Wrenching Freedom From the King --The 1689 English Bill of Rights and the Right to Arms

It began as a duty, operated as a mixed blessing for Kings, and wound up as one of the "true, ancient, and indubitable"[5] rights of Englishmen. From as early as 690,[6] 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 himself.[7] 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[8] or by using them "in affray of the peace."[9] These limitations were construed to prohibit only the possession of arms "accompanied with such circumstances as are apt to terrify the people"[10] but not the mere "wearing [of] common weapons" for personal defense.[11]

The Tudor 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and handguns.[12] They were unsuccessful and, after first liberalizing the prohibitions, Henry VIII's government repealed them in 1546.[13] As the Tudor era ended, individual armament (typically with long bows) and an individual obligation to serve in the militia was the norm for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"[14] in England during a period when absolute, divine-right royal rule was expanding as the norm in continental Europe.[15](p.402)

In the 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,[16] possession bans ostensibly aimed at controlling illegal hunting, restrictions on personal arms possessed by the militia,[17] warrantless searches, and confiscations.[18] 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 revolution.

When William 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.[19] 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.[20] 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.

The 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.[21] 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."[22] Historian Joyce Lee Malcolm concluded that:

[t]he 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.[23]

By the time of the American Revolution, legislation and court decisions had made it clear that Englishmen had a real right to possess arms,[24] 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.[25]

Blackstone's 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 government tyranny.[26] 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."[27] 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"[28] 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.

From the 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.[29] 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."[30]









[5] See 1 W. & M., ch. 2 (Eng.)Hannis Taylor, The Origins and Growth of the English Constitution 415-17 (4th. ed. 1896).

[6] See David Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 3 Harv. J.L. & Pub. Pol'y 559, 562 (1986).

[7] 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 Rhys Powicke, Military Obligation in Medieval England: A Study in Liberty and Duty (1962).

[8] 7 Edw., ch. 2 (Eng.).

[9] 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.

[10] William Hawkins, Pleas of the Crown 267 (6th ed. 1788)

[11] Rex v. Knight, 87 Eng. Rep. 75 (K. B. 1686).

[12] See 19 Hen. 7, ch. 4 (Eng.); 6 Hen. 8, ch. 13 (Eng.).

[13] See 33 Hen. 8, ch. 6 (Eng.). See generallyRalph Payne-Gallwey, The Book of the Crossbow 31-37 (1995).

[14] Hardy, supra note 6, at 570.

[15] See, e.g.Sir John Fortescue, On Government (approx. 1497).

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 deuouir it.


[16] See Game Act of 1671, 22 & 23 Car. 2, ch. 25 (Eng.).

[17] See Militia Act of 1662, 14 Car. 2, ch. 3 (Eng.).

[18] See Hardy, supra note 6, at 571-79. See also Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994).

[19] See 1 W. & M., ch. 2 (Eng.).

[20] 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).

[21] See generally Malcolm, supra note 18.

[22] See 1 W. & M., ch. 2 (Eng.).

[23] See Malcolm, supra note 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. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1523-24 (1998).

[24] See, e.g., Rex v. Gardner, 87 Eng. Rep. 1240 (K. B. 1739).

[25]William Blizard, Disultory Reflection on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59-60 (London, 1785).


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 oppression.

William Blackstone, Commentaries on the Laws of England *143-44 (1979) (1765).

[27] Blackstone, Commentaries *82.

[28]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)).

[29] 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.

[30] Rex v. Dewhurst, cited in 1 John MacDonell, Ed., Reports of State Trials, N.S. 529-608 (1820)).