began as a duty, operated as a mixed blessing for Kings,
and wound up as one of the "true, ancient, and
rights of Englishmen. From as early as 690,
the defense of the realm rested in the hands of ordinary
Englishmen. Under the English militia system, every
able-bodied freeman was expected to defend his society
and to provide his own arms, paid for and possessed by
It appears that the wearing of arms was widespread. The
only early limitations placed on gun possession were for
the misuse of arms by appearing in certain public places
"with force" under a 1279 royal enactment
or by using them "in affray of the peace."
These limitations were construed to prohibit only the
possession of arms "accompanied with such circumstances
as are apt to terrify the people"
but not the mere "wearing [of] common weapons" for
monarchs tried to prevent hunting with crossbows, and later
with firearms, by commoners by setting a minimum annual
income from land as a condition of hunting, or of possession
of crossbows and handguns.
They were unsuccessful and, after first liberalizing the
prohibitions, Henry VIII's government repealed them in 1546.
As the Tudor era ended, individual armament (typically with
long bows) and an individual obligation to serve in the
militia was the norm for Englishmen. Historians view the
widespread individual ownership of arms as an important
factor in the "moderation of monarchial rule and the
development of the concept of individual liberties"
in England during a period when absolute, divine-right royal
rule was expanding as the norm in continental Europe.(p.402)
period leading up to the Glorious Revolution, the Stuart
monarchs adopted a radical policy of personal disarmament
toward those who politically threatened their royal
prerogatives. This included the militia of armed freemen as
well as direct political rivals. Through a series of
parliamentary enactments, they tried registration of
possession, registration of sales, hunting restrictions,
possession bans ostensibly aimed at controlling illegal
hunting, restrictions on personal arms possessed by the
warrantless searches, and confiscations.
By 1689, the Stuart monarchs had succeeded, not at full
disarmament, but at alienating their "allies" as well as
their opponents and losing their throne in a bloodless
of Orange and Mary arrived to begin their reign on England's
throne, the country's political leaders recognized the need
to rein in any tendency of the new monarchs toward the
excessive royal power the nation had just suffered under
James II. Thus, William and Mary were required to accept a
"declaration of rights" as a definitive statement of the
rights of their subjects. That declaration was later enacted
as the Bill of Rights.
The Declaration of Rights was prepared in great haste,
limited to noncontroversial matters, and viewed as a
statement of the existing rights of Englishmen. It contained
only two individual rights applicable to the general public:
to petition and to arms. Furthermore, it only effectively
limited the monarch, not the Parliament. Even though the
Bill of Rights was by its terms to be upheld "in all times
to come," nothing one Parliament does can constrain the
actions of subsequent Parliaments.
That was the problem with the Bill of Rights being enacted
as statute, however important a statute. The Anglo-American
legal world would not implement a genuine constitution until
1776, when newly-independent Virginia created her first.
experience under the Stuarts, demonstrating the political
uses of disarmament, convinced many in the Convention
Parliament that there was great danger to the security of
English liberties from a disarmed citizenry.
In Commons, member after member complained about the loss of
liberty (p.403)they had personally suffered when disarmed of
their private arms by actions "authorized" under the 1662
Militia Act, the 1671 Game Act, and various other laws.
Since the new monarchy was to be a limited one, the members
saw both a personal and national interest in the ability of
ordinary Englishmen to possess their own defensive arms to
restrain the Crown. After much discussion and numerous
revisions, the right to arms evolved into a statement that
"the Subjects which are protestants may have Arms for their
Defense suitable to their Conditions and as allowed by law."
Historian Joyce Lee Malcolm concluded that:
last-minute amendments that changed that article
from a guarantee of a popular power into an
individual right to have arms was a compromise
forced on the Whigs. The vague clauses about arms
"suitable to their conditions and as allowed by law"
left the way open for legislative clarification and
for perpetuation of restrictions .... But though the
right could be circumscribed, it had been affirmed.
The proof of how comprehensive the article was meant
to be would emerge from future actions of Parliament
and the courts.
By the time of the
American Revolution, legislation and court decisions had
made it clear that Englishmen had a real right to
even during times of turmoil such as the anti-Catholic
Gordon riots in London in 1780. The Recorder of London,
the equivalent of a modern-day city's general counsel,
gave this opinion in 1780:
The right of
his majesty's Protestant subjects, to have arms for
their own defense, and to use them for lawful
purposes, is most clear and undeniable. It seems,
indeed, to be considered, by the ancient laws of
this kingdom, not only as a right, but as a duty;
for all subjects of the realm, who are able to bear
arms are bound to be ready, at all times, to assist
the sheriff, and other civil magistrates, in the
execution of the laws and the preservation of the
public peace. And that right, which every Protestant
most unquestionably possesses, individually, may,
and in many cases must, be exercised collectively,
is likewise a point which I conceive to be most
clearly (p.404)established by the authority of
judicial decisions and ancient acts of parliament,
as well as by reason and common sense.
celebrated treatise lauded the individual right to arms
as one of the "five auxiliary rights of the subject,"
and explained that the right was for personal defense
against criminals, and for collective defense against
He further explained that "in cases of national
oppression, the nation has very justifiably risen as one
man, to vindicate the original contract subsisting
between the king and his people."
The Englishman's boast that he and his countrymen were
"the freest subjects under Heaven" because he had the
right "to be guarded and defended ... by [his] own arms,
kept in [his] own hands, and used at [his] own charge
under [his] Prince's Conduct"
was true. This did not mean, of course, that Englishmen
enjoyed perfect civil liberty, as those in the United
States frequently pointed out. Englishmen did, however,
enjoy much greater freedom and participation in
government than did the people of Continental Europe,
and it was England's conventional wisdom that the
freedom of the English people was closely tied to their
right to possess arms, and thereby deter any thought of
usurpation by the government.
day when the Stuarts fled to France, there were virtually no
restrictions on an Englishman's right to own and carry
firearms, providing that he did not hunt with them, for the
next two centuries. The only notable exceptions were the
Seizure of Arms Act and the Training Prevention Act, which
banned drilling with firearms and allowed confiscation of
guns from revolutionaries in selected regions.
The Acts were the product of social unrest related to the
Industrial Revolution, climaxing in the 1819 Peterloo
Massacre, in which government forces killed unarmed
demonstrators. The Acts expired by their own terms in 1822.
Even while the 1819 Acts were in force, the case of Rex
v. Dewhurst explained that the "suitable to their
condition" clause in the Bill of Rights' "Arms for their
Defense" guarantee did not allow the government to disarm
"people in the ordinary class of life."
- TURN TO CHAPTER III -
1 W. & M.,
ch. 2 (Eng.); Hannis
The Origins and Growth of the English Constitution
415-17 (4th. ed. 1896).
 See David Hardy, Armed Citizens,
Citizen Armies: Toward a Jurisprudence of the Second
Amendment, 3 Harv. J.L. & Pub. Pol'y
 See id. at
563-65. The word "militia" was not created until
Elizabethan times, around 1590, although the system of
popular defense had existed in some form for
approximately a thousand years. The fact that most
able-bodied males had national or local defense
obligations, using weapons supplied by themselves,
should not be taken to suggest that everything about
military service was egalitarian. Feudalism was anything
but. See, e.g., Michael
Military Obligation in Medieval England: A Study in
Liberty and Duty
 7 Edw., ch. 2 (Eng.).
 2 Edw. 3, ch. 3 (Eng.). This "Statute
of Northampton" reiterated the prohibition on misuse
by those who "go or ride armed by day or night" in
certain public locations. See id.
 1 William Hawkins,
Pleas of the Crown 267 (6th ed. 1788)
 Rex v. Knight, 87 Eng. Rep. 75 (K. B. 1686).
 See 19 Hen. 7, ch. 4 (Eng.); 6
Hen. 8, ch. 13 (Eng.).
 See 33 Hen. 8, ch. 6 (Eng.).
See generally, Ralph
The Book of the Crossbow 31-37 (1995).
 Hardy, supra note
 See, e.g., Sir
John Fortescue, On Government (approx.
Thai [the French peasants] gon crokyd, and ben
feble, not able to fight, nor to defend the
realm; nor thai haue wepen, nor money to bie
thaim wepen withall. But verely thai liven in
the most extreme pouertie and miserie, and yet
dwellyn thai in on the most fertile reaume of
the worlde. Werthurgh the French kynge hath not
men of his owne reaume able to defende it,
except his nobles, wich beyren non such
imposicions, and ther fore thai ben right likely
of their bodies; bi wiich cause the said kynge
is compellid to make his armeys and retinues for
the defence of his lande of straungers, as
Scottes, Spaynardes, Arrogoners, men of Almeyn
[Germans], and of other nacions, or ellis all
his enymes myght ouerrenne hym; for he hath no
defence of his owne except his castels and
fortresses. Lo, this is the fruit of jus reale.
Yf the reaume of Englonde, wich is an Ile, and
therfor mey not lyghtly geyte succore of other
landes, were rulid under such a lawe, and under
such a prince, it wolde then be a pray to all
other nacions that wolde conquer, robbe or
 See Game Act of 1671, 22 & 23 Car. 2,
ch. 25 (Eng.).
 See Militia Act of 1662, 14 Car. 2,
ch. 3 (Eng.).
 See Hardy, supra note
571-79. See also Joyce Lee
To Keep and Bear Arms: The Origins of an Anglo-American
1 W. & M.,
ch. 2 (Eng.).
 James Madison's greatest insight as he prepared
America's written Bill of Rights was that there is as
much threat to liberty from a popularly elected
legislature as there is from a monarch. See
Jack N. Rakove,
Original Meanings: Politics and Ideas in the Making of
the Constitution 290 (1996).
 See generally Malcolm,
1 W. & M.,
ch. 2 (Eng.).
 See Malcolm, supra
18, at 121.
Part II of this Essay is meant only to give a brief
summary of the legal foundation of the English right to
arms, and not to trace the complexities of its
development during the Stuart period. For readers who
want the full story, Malcolm's book is superb, as United
States Supreme Court Justice Scalia has recognized.
See Antonin Scalia,
A Matter of Interpretation: Federal Courts and the Law
136-37 (1997). For a critique of Malcolm's argument
that the Convention Parliament created a right to arms,
rather than recognizing a traditional right, see
David B. Kopel,
It Isn't About Duck Hunting: The British Origins of
Right to Arms, 96 Mich. L. Rev.
1333 (1995). For a response to Carl Bogus's
assertion that the 1689 Bill of Rights did not recognize
any individual right to arms, see David B.
The Second Amendment in the Nineteenth Century,
1998 BYU L. Rev. 1359, 1523-24
 See, e.g., Rex v. Gardner, 87 Eng.
Rep. 1240 (K. B. 1739).
William Blizard, Disultory
Reflection on Police: With an Essay on the Means of
Preventing Crimes and Amending Criminals 59-60
The fifth and last auxiliary right of the
subject, that I shall at present mention, is
that of having arms for their defence suitable
to their condition and degree, and such as are
allowed by law. Which is also declared by the
same statute 1 W. & M. st. 2 c. 2, and it
is indeed, a public allowance under due
restrictions, of the natural rights of
resistance and self-preservation, when the
sanctions of society and laws are found
insufficient to restrain the violence of
 4 Blackstone,
Malcolm, supra note
18, at 3 (quoting State
Tracts: Being a Further Collection of Several Choice
Treatises Relating to Government From the Year 1660 to
1689, at 225 (London, 1692)).
 1 Geo. 4, ch. 47 (Eng.). The Act applied
only in two cities and eleven counties that were thought
most vulnerable to sedition. See id.
 Rex v. Dewhurst, cited in 1 John
MacDonell, Ed., Reports of State Trials, N.S.