was armed. He was also murdered.

There may be those who will sneer that there is a long distance between 3,350 B.C. and 1750 A.D.) Not so in qualitative terms. The conditions faced by many of the Colonists, particulary upon first arrival and later on in the western territories, were very much like those encompassing Ötzi. Individual frontiersmen and small bands of settlers did not beat a path across the wilderness with pilgrims' staffs, opening their hearts to Oneness with Nature. Rather, because they were very much at one with nature, they were armed.

Nor can it seriously be argued that in Greco-Roman times the possession of weapons of war did not mark the freeman. In the earliest battles of the Roman Republic, the role of common freemen was to tag along after mounted knights, carrying pitchforks, axes, spears and whatever they had at hand. The knights would engage their opposites with shield and sword while their respective crowds would engage in a general melée of mayhem. The fact that arms (of whatever sort and kind) were used upon being “called up” did not mean that they were not kept for general purposes when not so called.

Much is made by opponents of the Second Amendment from the fact that the use of arms was “tied to” some form of military service. What this anachronistic brilliance overlooks is that military service was conceived of as the collective assembling of free and armed men -- it being assumed that the free men would answer the call, with their arms and knowing how to use them.

It is true that in certain militarized societies, like Sparta, the keeping of arms was not individualized but that was only because nothing in Sparta was individualized. Following the Spartan model Plato's utopian Republic forbade weapons to all but the warrior cast. However, in free societies like Athens or the Roman Republic a citizen was one who was allowed to and did possess arms. Thus, Aristotle wrote in the Politics the that ownership of weapons was necessary for true citizenship and participation in the political system: “ ... thirdly, there must be arms, for the members of a community have need of them, and in their own hands, too, in order to maintain authority both against disobedient subjects and against external assailants." (Op. cit., Book 7, ch. VIII.) As I shall trace, there is a direct line from Aristotle, to the Statute of Arms (1181), to the Second Amendment.

Opponents of the Second Amendment will also cite the many Athenian laws which sought to regulate the bearing of arms. Thucydides does indeed state that the Athenians were among the first to establish laws against the possession of arms in public places. ("History of the Peloponnesian War" Book 1) Legislation in Athens forbade the carrying of arms into the Agora or into temples or other public spaces: “He shall be fined, who is seen to walk the City-Streets with a sword by his Side, or having about him other Armour, unless in the case of Exigency.” (John Potter, The Antiquities of Greece, p. 182 (4th ed. 1722) (quoting law of Solon.) But any argument against a right to keep and bear arms advances no further than the premise. The exception presupposes the rule. This type of legislation was not a covert step toward abolishing all ownership of arms. It was legislation designed to prevent armed tumults arising in places of public assembly. The prevailing view in western antiquity was summed up by Cicero,

There exists a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. ... Thus, a man who has used arms in self defence is not regarded as having carried them with a homicidal aim.’ (Cicero, Selected Political Speeches, Translated by M. Grant, p.222, (1969).)

Murderous & Merrie England

(Anglo Saxon Gangs)

When we come to the post-imperial period, it cannot seriously be asserted that the bearing and training in the use of arms was not regarded as integral to manhood, to freedom and to the welfare of the clan or region as a whole. It was a law “inborn in our hearts” -- at least in German ones -- that men, in so far as they were men, bore arms.

In the year 410 the Emperor Honorius wrote to the British Romans instructing them to look to their own defence. As is well known, there ensued four centuries of armed flux, during which Britain was successively invaded by Germanic and Scandinavian armed bands. Just afixing labels to these incursions tends to impose an order on the situation that did not actually exist. What Cicero only imagined had come to life.

What are called the invasions of the Danes, Jutes, Angles and Saxon were actually incursions by loosely federated clans. Their dominions were ad hoc and coextensive with their demands for tribute. One witty professor likened the Barbarian Migrations to being invaded by motorcycle gangs. What is clear is that these gangs were armed.

So too were the increasingly localized vestiges of Roman administration. By the 6th century “Roman” rule had disappeared. Defence of Roman regions and settlements was left to local leaders mustering the inhabitants as best they could. New political and social identities emerged, including an Anglian culture in the east of England and a Saxon culture in the south, with local groups establishing regiones, small polities ruled over by powerful families and individuals. By the 7th century, some rulers, including those of Wessex, East Anglia, Essex, and Kent, had begun to term themselves kings, living in villae regales, royal centres, and collecting tribute from the surrounding regiones or "shires" in plain Saxon.

In this more or less tribal state of affairs, an offence against one member of the clan was deemed an offence against all. As Polus said in the Republic (Book I), “justice is doing good to your friends and harm to your enemies.” The Saxons would have grunted in aggreement. If a clan member was injured, it befell all his cousins to go out and avenge his agreement on the offending clan. This was not “military” service; it was simply “self” defence, the “self” being the tribe or clan of which one was a part.

Nevertheless, equally rudimentary regulations sought to regulate the use of arms. A law of King Alfred the Great (c. 890) provided that: “if a man have a spear over his shoulder, and any man stake himself upon it, that he pay the ‘wer’ without the ‘wite.’ “ Another law provided that “If any man fight in the king’s hall, or draw his weapon, and he be taken; be it in the king’s doom, either death or life, as he may be willing to grant him.” [*] What we have here are laws governing the proper carrying of spears and prohibitions against using them at court. But both decrees presupposed and allowed the bearing of arms, even in the king's hall.

Although the legislative literature is somewhat sparse, depictions, burials and historical accounts all indicate that in Anglo-Saxon Britain arms were status symbols, often elaborately embroidered, and interred with their owner. Arms also provided the nexus for proto-feudal social obligations.

The giving of arms was deeply rooted in Germanic custom. Arms symbolized the bond a thane had with his overlord. In the earliest times some leader would endow his subordinate with arms (a horse and a sword, for example) in return for leige service. On the vassal's death the weapons would be returned to the lord, although this was soon substituted by a monetary payment, in effect an estate tax. As times progressed the would-be thane usually came equipped with his own arms and was awarded lands instead. It stands to reason that the more arms and attendants he came with, the higher grade he was awarded. Soon the practice got reversed: the higher up on the social rankings a person was, the more arms and armour and soldiers he was required to provide. The documents reflecting these early customs are sparse but if they provide nothing else, they give us a general idea of the type of equipment an Anglo-Saxon warrior was expected to possess in order to do his duty.

To whom the duty was owed was not always clear. However, around 860 and faced with ongoing Danish/Viking onslaughts, King Alfred of Wessex, later “the Great,” unified the country's various shires into a fortified system of defence based on the fyrd. The fyrd was a type of early Anglo-Saxon army that was mobilised from freemen or paid-men to defend their shire or their lord's estate, or to join a royal expedition. Service in the fyrd was usually of short duration and participants were expected to provide their own arms and provisions.

(The One against the Many)

In 1066, William of Normandy invaded England and defeated the semi-united Anglo-Saxons at the Battle of Hastings. The Conquest was fairly brutal. Although the Normans left the peasants alone (someone has to do the work), they simply killed the Saxon nobility and took over their estates, erecting fortified castles thereon. But, in doing so, they literally built upon the pre-existing Saxon feudal organization. Really, only the players had changed.

It is almost a misnomer to speak of the Norman Conquest. Although the Normans were united in an overall goal, they were united as federated warrior-nobles. To each his castle and the domains over which the warrior ruled and from which he acquired tribute. For the next 300 years there ensued a dynamic tug-of-war between nobles who asserted their autonomy and a king who sought to assert centralized royal authority. By the 17th century, this dynamic metamorphosed into the tug-of-law between King and Parliament. Although the issue in England was finally settled in 1688, the Norman Dynamic found new life across the Atlantic in America with its traditions of individual and State sovereignty.

The opening gambit in this tug was William's more or less unilateral declaration that he owned all lands in England, which he would parcel out as he saw fit. The nobles' response was: Sure, whatever you say, so long as they are ours to have and to hold. “As loyal-liegeman,” came the reply. The word liege is interesting. It derives from proto-Germanic for lax or slack and hence, free. The opposite, of course, was obliege -- to be bound; and thus the vast tableau and hierarchy of freedoms and obligations that characterized the feudal system.

If here were a singular feudal motto it would be, SUUM QUIQUE: to each his own; from each according to his own. Feudalism was a vast system of cooperation based on personal relations -- not in the capitalist sense of unit person to unit person, but in the full bodied sense of psychological, moral, marital and economic friendships, organically working together under the aegis of Christ and his Vicar on Earth. That at least was the ideal -- the supposedly true state of things in contrast to mere aberrations howsoever persistent those aberrations might be. The stitch and fulcrum of the whole thing (aside from bread on the tongue) was a sword in the hand.

(In Defence of Hearth and Realm)

The Assize of Arms - Hen. 2 (1181)

In an effort both to consolidate the defence of the realm and at the same time to strengthen his hand vis a vis the nobles and barons, King Henry II, decided to strengthen the Anglo-Saxon militia system by promulgating the Assize of Arms (1181). The decree commanded that all freemen of England swear allegiance to the King and were to keep and bear arms according to their station in life; viz.

• Whoever possesses one knight's fee shall have a shirt of mail, a helmet, a shield, and a lance; and every knight shall have as many shirts of mail, helmets, shields, and lances as he possesses knight's fees in demesne.

• Moreover, every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance; and every free layman possessing chattels or rents to the value of 10 marks shall have a hauberk, an iron cap, and a lance.

• Item. All burgesses and the whole community of freemen shall have a gambeson, [padded doublet] an iron cap and a lance.

• If anyone having these arms die, his arms shall remain to his heir. If, however, the heir is not of age to use arms in time of need, that person who has wardship over him shall also have custody of the arms and shall find a man who can use the arms in the service of the lord king until the heir is of age to bear arms, and then he shall have them.

• Item, no Jew shall keep in his possession a shirt of mail or a hauberk, but he shall sell it or give it away or alienate it in some other way so that it shall remain in the king's service

Two things in this decree are noteworthy. First, was that civic personality, what we call citizenship, was tied to the possession of weapons of war. Thus, Jews were prohibited shirts of mail, although the statute did not prohibit them from keeping knives or swords for their personal defence. Second, the arms were personal property (“his arms shall remain to his heir”) albeit “in the king's service.”

Present day, gun-control commentators have stressed that the Assize makes no mention of a “right to bear arms.” One commentator states that “There was no ancient political or legal precedent for the right to arms.... it was [not] in Magna Charta 1215 ....No early english government would have considered giving the individual such a right.” (Schwoerer, To hold and bear Arms: the English Perspective (CHICAGO-KENT LAW REVIEW [Vol. 76:27]).) What in the world does the phrase “shall remain to his heir” refer to if not a claim of right to the arms? Schwoerer's textualist argument betrays an incomprehension of the medieval mind-set. No early English government would have considered taking away the right; for, as the Assize makes clear, “the government” -- that is the King -- relied on the fact that his subjects would be armed.

In the later capitalist system rights and duties are correlated as antagonisms; in feudalism the correlation was sympathetic. The liberal view is the one man's right implies another man's duty. In the medieval mind, my right implies my obligation. The ownership of something was tied to its use. Thus, as mentioned previously, if a lord gave a horse and sword to knight, they were his to have and to hold but in the expectation that, when needed, they would be used in the service of the lord. This is the basic concept of a trust. Likewise, the concept of the irresponsible use of land did not exist; rather land was held of the lord in expectation of military and monetary duties owed to him, just as the land came with duties, privileges and immunities to the holder. Thus, with respect to both arms and land, the obligation implied the right; the right entailed the obligation, in one and the same person. It was this mindset that gave rise to the concept of noblesse oblige. To anachronistically project current concepts of rights versus duties is to do violence to the past. The fact that the Assize of Arms does not contain the word “right” is an irrelevance.

Equally irrelevant is the fact that Magna Carta (1215) does not mention a right to bear arms. It may be said succinctly that when the barons extorted concessions from King John they were not leaning on their quills (if any they had). Magna Carta did not waste time on political theory. It was concerned with correcting abuses and wresting concessions from the Crown within the complex feudal hierarchy of fees and services. There was no need to mention a “right” to bear arms because the bearing of arms was simply a given.

However, we should not be stupid about this, either. We ought not to imagine that a farmer who “rolled his cheeses to market” (Piers Plowman) inconvenienced himself doing so with a sword and buckler; but neither should we think that a lonely traveller armed himself with cheeses.

Medieval life was above all down to earth. It took time enough to boil the porridge, plow the field, reap the wheat, shear the sheep, weave the cloth, tan the hide, smith the tools and, of course, build fortresses and cathedrals without getting into your pickup wagon to go off somewhere and play with bump stocks. Arms were one of the many necessities of life, used when needed (for better or worse); and, among those necessities, was the maintenance of law and order.

The Statute of Winchester, 13 Edw. 1 (1285)

The barons at Runneymede (1215) made only a slight dent in the expansion of royal power. In the ensuing decades, the Crown continued its attempt at political consolidation; and, as part of that process, undertook to regulate the policing of growing townships. The ordinances of 1233 and 1252 provided for night watchmen and made provisions for enforcing the Assize of Arms of 1181. The whole system of the assize of arms and of watch and ward was consolidated in 1285 by the Statute of Winchester which declared that each district (“hundred”) would be held responsible for unsolved crimes and that each man was to keep arms to take part in the hue and cry when necessary. Thus,

“It is likewise commanded that every man have in his house arms for keeping the peace in accordance with the ancient assize; namely that every man between fifteen years and sixty be assessed and sworn to arms according to the amount of his lands and, of his chattels; that is to say,

for fifteen pounds of land, and, forty marks worth of chattels, a hauberk, a helmet of iron, a sword, a knife and a horse; 

for ten pounds worth of land and, twenty marks worth of chattels, a haubergeon, a helmet, a sword and a knife; for a hundred shillings worth of land, a doublet,4 a helmet of iron, a sword and a knife;

for forty shillings worth of land and over, up to a hundred shillings worth, a sword, a bow, arrows and a knife;

and he who has less than forty shillings worth of land shall be sworn to have scythes, gisarrnes, knives and other small weapons;

he who has less than twenty marks in chattels, swords, knives and other small weapons.

And all others who can do so shall have bows and arrows outside the forests and within them bows and bolts.

And that the view of arms be made twice a year. And in each hundred and liberty let two constables be chosen to make the view of arms ....

These statutes made explicit what was at the time taken for granted; namely, that the Assize of Arms was not solely concerned with military service in war, but also with armed service in peace; i.e. policing.

It is a mistake to argue that these statutes show that bearing arms was “tied to” military service or service in a militia. Thanes and other vassals were not organized into miles, they did not live in military camps. As stated, the essence of feudalism is that it was a warrior society. Over and above being a serf, bearing arms was part and parcel (along with rolling cheeses) of participating in public life.

Central to this participation was the duty to raise the hutesium et clamour or “hue and cry” whenever a crime was committed. The law required “all true men to take part in this work and are punishable if they neglect it.” (Pollock and Maitland The History of English Law before the Time of Edward I, v. 2 p. 582. (Cambridge: Cambridge University Press, 1898).) Upon the cry of “Out! Out!,” neighbors were expected to “turn out with the bows, arrows, and knives” to give pursuit. (Ibid.) Morever, (and this gets totally forgotten), the town was held collectively responsible for unsolved crimes.

The proposition was simple: part of living together was the duty of able-bodied men to be armed so as to be able to respond to the hue and cry at the local level and to a summons to war at the national. What we would call “civil society” was itself the militia, and that militia simply meant “the able bodied men assembled.”

Related to the hue and cry, was the watch. An order of Edward I in 1297 commanded that,

“Every bedel [administrator] shall make summons by day in his own Ward, upon view of two good men, for setting watch at the Gates;—and that those so summoned shall come to the Gates in the day-time, and in the morning, at day-light, shall depart therefrom. And such persons are to be properly armed with two pieces; namely, with haketon, and gambeson [inner jacket, worn beneath the haketon, or other armour], or else with haketon and corset, or with haketon and plates. . . . (R. Burn, 2 The Justice of the Peace and Parish Officer 16-20 (London 1755); F. Maitland, The Constitutional History of England 276-77 (1968) (1st ed. Cambridge 1908).)

The duty to raise the hue and cry would extend well into the modern era and even across the ocean. But as relevant here, the point is that, encompassed within the duty, was the ongoing expectation that citizens of all station would keep arms.

Subsequent statutes extended the duty of “keeping” into one of “practicising” with them A decree of Edward III in 1363 provided that:

“Whereas the people of our realm, rich and poor alike, were accustomed formerly in their games to practise archery – whence by God's help, it is well known that high honour and profit came to our realm, and no small advantage to ourselves in our warlike enterprises... that every man in the same country, if he be able-bodied, shall, upon holidays, make use, in his games, of bows and arrows... and so learn and practise archery.” (Morgan, R.B., ed. Readings in English Social History: From Pre-Roman Days to AD 1837. Cambridge University Press. (2014) [1st pub. 1923] p. 150.)

This decree is interesting not only because it required what we would call military training but also because it reflects that “military training” was an individual and family affair. The system worked. Longbowmen were critical in winning the Battle of Agincourt in 1415. Edward III would have totally approved of American yahoo's heading off in their pickups to engage in warlike games and practicing with their assault-style AR-15's.

An interesting decree later that century indicates that England was running short of the wood needed to make longbows. The Statute of Westminster of 1472, provided that every ship coming to an English port had to bring four bowstaves for every tun of cargo. (12 Edw. 4 (1472), Statutes at Large from Magna Carta to 1800, v. 3, (1762).) A decree of Henry VIII ordered that every village was to maintain targets on its green on which local men were to practice shooting “in holy days and other times convenient.” [* ]. Similarly a decree of Elizabeth I required every family to provide a bow and two shafts for each son between the ages of seven and 17 and to be trained in their use. [*] Hugh Latimer, one of the four protestant “Oxford Martyrs” later executed for heresy recalled,

“My father taught me how to draw, how to lay my body in my bow ... not to draw with strength of arms as divers other nations do ... I had my bows bought me according to my age and strength, as I increased in them, so my bows were made bigger and bigger. For men shall never shoot well unless they be brought up to it.” (Trevelyan, G. M. (2008). English Social History – A Survey of Six Centuries – Chaucer to Queen Victoria. Longman.)

Latimer was no knight but was born into a family of ordinary free farmers, and his memoir bespeaks the persistence of the concept and custom of an armed and practiced citizenry. A little historical imagination might be of use. On holy days and other times convenient, men and boys would be seen practicing in their fields or walking down the roads towards the practice green openly carrying bow in hand with quivers on their back. No doubt they had competitions, horsed around and drank beer.

As shall be seen, when we come to the English Civil Wars of the 17th century the medieval militia will get both militarized and individualized. One the one hand there was the establishment, under Cromwell, of a standing modern “Model Army.” At the same time, citizens will be individually armed both for policing and for self defence. In the aftermath of the Glorious Revolution (1688), this practice will get enshrined as a right and will ultimately metamorphose into the Second Amendment.

(Keeping the Knights in Check)

The Statute of Arms (1260)

The Statute of Arms (1260) prohibited the use of armour, mace and pointed swords or daggers at tournaments. To modern ears, this prohibition seems paradoxical until we learn that the earliest tournaments were lighthearted melées in which the combatants used mock weapons (Britannica). As happens, the participants began upping the ante- until tournaments became armed battles which ended, among other things, in general drunkenness, pillage, rape, and killing. It's called “chivalry.”

Some have cited the Statute of Arms as proof that a limitation was put on the types of weapons a person could have. That is not correct. By its plain terms the statute put limits on the the types of weapons a person could have at tournaments. The Statute of Arms did not enact some kind of general “sword control” but was rather akin to outlawing the use of brass knuckles in boxing matches.

The problem of rowdy knights persisted, however, and in 1302 Edward I, issue a decree prohibiting,

“any knight, esquire or any other person from tourneying, tilting (burdeare), making jousts, seeking adventures or otherwise going armed without the king's special licence, and to cause to be arrested the horses and armour of any persons found thus going with arms after the proclamation, as the king wills that no tournaments, tiltings or jousts shall be made by any persons of his realm without his special licence.” (4 Calendar of the Close Rolls, Edward I, 1296-1302, 588 (July 16, 1302, Westminster) H.C. Maxwell-Lyte ed., London, Mackie And Co. 1906)

Ten years later, his successor, Edward II, was constrained to reissue the decree,

“[N]o one shall, under pain of forfeiture, make assemblies with horses and arms or go armed or hold tournaments, jousts, etc., without the king's special licence, or do anything to disturb the peace, and to arrest all persons doing contrary to this order, certifying the king of the names of any persons resisting him. (1 Calendar Of The Close Rolls, Edward II, 1307–1313, at 553 (Oct. 12, 1312, Windsor)

As might be detected in this last statute, the problem of rowdy tournaments was metamorphosing into affrays of the peace and the the more prosaic problem of crime. Thus,

A Statute for the City of London 3 Edw. 1 (1285)

[Whereby...] “It is enjoined that none be so hardy to be found going or wandering about the Streets of the City [of London], after Curfew tolled at St. Martins le Grand, with Sword or Buckler, or other Arms for doing Mischief, or whereof evil suspicion might arise; nor any in any other Manner, unless he be a great Man or other lawful Person of good repute, or their certain Messenger, having their Warrants to go from one to another, with Lanthern in hand.” [ statute ]

As with the Statute of Arms, some seek to cite this statute as evidence of general statutory prohibition against open carry. It was not. By its terms, it only prohibited bearing arms “for doing mischief” or in a suspicous manner, exempting men of good repute who were above suspicion. More significantly however, it only applied to London. A nation-wide curfew was imposed instead by Section 4 of the above mentioned Statute of Winchester,

“that in great towns being walled, the gates shall be closed from the sun-setting until the sun-rising; and that no man do lodge in suburbs, nor the edges of the town, except in the day-time... [and that] in every city by six men at every gate; in every borough, by twelve men; in every town, by six or four, according to the number of the inhabitants of the town, and they shall keep the watch continually all night from the sun-setting unto the sun-rising. And if any stranger do pass by them he shall be arrested until morning; and if no suspicion be found he go quit; and if they find cause of suspicion, they shall forthwith deliver him to the sheriff ...” [*]

Not once was there a mention of arresting people carrying arms or even on suspicion of doing so. Gun-control proponents mistakenly interpret the Statute of London as listing arms themselves as constituting “mischievious” things and then ignore the above cited Section 4.

Another decree sometimes cited as evidence of sword control was the Coming Armed to Parliament Act, 7 Edw. 2, 170 (1313) which provided that “that every Man shall come without all Force and Armour, well and peaceably, to the Honour of Us, and the Peace of Us and our Realm; and now in our next Parliament at Westminster...” What the act actually illustrates is the danger of taking statues out of their political context.

At the time Edward II was engaged in yet another perennial dispute with the barons, over taxes, over wars and over who got control over what. In addition there was much discontent over the Edward's liason with Piers Gaveston and Gaveston's liason with Florentine bankers. After much to-ing and fro-ing, Edward agreed to the Ordinances of 1311 whereby it was ordained that the king should appoint his officers only "by the counsel and assent of the baronage, and that in parliament” and, furthermore, that he could no longer go to war without the consent of the baronage, nor could he make reforms of the coinage. Additionally, it was decided that parliament should be held at least once a year and that Gaveston should be banished.

Needless to say, in true medieval fashion, Edward agreed and then immediately reneged. The fight was again on. It was in that context that the decree forbidding “every man” (i.e. the nobles) from appearing in court with arms and threats was made. It is worth bearing in mind that until the Settlement of 1701 no English monarch sat all that securely on his (or her) throne.

The political and social unrest continued and, finally, in 1326, Edward II issued an order to all sheriffs of England.

To the sheriff of York.

Order to cause proclamation to be made throughout his bailiwick that if any man hereafter go armed on foot or on horseback, within liberties or without, he shall be arrested without delay by the sheriffs and bailiffs and the keepers of the King's peace, and his body shall be delivered to the nearest gaol in the arms wherewith he shall be found, and that he shall be safely kept therein until the king be certified thereof and until the King have expressed his will in the matter, the King having caused proclamation to be made that all men of the realm shall be armed according to the Statute of Winchester, so that they be ready and apparelled to pursue and arrest felons and other evildoers and also the enemies of the king and of the realm in case aliens or other rebels enter the realm as enemies, and the King is now given to understand that certain evildoers and disturbers of his peace in divers places are allied together (entrealies), and, under colour of the said statute, cause themselves to be armed and ride about in warlike manner (chivauchent), and go by day and night with force and arms, to the terror of the king's people, and take and rob men at their will, and imprison some until they make fine and ransom with the said evildoers, and that the evildoers come into fairs and markets and take men's goods without paying for the same against their owners' will, and beat and maltreat (defoulent) those who will not be of their accord, and that certain of them take and hold passes (paas) in divers places under cover aud in the open (en covert et dehors), and rob merchants and other men notoriously and openly.

The like to all the sheriffs of England. El sount patentes.

(4 Calendar of the Close Rolls, Edward II, 1323-1327, 547-552 (March 6, 1326, Leicester) H.C. Maxwell-Lyte ed., London, (1898) [emphasis added].)

Again, some have argued that this order reflected a law against public carrying of arms. But this interpretation is belied by the plain terms of the ordinance. It is plain as day that the problem at hand was criminal conduct by certain evildoers and disturbers of the peace. It is also plain that the order reaffirmed the Statute of Winchester, requiring people to keep arms. The solution to dilemma was to enact a prophylactic measure that did not actually impose a fine or penalty but only ordered a temporary detention until the king could “certify” the matter. The person so arrested was to be “kept safely... in the arms wherewith he shall be found.” In other words, no forfeiture of arms was imposed. The obvious was left unstated: if it emerged that the man was up to no good, he would be punished as appropriate. But the order did not per se outlaw going around armed. If it did, there would be no need for an inquiry. Being armed and about would be the crime and that would be that.

More significant for our purposes, as shall be seen, is the use in this statute of terms like make assembly, entrealies, chivauchent and to the terror of the king's people. Much of the textual debate hangs on these words.

(In Terrorem Populi Regis)
To England / will I steal, and there I’ll steal
Bawd I’ll turn, and something / lean to cutpurse quick of hand
- Pistol (Henry V, Act V, 88-90.)

If the reader is coming to the conclusion that England in the 14th century was experiencing a crime wave he would not be wrong. It wasn't just that destitute and desperate or depraved people were committing crimes, or that embittered veterans [*] were returning without fame or fortune from foreign wars, it was also that political conflicts between factions at court and between baronial autonomy and royal rule were settled, as often as not, by force or the threat of force. The lines between tournaments, crime and politics were blurry. But the converse was also true. Royal statutes regulating the watch and prohibiting affrays were also political gambits aimed at extending royal jurisdiction.

Most ordinary legal disputes were handled at the local manorial level. Typical fare was: the owner of a dog has to pay for the damage it does; Beatrice who should have made a shirt for Agnes has to pay one penny damages for failing to do so; Rose called Ralph a thief, and Ralph called her a whore, and so both are fined, and since the trespass done to Ralph exceeds the trespass done to Rose she must pay him damages of twelve pence for the difference; two men are fined for having “falsely, maliciously and in contempt of the lord, defamed his court by saying that no one can obtain justice there.” (Plucknett, op cit. Ch 2. Seignorial Jurisdiction.)

At which point the King stepped in with a promise of better justice in his courts. The dispensing of justice became a key factor in the ongoing jockeying for dominance between local and royal authority. The Crown made available five basic “writs,” which one could obtain and fill out in the expectation of swift and effective justice. One of these applications was a writ for trespass to land or goods vis et armis (with force and arms).

But the King's writ did not run everywhere. It did not (as of yet) supersede manorial courts and it did not extend to Church lands or to those things (such as marriages and testaments) over which the Church had exclusive jurisdiction. In so far as crimes were concerned, a royal writ could be obtained only if the conduct in question could be said to be an affront to “the King's Peace.” The modern day equivalent would be claims seeking to invoke federal jurisdiction. The king was of course anxious to extend his “peace” over as much as he could, but it is an anachronism to regard any of the ordinances in question as strict analogs to modern day statutes of general application. That said, one such extension of the King's Peace was,

The Statute of Northampton, 2 Edw. 3, c. 3 (1328)

Whereas Offenders have been greatly encouraged, because Charters of Pardon have been so easily granted in times past, of Manslaughters, Robberies, Felonies and other Trespasses against the peace . . . [¶] ... Item. it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants in his presence, and his ministers in executing of the king’s precepts, or of their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, and the same in such places where such acts happen, be so hardy to [1] come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, [2] nor bring no force in affray of the peace, [3] nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor [4] in no part elsewhere, upon [5] pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure. And that the King’s justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office. [statute]

This statute has been a major bone of contention between gun-rights and gun-control activists, each claiming that it supports their respective positions. It is astonishing that Americans in the 21st century, are arguing over the wording of a 14th century statute. After 1792 and the advent of legal positivism within the Machiavellian state, such a thing would not happen on the Continent. But, in a Monty Python system embedded in precedent, what we are about is not just what we want now but also what we have wanted and indeed “have always” wanted. This is what the U.S. Supreme Court means when it talks about rights “rooted” in history and practice. What makes a right “fundamental” is less its place among an ordered abstraction and more its usage in everday customs and usages. As Justice Holmes famously stated the life of the Common Law was not logic but experience. As for the Statute, at the end of the day, the gun-rights activist have it but admittedly it will be a slog...

“armure”

Some gun rights advocates have argued that the forfeiture clause [5] of the statute indicates that the law only applied to armour and not to arms in general. One present day Virginia judge did an exhaustive compilation of all contemporaneous ordinances and edicts in order to show that the word “armed” exclusively meant “equipped with armour” (doublets, mails, breast-plates, etc.) and not just carrying a weapon. [*] In my view, this restrictive interpretation is not tenable. The phrase “a force et armes” is a Norman-French translation of the Latin vis et armis which, as we have mentioned, was used in the Common Law to denote a resort to armed violence. A suit for trespass vis et armis did not require proof that the assailant was equipped with battle armour, only that he was armed in some fashion. It is true that the Norman French armure (Lat. armatura) meant: an armoured troop or soldier, protective armour, and the tools of warfare, but it also meant just weapons and arms. [see "armure"]

I am no devotée of sociological jurisprudence when it is used to circumvent the plain meaning of words; but, at times, it does make sense to look at actual social conditions to understand the intent and meaning of a statute. In this regard, it is worth note that the preface to whole statute refers to men “great and small.” Small men, peasants and tradesmen and even burghers were not likely to possess metal helmets, chain mail and breastplates, much less “go about” with them. Even if one were a knight, going about in full battle armour was an incredibly cumbersome business. One had to be lifted onto one's horse; the armour limited mobility and if one fell, he was as good a turtle on his back -- not a good position for fleeing the scene of crime. No doubt the knights miscreant used whatever was handy to their purpose and left at home whatever was not. Our interpretation of the statute should be equally flexible. However, that same flexibility indicates that the real subject of the statute was not “arms” but conduct.

“chivaucher”

Gun control advocates argue that the statute by its plain terms prohibited “rid[ing] armed” analagous to “open carry” or driving with a weapon in a vehicle. Whether “armed” meant carrying a weapon or being suited with armour or both, in both medieval and modern English, to ride armed means simply to go about on horseback and, in this case, to ride equipped with “arms”. However, the statute wasn't written in English but rather in Norman French, and the phrase in question is: a force et armes, ne force mesner en affrai de la pees, ne de chivaucher ne d'aler arme...

Et, qu'est ce que s'est “chivaucher”? At first blush, a derivative of the Latin caballus, it means simply to ride (a horse). But it also means to overlap and hence empieter (infringe) or ursuper (usurp), rights, liberties, goods. (Dict. Larrousse [s'arroger des droits, prendre une partie des biens, des avantages qui appartiennent à quelqu'un d'autre]); hence, “to ride on horseback, usually for the purpose of raiding and pillaging.” (Wiktionary.)

Now, we would not hang the whole point on wiki, but it will be recalled that in the predecessor statute of 1326 chivauchent was translated as “ to be armed and ride about in warlike manner.” And it will be noted that this translation was made in 1898 in London well before the present debate.

As discussed, that same predecessor statute, by its express terms, was aimed at “certain evildoers and disturbers of his peace in divers places [who] are allied together (entrealies), and, under colour of the [Statute of Winchester]... go by day and night with force and arms, to the terror of the king's people, ... [robbing and kidnapping people at will.]"

A well established rule of interpretation is that statutes and decisions are presumed to be promulgated with knowledge of and consistent with pre-existing law, unless an intent to depart therefrom unequivocally appears. In this case, what unequivocally appears is a consistency of usage indicating that the statute was aimed at affrays or criminal conduct. As will be recalled the Statutes for the City of London, 13 Edw. 1 (1285) made it a crime to go about armed after curfew “for Mischief.” Similarly “ make assemblies “ in the decree of 1312 (which became “allied together” in the Statute of Northampton) was used in the context of rowdy tournaments or being up to no good.

Additional rules of statutory construction are (1) that the specific modifies the general; (2) that, to the extent possible, every word in the statute has to be given effect, and (3) that a statute is to be interpreted in line with its stated general purpose. For example, a statute that prohibits owning “goats, pigs and other animals” will be read as applying only to goats and pigs. If it is unlawful to own “other animals” why bother mentioning pigs and goats which are included within the term “animals”? Lastly, if the statute states that its aim was to address problems in animal husbandry, it follows that it was not intended to apply to wild boars.

Returning to the Statute of Northampton, at first blush clause [3] appears to state a general condition in which riding at “fairs and markets” get swallowed by riding in [4] “no part elsewhere” and clauses [1] (“come before the King”) and [2] (in “afray of the peace”) get swallowed in their entirety by “ride armed” without any further qualification. However, the word chivaucher indicates that clauses [1] through [3] were illustrative and simply specified three different types of prohibited “warlike” conduct. So read no clause swallows the other.

The Statute of Northampton plainly states that the problem it was seeking to address was “Manslaughters, Robberies, Felonies and other Trespasses against the peace;” in other words crimes of violence and public disturbances. This ultimate purpose also strongly suggests that all the other clauses were illustrative of the kinds of trespasses envisioned. The statute immediately made exceptions: i.e. “going armed” when responding to the hue and cry; or when the king's business. Nor, by fair implication, did it mean “going armed” when travelling alone across the heaths... the very same heaths infested with killers, robbers, and trespassers against the peace.

Harmonizing all the words in the statute and reading it the light of near contemporaneous other enactments the statute must be construed as prohibiting riding with arms with the intent of doing harm or in such a manner that people were would be terrified.

Poor King Edward! Having given orders for all men to be armed and at the ready, he was now faced with a country overrun by lusty and aimless men armed to the teeth banding together to raise their own kind of hue and cry, riding around in a warlike manner, stealing things, beating up on people and generally terrorizing the populace .... Exactly the sort of thing gun-control activists are terrified of.

And being so terrified, gun-control activists propose the prophylactic solution of banning guns altogether (or at least of regulating them so strictly as to make their possession practically impossible). The notion is that if lusty and aimless men (“toxic males” in modern parlance) don't have weapons all their rump and ruckusing will be deprived of lethality.

That is a theoretical solution to be sure, but that is not the sort of solution that would have occurred to Edward. In the first place, the barons wouldn't have had none of it. They would not have given up the one edge they had in their on going conflict with the Crown. In the second place, as pointed out, the Crown needed people to be armed; the whole system of defence and policing depended on it. One could hardly hold towns responsible for crimes and at the same time require yeomen to give chase with cheeses. Lastly, there was the small matter of forests, heaths and foggy bogs. It simply defies belief that any monarch would be so mad as to require his loyal subjects to travel them unarmed. Travelers surely didn't walk or ride with a battle-axe or halberd, but they would have carried a sword or javelin or, for that matter, a multi-purpose staff.

The cases I have found (through a by no means exhaustive rummage) point to the practical fact that the actionable carrying of arms was connected to their misuse in some species of trespass.

In 1478, an injunction was authorised under the Statute of Northampton “against assemblies of armed men....in consequence of recent attacks on dwellings” at Dalton near Rotherham. (Warrant of Rob. Ryther, kt., upon Crown writ, authorizing John Leek, Thos. Boswell and...” (October 31, 1478) cited in Skolnik Observations Regarding the Interpretation of the Statute of Northampton, Duke University. [Skolnik]

An injunction is an order aimed at preventing a given type of conduct, and what this report indicates is that the statute was used to authorize an order against attacks not against riding about armed. But the word “assemblies” point to another item of interest.

In the 21st year of his reign Henry VII promulgated a statute prohibiting going about with armed retainers under the pretext of “self defence.” Henry VII ascended the throne in 1457 and 21 years later, in 1478, he issued the above injunction “against assemblies of armed men.” What was really at issue was suppressing rival nobles in the aftermath of the War of Roses. Among Henry VII's measures were a variety of laws against livery and maintenance, the practice of the great lords of having large numbers of "retainers" who wore their lord's badge or uniform and formed a potential private army. The sort of thing done by the Montagues and Capulets. It doesn't require much imagination to envision how these liveried “assemblies” worked. As often as not “maintaining” one's lord included supporting them in their disputes, which often ended up obstructing judicial processes.

In Newman v Newdygate (1529-1518) the plaintiff, Agnes Newman used a writ “based upon the Statute of Northampton de armis non portandis [about not carrying arms] to sue for an unlawful ejection from her land that she was tending.” (Skolnik, op cit. [*])

Again in 1602, a writ to the Sheriff of Essex was obtained “to arrest “John Fitzwilliam, of London, esq. and certain other evil-doers, armed and arrayed for war, [who] have forcibly entered the park of William Fitzwilliam esq. and seized etc his goods, rents...contrary to the Statute of King Edw.III. against carrying arms against the peace.” (Skolnik, op cit. [*])

In these last two cases what was actually prosecuted was a resort to force, whether it was charged as a trespass or as an alleged violation of the Statute of Northampton. Other statutes clearly adopted a more prophylactic approach, banning certain types of arms in certain places. But the banning of them on highways or in general is always conditioned on a malicious intent. Thus,

Statutory Crime of Affray, 25 Edw. 3, stat. 5, c. 2, § 13 (1350)

“and if percase any man of this realm ride armed [covertly] or secretly with Men of arms against any other to flay him, or rob him, or take him, or retain him till he hath made Fine or Ransom for to have his Deliverance, it is not the mind of the King nor his Council, that in such Case it shall be judged Treason, but shall be judged Felony or Trespass, according to the laws of the land of old Time used.”

In the reign of Richard II, two decrees were made, upon complaints in Parliament, against riding about with specified arms or armour:

7 Ric. 2, 35, ch. 13 (1383)

no Man shall ride in Harness within the Realm, contrary to the Form of the Statute of Northampton thereupon made, neither with Launcegay within the Realm, ....

20 Ric. 2, 93, ch. 1 (1396)

no Man shall ride armed within the Realm, against the form of the Statute of Northampton thereupon made, nor with Launcegays . . . nor ride by Night nor by Day armed, nor bear [Sallet] nor Skull of Iron, nor [of] other Armour, upon the pain aforesaid; save and except the King’s Officers and Ministers in doing their Office. [statute]

Anti-gun activists have read these two enactments as blanket prohibitions against riding armed (with the specified equipment). However, while these statutes did add specified items to the Statute of Northampton, they did not otherwise elaborate on how that statute was understood or applied. “Against the form of...” meant simply “as is prohibited in....” and as shown, as prohibited in required a showing of harmful manner or intent to do harm.

A statute of Henry IV, published seven years later indicates that “as prohibited” meant in and during an affray.

4 Hen 4, c. 29 1403

“It is ordained and established, that from henceforth no Man be armed nor bear defensible armor to Merchant Towns Churches nor Congregations in the same, nor in the Highways, in affray of the Peace or the King’s Liege people, upon pain of imprisonment, and to make Fine and Ransom at the King’s Will; except those which be lawful Liege People to our Sovereign Lord the King.”

26 Hen. 8, c. 6, § 3 (1534)

"that no person or persons dwelling or residing within Wales .... coming, resorting or repairing unto any Sessions or Court... shall bring or bear or cause to be brought or borne, to the same sessions or court or to any place within the distance of two miles from the same Sessions or Court, nor to any town, church, fair, market, or other congregation, ... nor in the highways in affray of the King’s peace or the King’s liege people, any bill, longbow, crossbow, handgun, sword, staff, dagger, halberd, morespike, spear, or any other manner of weapon, privy coat of armor defense; upon pain of forfeiture of the same weapon, privy coat or armor, and to suffer imprisonment except it be upon a hue or outcry made of any felony robbery done or perpetrated."

In essence both these last two statutes reiterated the Statute of Northampton and made it applicable to Wales. But aside from the specified restrictions as to place, the statutes did not change the operative language of the earlier Act.

It does not simplify matters when statutes are written in three languages. But the statutes reviewed illustrate both a continuity and evolution of statutory language. The Ordinance of 1326, in its Latin version prohibited riding “with force and arms “in terrorem populo regis” which in English was rendered as “with force and arms, to the terror of the king's people.” In the Statute of Northampton this concept got rendered as “ne force mesner en affrai de la pees” (in French) and “nor bring no Force in affray of the Peace” (in English) which, in the last two statutes reviewed gets truncated into “in affray of the King's peace”

This last phrase, is what is known as a legal term of art or a label of convenience. It means what it says but, given its genesis, it means more. Lastly,the interpretation I have given is corroborated by the fact that phrase “in terrorem” has always meant “by way of threat or intimidation; serving or intended to threaten or intimidate.” (Merriam Webster; Black's Law Dict. (West. Pub. Co. 1968), p. 901; Google Translator [translating phrase as “to intimidate the king's people.”].) The most charitable thing that can be said about those who argue that the phrase “in affray” did not require a wrongful intent or some forcible manner is that they have simply not done their research.

(Fire Sticks)

In 1519 when Cortez and his men disembarked on the Mexican coast, royal runners reported back to Moctezuma that men in “floating houses” had arrived carrying “fire-sticks” which made a deafening sound. These sticks, invented in the previous century, were originally small “portable cannons” that had to be loaded in the same way as the big ones with a slow burning rope or string that ignited the gunpowder and ball. However, at the beginning of the 1500s, a new technology emerged that used a spinning wheel to spark the powder without using an open flame. This enabled the manufacture and use of pocket cannons which could be easily concealed and carried. Fearing assassination the Holy Roman emperor Maximillian banned the ownership of short-barreled wheellock firearms. Twenty three years later, Henry VIII enacted the first handgun legislation in England.

33 Hen. 8, c. 6, § 1, An Act Concernin Crossbows and Handguns (1541).

The Act recites that whereas nobles, gentlemen and yeoman have “ laid apart the good and laudable exercise of the long bow, which always heretofore hath been the surest safeguard and continual defense of this Realm” and whereas “malicious and evil disposed persons . . .do daily use to ride and go in the King’s highways and elsewhere having with them crossbows and little handguns, ready furnished with Quarrel fire and touche to the great peril and fear of the King’s most loving subjects,” it was therefor enacted that:
no person not owning estates worth 100 pounds shall:
(a) have or carry on a highway “any crossbow bent or gun charged or furnished with powder, fire or touche for the same, except it be in time and service of war; or, (b) shoot, keep, use, or have in his house any handgun under one yard in length, or any “hagbutt or demy hake” under three quarters of a yard; or
(c) shoot handguns or hagbutts at anything large in or within on quarter of a mile of any town, city or market, “except it be at a butt or bank of earth in place convenient, or for the defense of his person or house..

To the modern ear, the first quoted paragraph all but screams gun control: people are riding around with guns causing people to be afraid; ergo ban riding around with guns! But that is not what the statute actually provided. The Act plainly prohibited the public carry of any cocked or loaded, weapon. It further prohibited any possession of short barreled guns, which is akin to saying that one can own an AR15 but not a handgun. Lastly, while lamenting the passing glory of longbows, it gave the green light to safe firearm target practice. [statute]

(In case anyone was wondering, £100 (1541) is worth $91,699.20 (2022) so Nancy Pelosi or Hillary Clinton would not be prohibited from bearing their hagbuts in public or on the highway.) [calculator]

The Unlawful Games Act 1541 (33 Hen 8 c 9)

At the same time Henry VIII promulgated the Unlawful Games Act , which prohibited "[s]everal new devised Games" that caused "the Decay of Archery.” The Act required all men under the age of sixty to "have Bows and Arrows for shooting." Boys between seven and seventeen “shall have a Bow and 2 Shafts" while men older than seventeen “shall keep a Bow and 4 Arrows". The penalty for nonobservance was set at 6s.8d. These acts again show that there was no general prohibition against owning weapons of war nor from carrying them about in a due and lawful manner.

Some commentators have noted that, in 1548, during the brief reign of Edward VI, a statute required people who "shoot guns" to register with their local justice of the peace. That is correct; but of equal interest are the Act's recitals,

Whereas an Acte was made....[by] the late Kinge of famous memorie, Henrie the Eighte for some libertye to shoote in Handegonnes, hakes and hacqeubusses, by whiche Acte nevertheless it was p'vided that no p'sone shoulde shote in anye of the abovesaide [precincts] but at a banke of earthe and not to any deare or fowle, unlesse the partie might dispose of one hundred pounds by the yeare: Foreasmuch as the saide Acte havinge byne devised as was then thought for necessarie ex'cise tending to the defence of the Realme, ys growen sythen to the mayntenance of muche ydleness and to suche a libertye as not only dwelling houses [ ] and Churches are dayle damaged by the abuse thefore by men of light conversaçion, but also that there is growen a customable manner of shotinge of hayleshott, whereby an infynite sorte of fowle is killeds ands muche Game therby destroyed to the benefyt of no man... Be it therefore enacted... etc.” ( 4 THE STATUTES OF THE REALM Ch. XIV) [linke]

Considering the idleness and damage being caused what is remarkable is that the only measure taken was a requirement to register.

By the close of the century the technology had improved and some of the pocket guns were quite small. Queen Elizabeth I responded to this trend by issuing,

A Proclamation Against The Common Use Of Dagges, Handgunnes, Harquebuzes, Calliuers, And Cotes Of Defence. 1 Eliz. (1579).

The Queenes Maiestie hearing by credible report, that there are great disorders lately growen in sundry partes of her Realme, and specially in and about her Citie of London, . . by common carrying of Dags, other wise called Pistols, to the terrour of all people professing to travel and live peaceably and . . . by the usage whereof, certaine persons have bene of late in sundry places slaine with such pieces ... and [by the] wearing also secretly coates of armour, commonly called privie coates, whereby many robberies and frayes have bene increased, and became unpunished:

[doth hereby command that her previous proclamations on the matter be put into effect] and added thereto her further commandements and prohibitions against a disorder in carrying and shooting with Handguns & Caliuers within two myles of the place of her Maiesties residence, and neere to Townes and mens houses, where there was no cause of Musters to shew the same, nor any places ordeined for exercise, and against the wearing of privie Coates and Dublets of defence, by such as thereby moved quarels and frayes, upon other quiet subiects unarmed:

And in conclusion of the same latter Proclamation, her Maiestie did also commaund all her Officers in any Citie or Town, to make search for all maner of such small Dags called Pochet Dags, and specially in shops and houses of Artificers that doe use to make the s[a]me: and those to take and keepe in their possession, giving the owners testimoniall of the receipt thereof, to the end if there should be seen good cause, they might have a reasonable recompence.

Several points are noteworthy. First and quite clearly, the proclamation did not differentiate between “arms” and defensive “armour.” Both were encompassed. Just as clearly, as with almost all the statutes reviewed, the proclamation was made in response to what was a criminal and disorderly use of weapons, not their merely their carrying.

But did the proclamation take aim at using arms to put people in fear and danger or did it mean that the bearing of arms itself put people in fear and danger? As previously reviewed, in terrorem populo (here “to the terrour...” etc.), was a phrase indicating an intent to harm. But even disregarding that fact, it is difficult to see how carrying something that was concealed and thus not open to view could cause “terrour” without some additional conduct. It is necessary to distinguish between general recitals and the actual prohibition. The text of the latter arises only after “doth hereby command” and the phrases disorder in carrying and shooting within two miles of the palace and being moved [to[ quarels and frayes, connected the illegality to some form of conduct or circumstances.

On the other hand, the proclamation did end with a command to “ to make search for all maner of such small Dags called Pochet Dags, and specially in shops...” In other words, to search and seize handguns “specially” (but not exclusively) in places where they were being made. Thus while the statute complains about the evil “usage” of these weapons, in the end, it adopted the prophylactic measure of confiscating them at point of origin while compensating the manufacturer.

We cannot know how many “stop and frisks” might have taken place, but it stands to reason that if you couldn't own the pocket guns you couldn't carry them. Curiously enough the statute did specify any penalty for carrying concealed weapons.

By training and profession, lawyers are interested in discovering what the law is and, to that extent, they puzzle over the semantics of statutes and decisions. But, as previously remarked, equally as important is the political context in which the law arose and what the law reflects about the customs, usages and expectations of the people.

The 700 years from King Alfred to Elizabeth I was a vigorous time to say the least. The 9th through 11th centuries saw repeated invasions. The 13th century witnessed three barons' revolts. The 14th century saw the Black Death, the Peasants' Revolt and start of the 100 years war. The 15th century was home to the War of Roses and the establishment of the Tudor dictatorship, as well as the sacking of monasteries, and the break from Rome.

The statutes reviewed clearly reflect an ongoing problem with violent crime (as distinct from violent politics). But just as clearly they step back from imposing the sort of regulation gun control activists would like to read into the law. Such measures could not be imposed on account of the very nature of feudal society.

At the risk of repetition, it was the civic duty of men to be armed and practiced in what were not only weapons for self defence but weapons of war. The question here is whether carrying arms for personal defence was prohibited at other times and absent any indication of criminal intent or purpose. The answer is, no.

Obviously actions for trespass by force and arms -- that is, for assaults, robberies, kidnappings for ransom, etc. -- were maintained by the persons aggrieved; but for the almost 300 years after the enactment of Statute of Northampton, there is an remarkable dirth of actual cases indicating how the statute was applied. Perhaps they are awaiting in some duty pile of parchment waiting to be discovered by some American with an Agenda. But the three cases I came across showed that violation of the statute was connected to some form of violent conduct.

That the Statute of Northampton would not be interpreted or enforced as gun control activists would have it makes perfect sense once we step back from the semantics and allow our mind to travel back in time. Perhaps up to eighty percent of the total population were unfree serfs "tied to the land." But as to the free population, it makes no sense to suppose that tradesmen and merchants and free farmers were going about their business burdened with arms. It also makes no sense to suppose that they traveled, or walked at night, or went to strange places unarmed and defenceless. The very crime waves the statutes repeatedly complain of call for the common sense conclusion that people did, expected to, and were allowed to carry arms with lawful intent and purpose.

As with anything written, there is always room for different interpreations, but the way gun-control advocates have read the medieval record is disingenuous to say the least.

The Machiavellian State

Henry VIII and his daugher, Elizabeth I, were the last of England's medieval kings and the first monarchs of the new nation state. As the country coalesced into a national form so too did feudalism's convoluted, overlapping disputes. The conflict between the barons and royal authority metamorphosed into the conflict between King and Parliament. The competing authorities of Church and Crown transmuted into the rivalry between “Country” and “the City” and into the religious war between Catholics and Protestants. These were the components of a dialectical dynamic that would shape the 17th century and, ultimately modern Britain.

The growing democratization of society placed the issue of individual rights in a new light. The Reformation championed the individual right of conscience, but the converse was that the state began to inquire into an individual's beliefs in a way that had not been done before. For the most part, the Catholic Church only prosecuted people who had publicly deviated from orthodox doctrine, and in England such trials were extremely rare. Beginning with Henry VIII and continuing under Elizabeth, the state demanded public acts of conformity by which the individual was required to affirmatively prove his orthodoxy -- a status previously simply assumed. Worse yet, individual was pitted against individual not on the basis of the theft of a cow or claim to a piece of land, but on the ethereal basis of religious fantasy. As James Madison put it, “the most frivolous and fanciful distinctions have been sufficient to kindle [people's] unfriendly passions and excite their most violent conflicts.” (Federalist Paper No. 10).

James I, who succeeded Elizabeth, was not the ogre he was later made out to be. He brought an end to the nine year Irish War, which had come close to bankrupting the country. He relieved taxation and sought to avoid direct conflict with Spain. However, the discovery of a Gunpowder Plot to blow up Parliament, provoked a wave of anti-Catholic hysteria. Although James was personally latitudinarian, Parliament now required all Catholics to take an oath of allegiance which included acceptance of various doctrinal propositions that Catholics would not abide. The outbreak of the Thirty Years' War on the continent stirred up anti-Catholic feeling to a new pitch, and James was forced to declare war on Spain.

Despite all of this, James' legislation on arms was fairly sparse. In 1613, he issued A Proclamation Against the Use of Pocket Dags which stated that “the bearing of Weapons covertly . . . hath ever beene . . .straitly forbidden as carrying with it inevitable danger in the hands of desperate persons.” Again in 1616 a statute provided that it was unlawful to wear or carry “Steelets, pocket Daggers, and pocket Dags and Pistols, which are weapons utterly unserviceable for defence, Militarie practise, or other lawfull use, but odious, and noted Instruments of murther, and mischiefe.” (A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and Pistols, 1 Stuart Royal Proclamations 359- 360 James F. Larkin & Paul L. Hughes eds. 1973).

It is unclear if the two proclamations were not part of one and the same statute, but either way the statute(s) were no more than a reiteration of the Elizabethan statute on the same subject matter. In any case -- and the gun control advocates are correct on this point -- the statutes unmistakably enacted a prophylactic measure against concealable pockets guns regardless of intent or use. What is noteworthy, though, is the statement that the prohibited weapons had no military value. James' proclamation pre-figured the holding in Miller v. United States (1939) 307 U.S. 134 which upheld the outlawing of sawed-off shotguns because they were not a military weapon and hence were not protected the Second Amendment.

One court case from this era which is cited as evidence of Jacobean gun control was,

Semayne’s Case (1604) 77 Eng. Rep. 194, 195; 5 Co. Rep. 91 a 91 b (K.B.),

his case was one of the great decisions of the Common Law, which together with Entick v. Carrington, decided 150 years later, became the cornerstone of the U.S. Fourth Amendment; however, the issue decided had nothing to do with the Second Amendment.

In Semayne's Case, the sheriff busted into Semayne's house in order to serve a writ of eviction. The “great question in this case was if by force of capias or fieri facias at the suit of the party, the sheriff, after request made to open the door and denial made, might break [into] the defendant's house to do execution if the door is not opened.” The answer was: “admitting that the sheriff after denial might have broken into the house, ... it does not appear that be made any request to open the door of the house. Also the defendant, as this case is, has done that which he might well do by the law, scilicet [lawfully], to shut the door of his own house.” Judgment for defendant.

In reaching this conclusion Lord Coke observed that “although the sheriff is an officer of great authority and trust, yet it appears by experience that the King's writs are served by bailiffs, persons of little or no value.” Coke went on to hold “[t]hat the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose” and that if anyone should break in to rob or murder him, “the owner or his servants [may] kill any of the thieves in defence of himself and his house.”

Despite the fact that the case had nothing to do with the public carrying of weapons, it has been cited as interpreting the Statute of Northampton because in the course of the opinion, Lord Coke made the statement that

“So it is held in YB 21 Hen 7, fo 39, pl 50, [that] everyone may assemble his friends and neighbours to defend his house against violence; but he cannot assemble them to go with him to the market or elsewhere for his safeguard against violence; and the reason of all this is because domus sua cuique est tutissimum refugium [his own house is the safest place of refuge].

So what? This remark by Coke is what is known in law as obiter dicta -- a statement outside the parameters of the case and hence of no value as precedent. This is a bedrock principle of caselaw. Judges are apt to wax eloquent on any number of topics but if the dicta are not directly related to and needed for disposition of the facts at hand they irrelevant to what was actually decided.

Coke's dictum was in fact a judicial gloss on a distinct statute. Henry VII ascended the throne in 1457, so a statute dated to the 21st year of his reign would have been enacted in 1478. A previously discussed, that was the year that Henry VII enacted laws against livery and maintance which was directed at nobles assembling to challenge or impugn royal authority. Important as Semayne's Case was, even in dicta, it had nothing to do with Statute of Northampton or, consequently, the Second Amendment. More on point was,

Rex v. Harwood (1608)

In contrast to Coke's dictum about the unlawful assembling of men, the case of Rex v. Harwood contains the following notation:

Forasmuch as the Court is informed of the outragious misdemeanours etc. of James Harwood of Danby, who goes armed and weaponed with a lance-staff plated with iron, pistolls, and other offensive weapons, to the great terrour of people .... a warrant be made to attach the said Harwood and bring him &c to be bound &c. (Quarter Sessions at Malton (Oct. 4-5, 1608), in 1 North Riding Record Society, Quarter Sessions Records 132 (Rev. J.C. Atkinson ed., 1884) [case]

What is significant in this case is the absence of the phrase vis et armis or of any word indicating an affray or being hardy and the like. Thus, it is left unclear whether the “outragious misdemeanours” referred to the mere carrying of offensive weapons or to some other conduct involved. Gun control advocates want to interpret the statute to mean that the carrying of “offensive” weapons was itself the “terrour” to the people. But, as previously, discussed to the terrour of the people was a phrase denoting an affray. Gun control advocates also want to interpret the case as prohibiting a small laundry list of weapons. But the question then has to be asked whether Harwood was “going armed” with all of them at the same time. Rather than supposing that Harwood was arrested for being a walking armoury, it makes more sense to read “misdemeanours” as signifying a series of incidents in which Harwood was walking about brandishing weapons in an obnoxious manner.

Chune v. Piott, (1614) 80 Eng. Rep. 1161.

The first direct reference to the Statute of Northampton arose ten years later, in Chune v. Piott. In that case, the plaintiff brought a false imprisonment suit against one of London’s sheriffs. It was undisputed that the plaintiff and sheriff had encountered each other while the sheriff was pursuing an escaped prisoner. Upon coming into contact with the sheriff, the plaintiff “gave him ill words, and afterwards he thrust him up against the wall....” The sheriff accordingly arrested the plaintiff for breach of the peace.

Again, the case had nothing directly to do with the carrying of arms. The plaintiff had simply physically obstructed a sheriff in the performance of his duties. But whether the sheriff was performing his duties at the time depended on whether he had lawful reason to be pursuing the escapee in the first place. We are left to surmise that he was doing so for a supposed violation of the Statute of Northampton; for, in this regard, the court stated:

“Without all question, the sheriffe hath power to commit, est custos et conservator pacis, if contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, in terrorem populi Regis; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence.”

The concurring opinion agreed that a sheriff may arrest someone, “upon suspition,” of breaching the peace outside the sheriff’s presence.

These remarks are not dicta because there had to have been some reason for detaining the escapee in the first place in order for the defendant to be guilty of obstruction of justice. The basis for the arrest appears to have been the fact that the escapee was seen wearing arms in the sheriff's presence (i.e. “he sees anyone to carry weapons....”). If the defendant hadn't been seen wearing arms (i.e. if he wasn't seen at all, given the fact that he was wearing arms) there could hardly have been grounds for any detention. What is significant, then, is that neither of the judges felt that seeing the man to be armed was sufficient to make out valid grounds for arrest (and hence for the subsequent pursuit). Both opinions made clear that a breach of the peace or a suspicion thereof over and above been “seen” with weapons was required. Chune's case again illustrates that the phrase in terrorem populi regis was understood to require an actual “breach of the peace” over and above the mere fact of wearing arms.

Howard v. Bell (1616) 80 Eng. Rep. 241; Hobart 91 (K.B.).

A seemingly contrary result was reached in Howard v. Bell where several people were prosecuted and convicted for an unlawful assembly after organizing a large armed group in an effort to protect property rights. The court ruled that while “they might all join together in a quiet and peaceable manner,” they could be prosecuted for “assembling the tenants to the number of 200 in an open field, weaponed with swords and daggers, abiding three hours together [even if] nothing was proved done there by any of the defendants . . . .”

There is no question that, in this case, “nothing was proved done” other than assembling with arms. But the clear gravamen of the case was the fact of an assembly. That assembly involved 200 people who were gathered together to vindicate a property right. By what means? Could perhaps the swords and daggers have had something to do with it? On the facts of this case, the assembling itself was an implicit threat by conduct and, being armed, made the threat one of vis et armis. Cases involving assemblies of any sort always contain a potential for at least a tumult. They are not on point when it comes to an individual's right to bear arms, by and for himself.

What these cases show is that the rights and regulations regarding arms remained much the same in Jacobean England as before.

(God's Model Army)

As is well known, the conflict between James I and Parliament continued unabated and reached a crisis point during the reign of his son, as a result of which Charles I was beheaded and a republican Puritan Protectorate was established under the guidance of Oliver Cromwell. Although the Lord Protector did outlaw dancing, I have not read that he sought to protect people against fire arms. Of significance to the present inquiry, was Parliament's establishment of England's first modern, standing army.

As I have reviewed, local policing and national defence were based on a pool of on-call and armed citizens. Local constables organized watches and the Crown encouraged people to practice shooting bow or musket, on holy days and other times convenient. By the end of the Tudor era this system proved too unreliable for the types of wars that were being fought in Ireland or on the Continent. Thus, in 1572, the Crown established “trained bands” in each county under the control of a “lord lieutenant.” The idea was to establish a military reserve that would act as a “core” in or for activation. These trainbands would form the basis for the American colonial militias.

Evidently, much was left desired in the implementation. In theory, the Trained Bands met for one day's training in each of the summer months and London onlookers amused themsevles by mocking their sham fights. Just as bad, these “reservists” refused to serve outside their home areas.

Thus frustrated, Parliament decreed that the trained bands be remodelled on a national basis, replacing the old county associations with a unified military command and with soldiers serving full time with pay. They did not live in barracks but were quartered in homes and were in all other respects a standing army. At least in the beginning, they were infused with a jihadist Puritan zeal.

To put it summarily, Cromwell purged the Army of nobles and gentry, preferring instead to rely on the committed common man. (See “Self-Denying Ordinance.”) But, as fate would have it, the common man had radical ideas and the Army began to demand a republican form of government. It was this that resulted in the beheading of Charles I and abolition of the monarchy.

The Model Army has been praised as an exemplarary of discipline and efficiency. As usual, the truth is far more colourful. While they did evolve successful tactics in the field, there were constant complaints about lack of pay, in the absence of which soldiers resorted to self help. They showed just as much reluctance as the old militias against being sent to fight wars abroad.

The English didn't mind that locals, most of whom they would know, were armed and ready. What they minded far more was that men, whom they did not know and who were militarily organized were armed. Given that this army numbered 20,000 to 60,000 men over the course of its existence, this presented a far greater danger than over-sexed knights on a rampage after tournaments. In the end, the English tired of Puritan rule and in 1660 invited Charles II to come back and take his throne.

(The Protestant Whore)

The invitation came with certain understandings; in particular, that Charles II would rule with advice and consent of Parliament (what would become distilled into the formula of the King in Parliament) and that he would uphold the Established Church. All the rest was left to prudence and good manners.

The Restoration is presented as a time when the English, freed form the oppression of Purtinical Correctness, finally recovered their natural eboullience under a monarch who was more interested in sex than in statutes. Indeed, in order to maintain an appearance of an even-handed disinterest Charles kept two whores, a Protestant one and a Catholic one. When an angry mob attacked Nell Gwynne, she cried ““Pray good people be civil, I am the Protestant whore”

But as Gwynne's protest might suggest things were a little less cavalier beneath the surface. Protestant anti-Catholicism still simmered. Secretly Catholic and rather obviously pro-French, Charles II was very much aware that he was what one might call a “minority monarch.” He could ill afford the existence of standing, disciplined and very Protestant Army.

Over the course, of his reign Charles adopted a number of measures aimed at defanging the potential (read Protestant) opposition. He began by repurposing the militia to monitor the "motions" of persons of "suspected or knowne disaffection" and prevent their meeting or their stockpiling weapons. All arms and munitions in the possession of such suspects beyond what they might require for personal defense were to be confiscated. [*]

Later in the year Charles went further. In September, 1660, he issued a proclamation forbidding footmen to wear swords or to carry other weapons in London.[*] In December another proclamation that soldiers and others "that cannot give a good Account for their being here" were to leave London within two days and remain at least twenty miles away indefinitely.[*] At the same time the royal government launched a campaign to control firearms at the source. Gunsmiths were ordered to produce a record of all weapons they had manufactured over the past six months together with a list of their purchasers.

In November 1661, Charles went after his real aim: He ordered Cromwell's 60,000 veterans to leave the capital and not to "weare, use, or carry or ryde with any sword, pistoll or other armes or weapons."[*] In the Militia Act of 1662, Charles extended the power of militia officers to disarm suspects.[*n] 13 & 14 Car. 2, ch. 3 (1662-63).[*]

These regulations were clearly aimed at “gun control” but in citing them what anti-gun activists in the United States ignore is that they embodied political gun control. The disarming measures were aimed at dissenting Protestants and in particular potentially troublesome veterans. That there was no plan to generally disarm the public is illustrated by two cases of the time.

Tuberville v Savage (1669) 86 ER 684.

In this case Savage made insulting comments to Tuberville, in response to which Tuberville grabbed the handle of his sword and said "If it were not assize time, I would not take such language from you." Savage responded by poking out Tuberville's eye; and Tuberville brought an action for assault, battery, and wounding, to which Savage pleaded provocation. The court ruled that Tuberville had neither provoked nor initiated an attack on Savage. His language and gestures indicated that he was not going to attack Savage because judges were in town and the courts were in session. Therefore Savage's asserted self defence was an unprovoked attack and he had to pay damages for the lost eye.

What is interesting about this case, in the present context, is that it shows that Tuberville was personally armed, even as the courts were in session. Not a single mention of the Statute of Northhampton.

The cause of the animosity between Tuberville and Savage is unstated. One might speculate that it had something to do with religion, but there is no way of knowing. Not so with,

Knight's Case (87 Eng. Rep. 75 (1686) and 90 Eng. Rep. 330.)

In this case, Sir John Knight had been assaulted by irrate Catholics. In response he took to arming himself with a firearm. One Sunday, Knight took his guns to church. James II, who was Catholic and now king, ordered that he be prosecuted for violating the Statute of Northampton, under the charge that he “did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects, contra formam statuti.” At trial the Chief Justice of the King’s Bench observed that the Statute of Northampton had “almost gone in desuetudinem, yet where the crime shall appear to be malo animo, it will come within the Act.” Knight was acquitted (because it did not come within the act, because there had been no malo animo).

In the second report of the case, it was reported that the Chief Justice said that “the meaning of the statute of 2 Edw. 3, c. 3, was to punish people who go armed to terrify the King’s subjects” (87 Eng.Rep. 75.) The two reports of the case are entirely consistent and make two things clear: (1) the statute had not been enforced; and (2) what was prohibited was carrying arms with the intent to “terrify” people. In other words, it was a statute aimed at violence or, at a minimum at at malicious brandishing.

Knights Case, is relied on by gun-rights activits and rightly so. First and on its facts, it is directly on point. It did not involve armour or assembling but very simply being armed with a pistol for self defence; and, moroever, being so armed in church, during divine service and presumably on the street getting there. Second, the case tells us unequivocally that in terrorem populi meant in order to terrify and signified a malicious intent (malo animo). Being armed in public was not itself a crime.

That said, fairness requires taking note of the social and political currents running under the decision. The case arose two years before the Glorious Revolution. The country was at a fever pitch of hostility between Protestants and Catholics. It is fairly evident that the King (or his officers) were out to get Knight. But by the same token, although we do not know for sure, it seems evident that the judges were Anglicans and thus part of the institutional resistance to James II. Had they been Catholics and partisans of the king, there can be little doubt as to how they would have interpreted the statute.

The Borrisokane Incident

illustrates the point. In this case, a rumour spread among the Protestants of Boorisokane, Ireland, that local Catholics were planning to massacre the protestant population. The Protestants in the vicinity armed themselves, gathered inside the town and waited. After several hours when no attack materialized, they all went home. The rumour-mongers were prosecuted, but so too sixty of the Protestants, of whom only 10 were convicted. The pro-Catholic Crown was displeased at the low conviction rate and made inquiry as to why the jury had been instructed that “any number of people armed as they pleased might meet [] provided they did no unlawful act.” One judge replied that the offence of unlawful assembly required an intent to do an unlawful act. The other trial judge disagreed and reported that the judges had not extended this doctrine to armed groups and that “the very appearing with arms is an offense.” (Reported in,Tim Harris, The Right to Bear Arms in English and Irish Historical Context.)

Some have taken the phrase “appearing with arms” out of context so as to infer a prohibition against individual carry. The facts of the case do not bear such an interpretation. Legally, the case stood for no more than a split opinion. Politically it illustrates how judicial opinion was influenced by political affiliation and opinion. James II was overtly protecting Catholics and prosecuting Protestants.

Under and below the technicalities of legal interpretation, what Stuarts Installment II illustrates is the political implications running under gun-control. As I have attempted to show, the cases and statutes simply do not support the arguments of gun-control advocates, which is that the Statute of Northampton prohibited "open-carry" and was at all times strictly enforced. However, there is no doubt that both Charles II and James II were trying to disarm their political opponents or people who were a "potential threat" (in today's lingo). That they might do so in a "tailored" fashion or under cover of various somewhat questionable legalisms, did not fool anyone as to what was really going on, and ultimately led to that form of impeachment known as the Glorious Revolution.

(The Protestant Wind)

The conflict between Crown and Parliament and between Protestants and Catholics reached its boiling point on 10 June 1688 with the birth of a son to James II, whom the King announced would be raised as a Catholic. Hitherto, the Anglican clergy and the Protestant establishment in Parliament had silently suffered James' “executive orders” and what they felt were his measures to re-establish the Catholic Church by stealth.

They grit their teeth and waited knowing that when James died the throne would pass to his very piously Protestant sister Mary. The birth a son, changed the calculus and the announcement that he would be raised openly and without any hypocrisy as a Catholic was... well.. a high crime and misdemeanour!

The revolt was on. The English had been at it since Mortimer's revolt and knew well how to assemble on heaths and town greens vis et armis ad terrorem regum. There was, to be sure both hesitation and resistance. The matter stood precariously in the balance as the insurrectionists (or patriots, if one prefers) awaited the arrival from Holland of William & Mary & Troops, and as James awaited the arrival of reinforcements from Ireland; or, more precisely, from the Catholics in Ireland whom he had been un-suppressing.

The winds played coy and no one went anywhere until, as if by the Grace of God, a westerly Protestant Wind filled the billows of Dutch sails. Mary and her husband William landed at the mouth of the Thames and proceeded to London. As James fled, he threw the Great Seal into the river, evidently hoping to make it impossible for William and Mary to rule. James made it to Ireland, where with French help he continued to fight for his throne until defeated at the Battle of Boyne in 1690.

There is danger in oversimplifying history. Just as Ireland was Catholic, the vast majority of the English were one flavour or another of Protestant. Distrusting the people, James II made use of both the Militia Act and the Game Act to disarm his Protestant subjects.[*] But the army on which James II relied was actually mostly Protestant. The “issues” with James had as much to do with trade and foreign policy as with his Catholicism. Stated another way, “Catholicism” was a label of convenience for a form of domestic administration that emulated the centralized French system of Louis XIV and for economic policies that favoured the landed Tories against the more commercially minded, expansionist Whigs.

Nevertheless, an anti-Catholic (and anti-Irish) hysteria swept the country. Most Englishmen genuinely feared that armed Jesuits were sneaking into the country in order either to blow up Parliament or to effect a Catholic restoration and takeover. Although exagerrated it was not entirely a lurid fantasy. Thus, when Parliament met at the end of the year to draw up its remonstrances and a Bill of Rights they included the now famous Article 6. After indicting James for “causing Protestants to be disarmed at the same time when papists were both armed and employed contrary to law” it declared that,

Protestants may have arms for their defence suitable to their conditions and as allowed by law.

The terms of the provision are fairly explicit. The word “their” indicates that a personal right to arms was guaranteed to all Protestants, which is to say to most of the country. Had Parliament meant “their” in the sense of collective defence, then there was no need for inclusion of the provision at all, since it is established that any government has the power to provide for its collective defence.

To those who may still wish to argue that the provision did not mean what it said or meant something else, I would only point out that when the Bill of Rights was declared, the war was in fact still on and when Parliament wanted to outlaw the possession of arms by individuals it knew how to do so. At the same time as it vindicated the rights of Protestants, it passed laws prohbiting any Irishman to own a weapon of any sort. And not only a weapon; the Irish were also prohibited from owning a horse, and provisions were made for the confiscation of both. At all cost the Irish had to be kept barefoot, defenceless and stupid.

The Glorious Revolution was a seminal event in both English and American history. The political settlement and the legal rights it established formed the basis for the American Constitution and the American Bill of Rights. Anyone who says otherwise (and there are, alas, quite a few) does not know what he or she is talking about. But, in so far as this review is concerned, the establishment of a constitutional monarch in a nation state, fell back on one of the most medieval of institutions: armed freemen ready and able to defend their persons and their country, the fyrd.

The Revolution of 1688 also represented an evolution of the way people thought about arms. The medieval obligation to be armed metamorphosed into a solid individual right to bear arms. The keeping of arms was still connected with municipal policing duties but the right was highlighted as subsisting in itself in individuals and correlated with rights of conscience.

(Indigesta Confusa)

Not surprisingly, the Revolution of 1688 and the Constitutional Settlement of 1701 provoked a renewed interest in legal scholarship and in settling what the law, after all the commotion, was. In the beginning of the 18th century a number of “commentarors” jumped into the fray. These restatements were sometimes in the form of a treatise, at other times in the form of a practical manual for justices of the peace or attorneys. These efforts were not official and were not legally binding; nevertheless they both reflected and shaped an understanding of the law.

One such summarizer was William Blackstone, the son of a silk merchant, who went on to study law and became a law professor. In 1765, in order to supplement his income, he decided to publish Commentaries on the Law of England. It would not be far from the truth to say that, at this time, the Law of England was a huge heap of parchments, gathering dust and piled without much rhyme or reason. Earlier compilations, such as Bracton's On the Laws and Customs of England, had been written 400 years before and were obviously out of date. In a non-pedantic way, Blackstone took what Bracton had called the indigesta confusa of English law and organized it into a coherent and common sense whole. Blackstone wrote in an unpretentious and everyday English avoiding antiquated legal jargon that lawyers only pretended to understand. One contemporary put it succinctly "Mr Blackstone is perhaps the first who has treated the body of the law in a liberal, elegant and constitutional manner. A vein of good sense and moderation runs through every page".

Blackstone's Commentaries offered one other advantage: they were concise. This was of particular significance in the colonies, where access to the “vast heap” of parchment was a practical impossibility. Not only was it all “over there” it was beyond anyone's time, money and effort to copy it all down and bring it over here. The Commentaries were a compact four volume set that any court house or country gentleman could own.

But Blackstone did more than compile. It is perhaps lost on us today, but to say that he treated the law in a “liberal” manner was actually to say that he was contextualizing English law within the new framework of liberal political philosophy. The Glorious Revolution marked the pivot from medievalism to the modern liberal state -- to the “Enlightenment” and the world view of Locke and Montesquieu. Blackstone's “liberal treatment” fit in perfectly with and, indeed, informed, the ideas of Madison, Jefferson, the other Founding Fathers and of literate Americans in general. Nowhere is this better illustrated than with respect to the Second Amendment.

As we have seen, as of the 18th century, the common understanding was that, beyond there being an expectation or duty, there was an individual right to keep and bear arms. The question next turned to whether limits could be put on the right, and this question revived interest in the Statute of Northampton.

For the reasons previously stated, when the text of the Statue of Northampton is read in hand, the meaning it had at the time it was written is really not in question: it forbade resorts to or displays of force or violence that terrorized people. Since intent is usually inferred from conduct, the statute embodied a malo animo requirement.

However, most later American judges and scholars tended to work off the works of 18th century commentators simply assuming that they knew what the law stated. As a result, the wrangle over the Second Amendment's precedents have gravitated around three interpretations of the commentaries. Did the phrase “to go by day and night with force and arms, in terrorum populi mean:

(a) to go about armed in order to terrorize people;

(b) to go about armed in such circumstances and manner as resulted in people being terrified; or,

(c) that going about armed was in itself a circumstance that terrified people

According to William Hawkins, one oft-consulted authority, the Statute of Northampton applied “where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People.” (1 Hawkins, Pleas of the Crown, 135  (1716-1721).) Elsewhere in the same treatise Hawkins stated that “no wearing of Arms is within the meaning of this Statute, unless it is accompanied by such Circumstances as are apt to terrify the People.” This view reflected hypothesis (b).

Some gun control advocates have cited Hawkins for the proposition that bearing arms was itself “such a manner” that terrorized people; in other words, hypothesis (c). But that is not what Hawkins said. What he wrote was some kinds of weapons (those which were “dangerous and unusual”), could be carried “in such a manner” that would “naturally” cause a terror. The limitation to “dangerous and unusual” arms implied that some other weapons were entirely exempt from the terms of the statute. The words manner and naturally signify a cause-effect relationship over and above mere carrying of certain weapons. If Hawkins had meant that carrying dangerous and unsual weapons (whatever they might be) were sufficient to make out a violation of the statute, then that was all that needed to be said and the following prepositional phrases were mere surplusage. Just as with statutes, the interpretation of anything requires that all words be given effect. Otherwise, one is just cherry picking.

Another influential commentator, Michael Dalton, wrote that if men were suspected of assembling armed for a riotous purpose, they should be warned that such conduct was prohibited by the Statute of Northampton; but if they “do depart in peaceable Manner, then hath the Justice no Authority . . . to commit them to Prison, nor to take away their Armour.” (Michael Dalton, The Country Justice 129 (1727).) Elsewhere he states “[a]n assembly of a hundred persons or more (yea though they be in Armour) yet if it be not in terror or affright to the people, and were assembled without any intent to break the peace, it is not prohibited by any of these statutes, nor unlawful. . . So the assembly of People, and their use of armour upon midsummer night in London, being only for Sport, is lawful; and though it be with a great Assembly of People and in Armour; yet it being neither an affright of the people, nor malum in se, nor to do any act with force or violence against the peace, it is lawful.” (Id. at 425.) Dalton's summary reflected hypothesis (a) and no more need be said.

On the other hand, according to Blackstone, "The offense of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the Statute of Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armor... (4 Blackstone 148-149 (1769). [Commentaries On Line]

Blackstone's summary comes close to stating hypothesis (c). By substituting “in a manner that” with the preposition “by,” Blackstone suggests that bearing dangerous and unusual weapons is that which terrifies good people and is therefore outlawed per se. However, later in his treatise, Blackstone wrote that the offence of going armed to terrorize the people required a justice of the peace to “bind all those to keep the peace who in his presence make any affray, or threaten to kill or beat another, or contend together with hot and angry words, or go about with unusual weapons or attendance to the terror of the people... by causing the person to post a surety as security for peace.” (Blackstone Commentaries 254-255.) Reading both sections together Blackstone's restatement becomes a blend of hypotheses (a) and (b)

In reality the difference between hypothesis (a) and (b) is of interest only to lawyers. The ordinary person might be excused for thinking that a person who goes about in a "manner" that threatens people intends to do so, which is probably mostly the case. However, for lawyers, (b) also encompasses situations in which a person might negligently or recklessly end up threatening people; the case in which the defendant claims that he didn't intend to harm anyone but just thought he was being funny by riding around waving a sword. The ordinary jury is not likely to be impressed or see the difference.

The importance these authorities acquire does not arise from whether they were correct or not in their interpretation of the law but rather from the fact that people relied on their restatements. Few at this time were going back to the dusty heap to read to brush up on their Norman French. In fact it is uncertain if even Hawkins or Blackstone did. Either way, these authorities have to apprised on their own merits.

It frequently happens in law that a phrase which is designed to summarize or clarify something becomes itself a bone of contention. And so the phrase “dangerous and unusual weapons” which was never used in any prior statute has become contested issue in the current debate over the Second Amendment. This phrase is a perfect example of the propensity of the English law to come up with composite terms that are designed to give a rhetorical impression of something but are not meant to be parsed literally. (There is actually caselaw on this point.) Phrases such as: cruel and unusual, or cease and desist, or depraved and malignant leave a field of fruitless bafflement if they are uncoupled so as to engender debates over whether it is possible to be depraved without being malignant, and so on.

Obviously any weapon is dangerous; The question is whether a sword lying on a table is “dangerous” in the same or a different way than a sword at the waist or one being waved about wildly. Far from settling anything, the word “dangerous” by itself leaves us standing at the starting point: is dangling sufficient or is waving required?

Because of this, attention has focused on the word “unusual.” Modern readers hear this phrase as signifying arms that are “strange and freaky.” In my view, “unusual” was not meant in the sense of weird or novel. The statutes we have reviewed were more than fairly specific as to the types of weapons prohibited -- Launcegays, Skull of Iron, privie coats, chain mail, Dagges, Handgunnes, Harquebuzes, Calliuers, crossbows and Pochet Dags -- far from being “weird” or “never before seen” were well known and commonplace. There was nothing “unusual” about them as objects. Moreover, the few cases we have on the point did not indicate that the defendant was using a strange or atypical type of weapon. With this in mind, it seems to me that “unusual” must be read as meaning “not usually done” or “not the usual practice” to do, “not customary.” Another way of saying much the same thing is that “unusual” was a catch-all label for all the types of weapons the statutes had previously listed. Carrying them was unusual precisely because carrying them was outlawed.

The real issue underlying all of this is whether (in the view of Hawkins or Blackstone) English law (and the Statute of Northampton in particular) imposed a strict liability against carrying arms in public. A strict liability statute is enacted usually because the lawgiver has decided that a certain type of conduct is so risky or so routinely triggers unwanted consequences that the act should be banned without requiring any proof of intent or even of damage. The above quoted statute of James I is an example of a prohylactic measure. But by the same token, strict liability statutes tend to be concise, and do not use words signifying a state of mind or even natural consequences. The thing in itself is punishable as such. End of story. Thus, if it is unlawful to merely be in or to assemble in a public place while armed, then the phrase in terrorrem populo (to the terror of the people) becomes surplusage. It is sufficient to ban assemblying while being armed. Period. There is no need to explain in the text of the statute that arms are banned because they terrorize people. By way of illustration take the case of statutory rape. Such statutes do not read: it is unlawful to have sex with a girl under the age of 16 to the distress of the minor. Such a wording would invite the defence that the minor was not distressed, etc. etc.. Such is the case with the in terrorem clause, and that is exactly the fallacy entailed in reading the Statute of Northampton as imposing strict liability. The consistant usage of this phrase (or its English equivalents) in statutes and commentaries indicates that the accused must do something that reflects an intent to engage in crime or inflict harm or that he must act in such a way that frightening people was a natural and probable consequence of his conduct in the circumstances. This was the actual meaning of the Statute of Northampton and, upon analysis, it was also actually the interpretation given by Hawkins, Dalton and Blackstone.

(In a Liberal Manner)

In the legal context, what is called the natural law derived from the old Roman ius gentium -- the law of all those other people who weren't Roman and over whom the Romans ruled. What rights did they have? In answering this question the Praetorian Prefects began to notice that the laws of the various people they were charged with governing coincided in many essential points with Roman law. There thus arose, as Cicero put it, “a law, not written down anywhere, but inborn in our hearts.” Or as Jefferson would say, an inalienable law.

The English were not impressed. Aside from Bracton, they always resisted dangerous and unsual doctrines from abroad. Give us our indigesta confusa!

However, the Enlightenment brought with it both a revived interest in Roman law and, more importantly, a desire to rationalize things within some grand scheme, in the Newtonian manner. And so Blackstone took the Protestant right to bear arms and turned it into a universal proposition.

As stated, Blackstone's legal consciousness included more than collating and distilling statutes and procedures. He was intent to schematize the pieces into a “philosophy of law” which began, (after introductory remarks on the nature of law), with the Rights of Persons and of these, in chapter one,

“Of the Absolute Rights of Individuals.”

“.... these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; . . . to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; ....” (1 Blackstone, Commentaries [§ 144 ]

Concisely and in plain English, Blackstone had published a Liberal Manifesto par excellence, and it is worthy of note that the fundamental rights Blackstone lists included the right to petition, the right of access to the courts and the right of “having and using” arms. These rights would become incorporated into the First, Second and Sixth amendments of the American Bill of Rights.

With respect to arms, Blackstone went on to say that the right is of course subject to “gentle and moderate” restraints to which “no man of sense or probity” could object. However and unmistakably alluding to the late Revolution, the right of having arms was also “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” (1 Blackstone § 139 )

Blackstone was not simply reframing English law into a liberal mold. By matching up specific statutes with general principles, he was also demonstrating how English statutes and customs reflected an unstated natural law. Distilling both, individuals have the

• right of personal self defence, against brigands and burglars

• right of collective defence, against tyrants and despots

matched up with the

• obligation to respond to the king's summons or the hue and cry

• obligation to refrain from promiscuous or threatening misuse of arms.

What I have listed as the two “obligations” encapsulate the Statute of Winchester and the Statute of Northampton and, broadly speaking, reflect the text of medieval law. The two “rights” reflect liberal principles which were derived less from any specific text than from the historical experience of the English. To be sure, Blackstone was not the first to return to theories of natural rights. John Locke adduced from the right of individual self-protection his justification of the right(s) of individuals to resist tyranical officials and, if necessary, to band together with other good citizens in overthrowing tyranny. (John Locke, An Essay Concerning the True Original Extent and End of Civil Government (Second Treatise of Government) (1694).) Getting into the spirit of things Montesquieu likewise condemned laws against firearms as in fringing the natural law of self defense. (Montesquieu, Spirit ofthe Laws at 224-25). All the same, in addition to summarizing and restating English law, Blackstone worked the confusion of law into the mold of liberal political philosophy and this, from the American perspective, was of foundational importance.

Savages & Tyrants

The debates at the constitutional convention in Philadelphia were, for the most part, between the Anti-Federalist proponents of State sovereignty and the Federalist advocates of a strong national government. This much has been well trod over.

However, Americans tend to forget how rooted their country was in English soil. They work back from the present to the past, rather than working from the further past to the past. The several colonies, later turned states, were to all functional purposes recreations of the noble and ecclesiastical estates in England. These latter were not just places where castles were built and nobles paraded around in armour on horses. They were economic units, corporate enterprises, owned and managed by the lord and his vassals. The disputes between the nobles and the monarchy were not just about personality and ambition, but over control of courts, production, taxation, and economic interests, particularly as these interfaced with foreign trade and war. This whole “constitutional organization” was transplanted to America.

Virtually all of the original colonies were established by royal charter -- a grant of land, from the monarch, to a person or a corporate entity. It was hardly different from William the Conqueror parcelling out conquered Saxon estates to his liege nobles. Of course, these colonial charters incorporated a democratic principle, but we ought not to make overmuch of this. John Winthrop, William Penn, Lord Baltimore, Lord Berkeley (New Jersey) were very much little lords. The case of New Jersey highlights the analogy. The area was granted by King Charles II, to his brother the Duke of York (later James II) who in turn granted it to Lord Berkeley who in turn granted parcels of lands to settlers in return for payment of an annual quitrent (a tax in lieu of personal services). One could not get more medieval than that. At the end of the day, the colonies became oligarchies but in form and function they remained great estates.

Thus, the disputes between the Crown and the colonies were a virtual replay of the disputes between the King and the barons. It was not merely a literary conceit that had the Colonists invoking Magna Carta; they were wrangling over the same sorts of issues as taxation, fees, licenses, services, boundaries ... all the nitty gritty beneath the splendour of legal theory. When James II sought to consolidate the colonies of New England into a single administrative Dominion, an organized mob of provincial “militia and citizens” assembled in Boston, stormed Government House and took the governor, Sir Edmund Andros and other officials into custody. This was America's contribution to the Glorious Revolution and it was rife with Purtian outrage and allegations of popish plots. When, in the next century, George III, extended Quebec into the Ohio Valley, it provoked the outrage of barons named Washington, Custis, Lee and Jefferson.

Now, in 1788, free at last from regal tyranny, the Americans found themselves once again fearing tyranny, this time from themselves. The Federalists wanted to replace the Crown with a strong central government. They had no objection to the form of English government, only its particular polices. The state oligarchies (for the moment allied with their respective demoi) were suspicious and wanted limitations and guarantees. And one of those guarantees was the rights of states to maintain a militia and of the people to keep and bear arms.

The various drafts of the amendments of the Second Amendment revolved around four issues: a prohibition against standing armies, the right of states to maintain their own “militia,” the rights of religious pacifists not to be obligated to serve, and the right of individuals to own arms.

The initial draft read: The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

The next to last version: A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

The inclusion of a right of conscientious objection did signify that military service in the militia was at least an element in the mix; however, the fact that it was ultimately dropped de-emphasized that very concept.

Thus, the final version: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

However, as noted at the outset, one of the facts that gets overlooked in our present day debate is that Bill of Rights was not intended as a nation-wide guarantee of rights. Throughout the 19th century it was taken for granted that the Bill of Rights “did not apply” to the States. In perfect Magna Carta style, the Bill was a limitation on national (aka “royal”) power. Even then, with the exception of the Sixth Amendment, the Bill did not grant rights, it prohibited their “infringement.”

But if that were the case, where were these rights to be positively found? In the Framers' mind-set, the repositories of rights individuals had were the state constitutions or, alternatively, the received custom and practice from England. Put another way, the Second Amendment doesn't settle the question, it only opens the door to the past: to the Assize of Arms, to the statutes of Winchester and Northampton, and to the Protestant right to keep and bear arms. So the question then becomes how did the colonists understand and apply English law?

The colonists were Englishmen to be sure but they were Englishmen in a strange, new and wild world. Although they are mythically portrayed as arriving with Bible in hand as rays shine down upon them, they were all, in fact, involved in quasi-military expeditions. How one conceive's his rights on a military expedition is not the same as how one would conceive them within the cocoon of established civil society. It was with this in mind that I stated at the outset that in coming to America the English returned not only to their Anglo-Saxon heritage but to primordial Anglo-Saxon times.

Thus, it is hardly surprising then that Connecticut, Maryland, Virginia South Carolina, and Georgia all required men to carry arms at church.  Plymouth Colony, prior to its merger with Massachusetts Bay, had also enacted a church-based firearm requirement in 1636, but its mandate was seasonal. Typical of such provisions was Maryland's

"No man able to bear arms to go to church or Chappell ... without fixed gun and 1 charge at least of powder and shot."

The Virginia ordinance is also interesting for the light it sheds on the meaning of “bear.” Among the words fought over in the present day debate over the amendment is the claim by gun control advocates that to “bear arms” was a phrase denoting military service. At same point it did acquire that usage, but the Virginia law, enacted virtually on setting foot in the New World in 1619, provided,

"[a]ll persons whatsoever upon the Sabaoth daye [who] frequente divine service and sermons ... [to] beare armes [and] bring their pieces swordes, poulder and shotte." 

Any colonist refusing to carry arms to church was subject to a fine of three shillings, payable to the church.

At least two colonies required carrying arms to other public public gatherings. For example a ordinance in Rhode Island provided: "It is ordered, that no man ... shall come to any public Meeting without his weapon."

Virginia, Massachusetts, Rhode Island, and Maryland all enacted some requirements for travelers to carry arms.

These ordinances can be interpeted in two ways. Either the colonists did not see any contradiction between them and English statutes prohibiting armed “affrays” or there was a contradiction and English laws supposedly prohibiting “carrying” were simply modified to suit local conditions. In my view, there was no contradiction. These mandatory carry laws simply mirrored the Statute of Winchester. As for Northampton,

Subsequent colonial legislation suggests that these "pray n' carry" laws fell into disuse as the colonies became more established. After Bacon’s Rebellion was defeated in 1676, Virginia forbade unauthorized assemblies of more than five armed men, but the law reaffirmed that individuals or small groups had the unfettered right to carry (An Act for the Releife of Such Loyal Persons as have Suffered Losse by the Late Rebells, 2 Stat. (Va.) 386 (1676-1677).

In 1686 (three years prior to the English Bill of Rights),East New Jersey enacted "An Act against wearing Swords, &c." in response to the "great complaint by the inhabitants of [the] Province." The Act provided that no person “shall presume privately to wear any pocket pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,” and that “no planter shall ride or go armed with sword, pistol or dagger” (An Act against Swords, &c., 1686 N.J. Laws 289, 289, ch. IX.)

By its terms ("privately") the Act only prohibited concealed carrying. The Act was no longer in force at the time of the Revolution, and presumably fell into disuse after the Bill of Rights (1688) affirmed the right of individuals to have arms for their defence. Various other colonies enacted versions of the Statute of Northampton. Contemporaneous with the above mentioned law, East Jersey also issued an ordinance instructing constables to arrest those who “ride or go arm’d offensively, or shall make or commit any riot, affray, or other breach of the King’s peace” [*] Eight years after New Jersey’s law, Massachusetts enacted its own version of the Statute of Northampton, authorizing justices of the peace to arrest anyone who “shall ride or go armed Offensively before any of Their Majesties Justices, or other Their Officers or Ministers doing their Office, or elsewhere.” (Mass. Laws 12, no. 6. ( 1694).) New Hampshire enacted a similar law. (5 1699 N.H. Laws.) Contemporaneously the Bay Colony outlawed affray, rioting, and disturbing or breaching the peace. (Mass. Laws No. 6, at 11–12 (1692).) In 1786, Virginia enacted a prohibition on the public carrying of firearms that was lifted verbatim from the Statute of Northampton. The Virginia statute provided that "no man, great nor small, ... [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country." (Va. Laws 33, ch. 21 (1786).)

These enactments indicate that the Colonists uniformly understood the Statute of Northampton to prohibit offensive use or displays or weapons and that it did not strictly prohibit any carrying of arms. As if to remove all doubt, prior to the adoption of the Constitution, the constitutions of five states (Vermont, Massachusetts, Pennsylvania, and North Carolina) contained an express guarantee of the individual to keep and bear arms. Article 13 of the Pennsylvania constitution guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the state; ...” Art. 15 of the Vermont constitutioin was identical. Art 17 of the Massachusetts constitution provided that “[t]he people have a right to keep and to bear arms for the common defence.” North Carolina was to the same effect.

Five states (Virginia, Maryland, Delaware, Georgia and Rhode Islanc) had provisions for the maintenance of a popular militia. Article 13 of the Virginia Constitution provided that “a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.” Article 25 of the Maryland constitution was identical. Article 35 of the Georgia constitution did it by implication, referring to the upkeep of a militia in each county. Likewise, article 28 of the Delaware constitution provided that no muster of “the militia” could be made on election day. That same article prohibited any individual from appearing armed at polling place, the allowable implication being that individuals might otherwise be armed as allowed by law. Rhode Island's Founding Charter (1663) provided for the appointment of officers as requisite for “the leading, conducting and training up the inhabitants of the said Plantations in martial affairs, and for the defense and safeguard of the said Plantations.

Two states (Delaware and New) Jersey had provisions expressly incorporating the Common Law of England. Four states (New York, Connecticut, New Hampshire and South Carolina) had no mention of either the militia or an individual right to bear arms.

This overview shows that, in the main, the colonies hewed fairly closely the English scheme. Up until 1688 that scheme included an unwritten expectation that free men would possess arms for their personal safety and in order to be able to participate in collective defence. In 1688, that expectation was formalized as an individual right, albeit limited to Protestants. In the Colonies, that sectarian limitation was removed.

Historical hindsight always entails a risk of mis-perspective, in this case the subtle notion that the Americans incorporated or adapted English laws into their own. To speak that way (which is almost inevitable in view of the separation which did occur) is not accurate. The Colonists were Englishmen living in Crown domains. Their statutes reflected the broader law of England as much as any other. Of course a Viriginia statute would not supersede an Act of Parliament, nor would it be citable in, say, Liverpool. But that was hardly different than an Act for Wales not being applicable to Scotland. Englishmen in America no less than Englishmen at home were equally part of the historicity, customs and usages of the British people. Thus, the Massachusett's version of the Statute of Northampton is as much evidence of what that statute meant (and how it was understood) as the opinion of Lord Coke or Blackstone. Likewise, the five express colonial guarantees of the right to bear arms are also evidence how the English in general understood that right, putting aside the minor detail of those Catholics who refused to swear a loyalty oath.

And so walking through the door opened by the Second Amendment into the immediate and further past what is seen is a remarkable consistency stretching back to Saxon times. In the long light of history, the Second Amendment was virtually the Statute of Winchester, only that the obligation to be equipped with weapons of war was recast as a right. Whatever the various draft formulations, not one contested the personal right to have arms. (See To Keep & Bear Their Private Arms - 1982 Stephen P. Halbrook; Northern Kentucky Law Review. Originally published as 10 N. Ky. L. Rev. 13-39 (1982) )

That said, for the Colonists and the Framers, the personal right to have arms was not an abstraction; nor was it a “good” in itself. It was a right that drew its life from historical context and political experience which, in England's case, included the conflict between autonomy and authority.

The debates in Congress over the Second Amendment reveal three consistent themes:

• the self-evident right of individuals to have arms for their personal use and defence.

• an intense adversion to a standing army under the control of a central authority;

• a belief that militias comprised of free men was the best guarantee against tyranny.

From time immemorial those who raised a hand against the king do so in the name of right and tradition. The claims against John, against Edward, against the Tudors, against the Stuarts were always cast in the mold a vindication of right against royal tyranny. The rebels were not rebels; it was the king who was out-of-law; insurrection was simply the Hue and Cry on a national level.

Accordingly in 1768, in response to Crown searches and seizures of warehouses and ships, leading figures in Boston advised citizens to arm themselves which “is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.” (A Journal ofthe Times (March 17, 1769), excerpted in Dickerson, ed., Boston Under Military Rule at p.79.)

During the Constitutional debates, Madison confidently assured his fellow-countrymen that a free people need not fear government because of "the advantage of being armed, which the Americans possess over the people of almost every other nation." (Federalist Paper No 46.)

Similarly the Philadelphia Federal Gazette, on June 18, 1789, published a long exposition of the Bill of Rights and noted,

“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”

However, the difference between the colonists in America and the barons in England was the separation of an ocean. What would be the point, were it even possible, of sailing back to England in order to overthrow George III and replace him with George I of Virginia? No. There was a more expedient expedient

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them,”

This right of dissolution will not be found in the text of any statute; nor can it be anymore than it could strictly speaking be called a "civic" right. That is the reason why the polemicists for the Glorious Revolution, in best Ciceronian fashion, dredged up the natural law, rooted in historical experience, in order to justify their revolt. For there was no question that James II was the lawful sovereign. Whatever one might think of his policies, they were no worse than those of John, of Edward I and certainly far less egregious than those of Henry VIII. Eighty eight years later, the prevailing faction of Colonials decided that George III was at least as bad as James II, and followed suit.

Although not part of the Constitution the preamble to the Declaration of Independence contains the DNA of all other rights. The right of re-assembly, the right of association as first cause of society is, together with the right to howl and the right defend, comprise primordial rights which are precursors to everything else. But by the same token,the Second Amendment is not simply a guarantee provided by civil society, it also reflects an affirmation that the people shall have the means to preserve their rights or to assert their indepenence and dissolve. More than anything else the Second Amendment is not about “arms” but about “men” and their right to self-defence and hence to be free. It speaks to defence at an ever broadening compass: of self, of community, of state, and ultimately of the many against the one.

Wherefrom and Whither

Of what good is knowledge of the past? Utilitarians invariably assert that whatever “interest” the past might have its solutions are ill suited by radically changed conditions. “The Framer's could never have envisioned.....” is the lead-in phrase. It is argued, for example, that allowing cops to stop vehicles without a warrant is justified because the Framer's could never have envisioned the speed of modern Model-T cars. (Carroll v. United States (1925) 267 U.S. 132.)

I am skeptical of this line of argument. Speed is relative. The speed relation between a horse-drawn cart and a horse is at least equal to the relation between a car and a motorcycle. If the Framers wanted a mounted officer to gallop back to court to get a warrant, they would have expected the same of the motorcycle cop. The “inconvenience” is the same in either case; so too the risk that the miscreant will have lost himself in the interval. The speed of Model-T's is a red herring.

I am equally skeptical of such arguments when it comes to the question of men and their arms. It is not true that the Framers were unacquainted with the problem of bearing arms in crowded urban spaces, or that they were unawares of the risks posed by concealed carry. As we have reviewed, these problems existed as much then as now. The relative scale may have been different; the essence of the matter is the same.

Nor am I convinced that the Framers could never have conceived of the immensely technical and economically integrated militaries of today. The fact that yeoman were expected to take to the roads with their weapons over their shoulders “responding” to the king's call to arms, did not mean the armies in the 12th, 13th and 18th centuries did not require vast and intricate economic, logistical and technical mobilizations in order to fight wars. When one studies the actual mobilizations of these bygone days, what is striking is how similar the problems are.... and how taxing. It is not the absolute numbers that matter, but the relative ones.

But surely, it will be said, the Framers never could have conceived of the AR-15 assault-style! rifle. It has to be conceded that the suppressive fire power of fully or even of semi automatic weapons was something that men in the 18th century might fantasize about without having any notion of how to make it a reality. Had they been able to imagine it, they would have manufactured it, of that we can be sure. But the rhetorical point dodges the issue.

A skilled operator in the Revolutionary War using a muzzle loading rifle could fire three accurate shots a minute. Even by 19th standards that was slow, and not only slow but useless in a crowd which would seize the delay to fight back. But that was not the “rate of fire” that the Framers would have been limited to knowing.

People nowadays tend to think of swords as quaint things. They were not. A Saxon sword was an expensive, state of the art weapon that took time and skill to produce. Think of it as a long, firm, double-edged razor blade that could slice through flesh and bone as through blood-spurting butter. Wielded by a trained hand in a crowded space it could produce mass-carnage in seconds. In terrorem indeed.

A skilled bowman at Agincourt could fire 10-15 arrows a minute, with an average effective distance of 100 yards. A single-shot bolt action rifle can fire 30 aimed rounds in 60 seconds, double the rate, with an average effective range of about 200 yards. Total mortality obviously depends on a host of variables; but, for contrast, America's first mass shooter, Charles Whitman, a former Marine sharpshooter, shot and killed 14 people over the course of 90 minutes, using a Remington 6mm bolt-action rifle. None of this was beyond the range of expectations of an eighteenth century person.

The introduction of automatic weapons resulted in a theoretical quantum change in kind; however, many gun-control enthusiasts are confused by the terminology. A semi-automatic is one in which the bullets load automatically from a magazine or cartridge into the firing chamber after each shot is fired. But the firing of the shot still requires a finger pull on the trigger. A fully automatic weapon is one which has automatic loading plus repeat shooting of rounds with one pull-and-hold of the trigger.

A fully automatic assault rifle has the mechanical capacity to fire 13 rounds per second or 780 rounds a minute. This astonishing cyclic rate is much diminished in real life situations because the amount of rounds is limited by magazine capacity (10-20-30), the time it takes to re-load a new magazine and overheating of the weapon. It is mostly used to force the enemy to keep his head down (suppressive fire). A semi-automatic rifle can fire 3 rounds a second; however, the practical rate of fire is further limited by finger muscle lag and endurance. Real world conditions result in about 60-90 rounds a minute with controlled fire and 30-60 rounds a minute for aimed fired with a well trained shooter. Thus a semi-automatic is two and half time faster than a bolt action rifle, far less than the mechanical cyclical rate of fire suggests.

The typical image of a mass shooting which is presented to the public is that of a lone assailant with an AR-15 falling upon some gathering and spraying it with a hail of lead as bodies fall like bleeding dominoes. But the image is false. Such a scenario is only possible with a fully automatic or “burst-mode” weapon but military assault rifles, as opposed to assault-style rifles are not legally available to the public. What the public can purchase is a semi-automatic. Once this is understood, it can be seen that in terms of rate-of-fire there is little difference between a semi-automatic rifle and a semi-automatic handgun.

The obsession over “assault rifles,” is hype without a point. Virtually all modern firearms, including handguns, are semi-automatic and magazine loaded. The typical military grade rifle uses a 5.56 mm cartridge or its equivalent which is designed to produce maximum carnage wounds. Putting aside ballistic arcana, for general killing purposes a 5.56mm, .45, or 9 mm round will stop, kill or very seriously wound a human being, whether shot from a rifle or handgun. Simply put, a person aiming to kill multiple people can do so with or without a rifle and with or without even a semi-automatic. In fact, as defined, “mass shootings” could very well be accomplished with a revolver.

When it comes to statistics, the case is near hopeless. As Mark Twain might have pointed out, “statistics” are simply a mathematical form of rhetoric, larded with loose connective tissues such as “associated with,” “linked to,” and of course the ubiquitous “potential risks of.” “Guns kill more kids than cancer!” blasts one study, to which one might reply that “vehicle-related deaths” kill more people than guns. There is no agreed upon or consistent definition of a “mass shooting” and intentionally vague categories such as “gun-violence” are designed to impeded rather than facilitate analysis.

Omitted from the memes is that “gun-violence” includes suicides. According to the Pew Research Centre, 54% of all shootings in 2020 were suicides. (In Canada it was 80%). One might think that My Body My Choice advocates would champion the right to suicide instead of bumping up the stats for “gun violence.”

Using the U.S. Justice Department's definition of a “mass shooting” as one involving four or more fatalities, there were 172 such events from 1966 to 2019, which averages out to 3.2 mass shootings a year. According to the same DOJ source, handguns were used in 77% of the events and assault rifles in 25% of cases (although one does have to wonder who did the math).

Gun manufacturers hyped assault weapons in order to appeal to the mili-macho crowd. That same hype scared the flower garlands off the kumbaya-harmony brigades. But the essence of the problem lies not in the technique of lethality but in the psycholgies of deranged use, and this is something the Framers were certainly acquainted with because derangement is as old as the human race.

Almost by definition, a person who serially shoots strangers, is insane because there is no reasonable motive for doing so. Don Quixote (who for some strange reason, is a favourite liberal icon) was criminally insane, seeing as he would charge at people impelled only by the “reason of his unreason.” It makes no difference what “radicalized” Don Quixote, whether it was books of chivalry or white supremacist literature or Christian doctrine, a rational person understands the difference between fantasy and reality. Even a sane person who has bad motives will be restrained by reasonable assessments of cause and effect. A person who lives in the unreason of his delusions will not.

Ultimately, the gun control argument boils down to a parade of horribles coupled with equivocal statistics. It is certainly true that when deranged use of assault-style rifles occurs, the results are horrible. It presents the image of mowing down people in a hail of bullets. But what kind of mowing is it when a truck is rammed into a crowded open air market? Or, for that matter, when a knight miscreant gallops into a crowd swinging his long razor blade?

The problem with an argumentum ab horribilis is that if aberrational horror becomes the yardstick of legality, then nothing can be legal; for it is always possible to imagine some awful event carried out by a deranged actor. Thus, speaking of free speech, James Madison said,

“ It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” (Federalist Paper No. 10)

With bullets as with words, our focus should not be on whether an AR-15 is more lethal than a sword but on whether the aberrational risks are outweighed by greater good or more important considerations of political policy.

Drafting a constitution, the Framers were interested in essentials and, in particular, the essential of human nature. One needs to look behind the specifics to their underlying logic; or perhaps better said to the underlying social expectations the Framers had. To distill what this might have been, we need to step away from the Second Amendment and consider the Sixth.

As discussed, the Crown obligated townsfolk to maintain a watch and to join in the hue and cry when crimes were committed. As a compliment to this requirement, the jury was instituted as a mechanism of royal census-taking and inquest into the affairs of the town. Just as townfolk were required to join the hue and cry, leading men were summoned up to give account under oath (iuro) regarding things that had occurred during the previous year. Through subtle morphing, the king's subjects turned the jury into an independent grassroots institution, or as Justice Scalia put it, into “the circuit-breaker in the State's machinery of justice.”

Utilitarians like Bryer seek to rationalise the jury as a “fact-finder.” A more ludicrous “fact-finding” institution could hardly be imagined. Of course, a jury is elected in order to return a “true statement” (veredictum) on a question of fact, but it is at bottom a political institution which brings to bear communal input as to whether a person should be adjuged “guilty” or “not.” That is subtly more than just a “finding of fact.”

The point was famouly illustrated by Bushell's Case (1670) in which William Penn and conspiratorial cohorts were accused of preaching noxious doctrines in public. As a matter of fact there was no question that they had violated the law, but the jury refused to convict and were locked up until they returned a verdict “the court will accept.” On appeal, the Chief Justice Vaughn reversed and confirmed the principle of jury independence and its right to return a “perverse verdict.” As Justice Scalia put it,

One can certainly argue that [efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. (Blakely v. Washington (2004) 542 U.S. 296, 313.)

Leaving it to professionals” was not what the Framers were about. For example, the Federal Farmer of 18 January 1788 described the jury as "securing to the people at large, their just and rightful controul in the judicial department." The language with which the newly independent Americans talked about juries echoed the way they talked about arms. Just as they wanted ordinary citizen participation in the justice system, so too they expected “the people at large” to participate in policing and defence. When the First, Second and Sixth amendments are read together, an underlying principle begins to emerge.

It is a grave mistake, in my opinion, to take the Bill of Rights piecemeal as setting forth a mere collection of rights. It is a whole cloth woven from the legal, political and social experience of the British people, including those in America. This experience can be distilled as one of resistance to authority and participation in governance. The First, Second and Sixth amendments guarantee a triad of foundational rights: the right free speech and assembly to petition; the right of self defence and the obligation to participate in local and national defence, and lastly the obligational right to participate in the administration of justice. All of these righs are “circuit-breakers” but at the same time they insure raw, unfiltered popular participation in government.

The risks are always the same. Free speech can be used to libel, mislead, incite and inflame. The right of assembly can be used to rampage. A jury's verdict can be distorted by stupid ignorance or moved by prejudice and hate. A criminally motivated or crazy man can use his weapon to terrorize and kill. The Framers certainly understood that evil always exists as an exception to the good. But not withstanding the risks, they wanted speech to be free, juries to be drawn from the people and the people to be armed. Correlative with the idea of “the King in Parliament” was the idea of the sovereign individual in society -- that is, working through and with the many. Individualism has been far too emphasized in our culture.

The notion that the Second Amendment guarantees a personal right for its own sake, is miscontextualized. That right is an implicit expectation, but the whole context of the Bill of Rights is to establish the boundaries of a relation between government and the governed, and it is in that context and to maintain a certain balance that the right is guaranteed.

It is unquestionably the case that the keeping of arms was connected to the bearing of them in collective defence. But it is not true that “collective defence” was limited to service in a present day style “militia” or reserve military. As reviewed, the concept of collective defence presupposed the individual keeping of arms and included four things: the raising of the hue and cry (local policing); answering the call of domestic national defence; being deployed in armies overseas and, lastly, ad hoc collective resistance to perceived state illegality. All free citizens shared the duties of policing, militia action and military expeditions but these duties each presupposed the individual equipment and familiarity with the use of arms. Lastly, just as citizens could ban together to chase down thieves, they could ban together to guard against subversives against the state or subversion of liberty by the state. Madison was explicit on this point.

It is also the case that the Anglo-Americans had a strong aversion to standing armies howsoever designated. They would be appalled by our imperial military establishment and by our militarized police forces. They would have been scandalized that the police are issued fully automatic military weapons, capable of mowing down citizens; and they would have insisted on citizen participation and control of local policing. Indeed, bearing in mind the parity of lethality between civilian and military arms that existed in 1776, an originalist interpretation of the Second Amendment would allow civilians to purchase full automatics. Be that as it may, if we are to abide the vision implicit in the Bill of Rights, a true revindication of the Second Amendment would entail fundamentally rethinking how we provide for our domestic and national security.

And yes... to cut to the chase, I am talking about universal military or national guard service for at least one year, with no exemptions and prior to any higher education. And I am also talking about mandatory co-policing with the institutional police, such that (to cut even deeper) mature Black or Hispanic adults stand watch or ride along with the police. If we truly believe in the Constitution we must work to restore an equality of participation in civic administration.

Both sides of the present debate have misconstrued the amendment. Gun enthusiasts are wrong to think that the Second Amendment guarantees a “personal” right in isolation. The Framer's would have been appalled at “armed free speech” and English law clearly outlawed showing up at political rallies armed for action. It is true that the Second Amendment insures the ability to assemble on the commons green as was done at Lexington and Concord. But if that is what one is about, then one better be prepared to see it through and carry the day, or else be hanged.

Equally mistaken are gun-control advocates who argue that the Second Amendement guarantees the right of the States to form a militia and of individuals to sign up. Had the amendment wanted to confirm a state right to form a militia the guarantee would have stated: “ The right of states to raise and maintain a militia shall not be infringed.” It obviously did not say that. Nor was a constitutional amendment needed to guarantee the “right” of an enlisting soldier to be issued arms. Reading the amendment in this way is an absurdity.

Unfortunately neither side of this debate is interested in rediscovering or vindicating what our true legal and customary traditions were. Instead, they champion mostly idiocyncratic notions of what their "freedom" or "safety" require and how the amendment should conform to those notions.

More dangerous of the two are the so-called liberals who not only want to abolish the right to bear arms but also the right of free speech, in the name of safety and in order to prevent misuse and misinformation. Theirs is a deathly snow-globe vision of society where no one offends, no one gets hurt and everyone harmonizes their thoughts. It was precisely that sort of overweening state power that the Bill of Rights was aimed to forestall.

It is certainly the case, that not all speech is political and that the First Amendment protects the most mundane, insipid and vulgar talk. It is likewise the case that the Second Amendment protects the right to shoot at beer bottles and hunt moose. Lastly, it is true, that the average jury sits in judgement of the most routine and unimportant cases. But the fact that the trivial is included does not mean that the grander more important purpose was not contemplated.

The Bill of Rights is a call to participate in shaping our every day realities and our collective destiny. To this end it guarantees “elements of action” to the individual and imposes limits and conditions of the use of government power. We should neither indulge nor limit our rights but rather strive to realize their underlying expectation.

One hundred a fifty years ago U.S. Attorney General, Richard Henry Dana, Jr. (Two Years Before the Mast)urged,

We have got to choose between two results. With these four millions of Negroes, either you must have four millions of disfranchised, disarmed, untaught, landless, thriftless, non-producing, non-consuming, degraded men, or else you must have four millions of land-holding, industrious, arms-bearing, and voting population. Choose between the two! Which will you have?

What Dana said about African-Americans could be said about Hispanics, Asians and every other type of American. The results are ours to choose.

©2022, Barfo

Bibliography

(I had intended additional links in the text and a bibliography of citations and sources, but unfortunately must work for a living. I will add these as soon as I can, time permitting. Virtually all sources relied on were found for free on the internet.)