Originally published as 5 J. on Firearms & Pub. Pol'y 139-151 (1993). Reprints available from SAF at 206-454-7012 Professor Malcolm is the author of numerous books on English History including To Keep and Bear Arms: The Origins of an Anglo-American Right, which may be obtained from Amazon.com.
The Role of the Militia
in the Development
of the Englishman's Right
to be Armed —
Clarifying the Legacy
By Joyce Lee Malcolm
Joyce Lee Malcolm is an historian specializing in seventeenth century
English constitutional history. She holds a bachelor's degree from Barnard
College, a doctoral degree from Brandeis University and is a Fellow of the
Royal Historical Society.
Professor Malcolm's first book, Caesar's Due: Loyalty and King
Charles, was published by the Royal Historical Society and Humanities
press. She has recently completed a book on the origins of the Second
Professor Malcolm's work has been supported by the National Endowment for
the Humanities, the American Bar Foundation, Harvard Law School, Robinson
College of Cambridge University and the Huntington Library.
When it comes to the origins of the Second Amendment Americans seem to have
reversed the old adage that it is a wise child that knows its father. Our
Constitution's founding fathers are far better known to us than that
"mother country" from which those gentlemen sought, and with some
difficulty obtained, a divorce. This is doubly unfortunate: first, because the
founders' notions of liberty, including the right to be armed, were profoundly
shaped by the British model. And secondly, because the language in which they
couched the Second Amendment has become obscure. An examination of the English
right to have arms, the attitudes it embodied and the intent behind it, can
provide some badly needed insight into the meaning of our Second Amendment.
Clarifying the English legacy can help us clarify our own.
That aspect of the Second Amendment most in need of clarification is its
initial pronouncement: "a well-regulated Militia being necessary to the
security of a free state." While it must have seemed straight-forward
enough to its drafters, the shared understandings upon which it was based have
vanished. Two hundred years later we're no longer sure why is it there or what
it means. Was it meant to restrict the right to have arms to militia members,
to indicate the most pressing reason for an armed citizenry, or simply to
proclaim the necessity of a citizen-army to a free people. And what sort of
militia did the framers have in mind — a select group of citizen-soldiers,
or every able-bodied male citizen, or didn't it matter? Since the preference
for a militia, with all its strengths and failings, was part and parcel of our
English heritage, that heritage can help us determine the purpose of that
clause in the Second Amendment.
It is important to note at the outset that the English right to have arms is
phrased quite differently from our own right. It reads: "That the Subjects
which are Protestants may have Arms for their Defence suitable to their
Conditions and as allowed by Law." Clearly that language has complications
of its own, but the militia is not one of them for the very good reason that it
isn't mentioned either in the English right or in later justifications of that
right. Such is the zeal of those seeking to confine the American right to
members of the militia, however, that they have attempted to graft a
non-existent militia clause onto the English right. Roy Weatherup, for example,
insists the English guarantee, that "the Subjects which are Protestants
may have arms for their defence" actually meant: "Protestant members
of the militia might keep and bear arms in accordance with their militia duties
for the defense of the realm." With
all due respect Weatherup would have done better to ask why the militia was not
mentioned than to twist the English right out of all recognition. Why wasn't it
mentioned in England? Why was it mentioned in America? Let us see.
Its easy to forget that England had no standing army until late in the
seventeenth century and no police force until the nineteenth century. The
militia was one of a variety of peace keeping chores foisted upon the average
Englishmen for which he was required to have weapons and to be skilled in their
use. All Protestant men between the ages of sixteen and sixty were liable for
militia duty, but from the reign of Elizabeth I smaller numbers were selected
for more serious training, the so-called trained bands. These numbered some 90,000 men in England and
Wales. The militia was under the command of the King who appointed a lord
lieutenant, usually a local nobleman, to oversee the militia of each county.
The militia's task was defensive. It constituted a home guard to suppress riots
and, if need be, repel invasion.
The praises heaped upon the militia by philosophers and historians,
Englishmen and Americans, have obscured the fact that the militia was not
popular. Men resented having to serve, and tried to avoid spending their
leisure hours at mandatory target practice. Not surprisingly, there were
complaints of "to much bowling and to little shoting" and in the
1620s Charles I was obliged to close ale houses on Sundays to keep men at their
Militia assessments were also resented. Everyone was assessed for a
contribution of weapons in accordance with their income but rates were often
unfairly apportioned and cheating was common. Those assessed often supplied faulty weapons and
lame horses and those who served sometimes made off with militia equipment.
Nor was it any secret that the militia was a doubtful peacekeeper. Its
members sometimes sympathized with rioting neighbors they were sent to subdue,
and in wartime the entire force could be woefully amateurish. BUT, and this is
a large but, the militia was always regarded as preferable to a professional
army. Theoretical tracts and popular
opinion portrayed the citizen-soldier as fierce in the defense of home and
country but damned his professional counterpart as callous, expensive, and a
threat to the liberties of the country that employed him. "The Militia
must and can never be otherwise than for English Liberty, Because else it doth
destroy itself", wrote a member of parliament, while John Trenchard's
best-selling pamphlet found "A Standing Army...inconsistent with a Free
Government." As early as Magna
Carta English kings were promising not to use professional soldiers. The virtues of the militia may have been overblown
but subsequent events proved the validity of anti-army prejudice. During the
sixteenth and seventeenth centuries professional armies took a heavy toll of
both people and parliaments. European parliaments fell victim to ambitious
kings aided by ever larger armies while the enormous civilians casualties
caused by armies during the Thirty Years' War were not to be equaled until our
own century. Imperfect as the militia
was, it was far better than the alternative. The armies raised by the English
Crown from time to time were treated with grave suspicion, kept to minimal size
and disbanded as soon as possible.
England's Civil War in the seventeenth century, provoked by a fight for
control of the militia, drove both king and parliament to rely upon field
armies. Once the war was over the republican victors reduced the size of their
army and reinstated the militia. Given
the real danger of counter-revolution this militia of men sworn to defend the
new regime found its chief task was the prevention of subversion. Militiamen
were ordered to disarm and secure ... all Papists, and other ill-affected
persons that have of late appeared, or shall declare themselves in their words
or actions against this present Parliament, or against the present Government
established or have or shall hold correspondency with Charl(e)s Stuart, the Son
of the Late King, or any of his party ... ." Accounts from harassed royalists testify to the
thoroughness of this new style militia.
In 1660, the revolutionary wheel returned to its starting point: the
republic collapsed and monarchy was restored. Those who had supported the
republic were now suspect in their turn. Again a militia, this time of loyal
royalists, was crucial to the maintenance of order. Charles II had promised a
general amnesty but his supporters feared: "many evil and rebellious
principles have been distilled into the minds of the people of this kingdom,
which unless prevented, may break forth to the disturbance of the peace and
quiet thereof". The reconstituted
militia went straight to work and we learn that "divers persons suspected
to be fanaticks, sectaries or disturbers of the peace have been assaulted,
arrested detained or imprisoned and divers arms have been seized and houses
searched for arms." The Militia
Act passed by a royalist parliament in 1662 perpetuated the trend started under
the republic but granted the militia even broader powers to disarm Englishmen.
Any two deputies could search for and seize of the arms of anyone they regarded
as "dangerous to the Peace of the Kingdom." This definition of who
could be disarmed was less precise than in any earlier militia act. It is
important to note the republican and the Restoration militia were comprised, as
far as possible, of men with politically correct views. They were, to this
extent, not general, but select, politically oriented militia.
It didn't seem to occur to the parliament that crafted this act that the
militia might be used against them. After all their enemies and the king's
enemies were identical, and many MPs were militia officers themselves. But we
historians are professional "Monday morning quarterbacks" and
Professor A. Hassell Smith, for one, realized the militia acts "provided a
sound militia system which could be misused by the Crown."
The militia's power to disarm suspicious persons was part of a broader
campaign to restrict weapons. The import of firearms was banned, a license was
required to transport guns, and royal proclamations forbid anyone who had
fought for parliament from carrying weapons. Gunsmiths were ordered to submit
weekly lists of those who bought the weapons they made. Lastly, in 1671 a game
act was passed which, for the first time, made it illegal for anyone
unqualified to hunt — anyone with less than £100 a year in income
from land — to have a gun. Hunting
had long been a privileged activity and previous game acts had banned devices
designed exclusively for hunting. But guns had legitimate purposes and had only
been confiscated if actually used in poaching. The 1671 act was to be enforced
by the country gentry and their gamekeepers, not the king. This strange
legislation doesn't square with the subjects' peacekeeping duties and, if
strictly enforced, would have disarmed not only some 90% of the country
population but all professionals and merchants whose income was not from land.
But there seems to have been no attempt to enforce it. The real aim may have
been to give gentry the power to disarm Catholics who, ever since the
Reformation, were believed to be conspiring to overthrow the government. As
with the militia acts, parliament had provided a tool that could be used by the
The potential these acts might have for the Crown may have escaped the
notice of parliament but was not lost on the Stuart kings. Starting in 1680
Charles II used the militia to disarm leading Whigs. His successor, James II,
purged the militia itself, removing many lord lieutenants and hundreds of
Protestant officers and justices-of-the-peace who were less than enthusiastic
about his religion and policies, frequently replacing them with Catholics.
Those gentlemen summarily sacked by the king often suffered the added indignity
of being forcibly disarmed. James even
attempted to use the game act of 1671 to achieve a more general disarmament. In
December 1686 the lord lieutenants of six northern and western counties were
informed "that a great many persons not qualified by law under pretence of
shooting matches keep muskets and other guns in their houses." They were commanded "to cause strict search
to be made for such muskets or guns and to seize and safely keep them till
further order." Even if James had not begun to purge the lieutenants who
received these orders, it is unlikely they and their men could have carried out
such an ambitious and risky task. But
the mere threat was enough. The "governing classes" had been made
painfully aware that two acts of parliament, the militia act and game act, had
given the Crown the ability to disarm law-abiding subjects. Possession of
firearms had been a duty and a privilege. Now it seemed to them an essential
The chance to establish such a right came two years later when outrage at
James had reached such a height that William of Orange and his wife, James's
daughter Mary, were persuaded to come to England to "rescue" the
rights and religion of Englishmen. As thousands of his subjects flocked to join
William, a panic-stricken James fled to France. What England calls its Glorious
Revolution had begun.
A convention was elected to settle the throne and restore the ancient
constitution. Its members were determined to protect their liberties from
future royal encroachment. High on their agenda of outrages suffered, they
placed the disarmament of law-abiding citizens. Their discussions did not lay
the blame entirely at the king's door, however. They faulted the Convention of
1660 that had restored the monarchy "for taking no better care" and
angrily denounced the Militia Act of 1662. "An Act of Parliament",
Sir John Maynard fumed, "was made to disarm all Englishmen, whom the
Lieutenant should suspect, by day or night, by force or
otherwise." Sir Richard Temple
agreed the militia act had given the Crown "power to disarm all England.
Hugh Boscawen complained that the militia, "under pretence of persons
disturbing the Government, disarmed and imprisoned men without any cause"
adding, "I myself was so dealt with." The Game Act was not
The Convention decided to separate rights it wished to affirm from
grievances that would need new legislation, and concentrated exclusively
on the assertion of rights. Revision of the militia act, therefore, was left to
a future parliament. The Declaration of Rights they drew up listed King James's
supposed violations of his subjects' liberties and paired these with
reassertions of allegedly injured rights. One complaint in an early version
read: "The Acts concerning the Militia are grievous to the
Subject." By the final version
this complaint had been recast to point specifically to disarmament and shift
the blame from an act of parliament to James who was accused of having
trespassed upon their liberties, "By causing several good Subjects, being
Protestants, to be disarmed, at the same time when Papists were both armed and
imployed, contrary to Law."
This complaint was balanced in the list of proclaimed rights by the claim
that "The Subjects, which are Protestants, may have Arms for their Defence
suitable to their Conditions and as allowed by Law." The first version of
this right stated that it was necessary for the public safety that Protestant
subjects "provide and keep Arms for their common Defence". A second
version dropped the reference to public safety and necessity and merely
announced that Protestants "may provide and keep Arms, for their common
Defence". The final version
omitted the phrase "their common Defence" in favor of "their
Defence" and added the clauses "suitable to their Conditions, and as
allowed by Law." To J.R. Western, who has written extensively on the
militia, the right had been "emasculated"' "The original wording
implied that everyone had a duty to be ready to appear in arms whenever the
state was threatened. The revised wording suggested only that it was lawful to
keep a blunderbuss to repel burglars." To Western's regret the English right to have
arms was an exclusively individual right.
The language of the English right to have arms, as already noted, was open
to interpretation, but its intent became crystal clear in the years following
its enactment. Although the Game Act of 1671 had not been specifically
mentioned during Convention debates all new game acts dropped guns from the
list prohibited devices. And despite the reference to weapons suitable to one's
condition and as allowed by law in practice the right of all Protestants to
have weapons was confirmed. As London's chief legal adviser explained to the
mayor and council in 1780' "The right of his majesty's Protestant
subjects, to have arms for their own defence, and to use them for lawful
purposes, is most clear and undeniable.
In the course of the eighteenth century the right of individual Englishmen
to be armed began to be regarded as protecting not only the individual but the
constitution itself. The Whigs had pressed for this viewpoint during the
debates on the Bill of Rights but it was not until 1765 that William
Blackstone, in his Commentaries on the Laws of England, accepted this
crucial function of the right to be armed, at a stroke transforming it into
orthodox opinion. Blackstone lists all the rights of Englishmen then observes:
But in vain would these rights be declared, ascertained, and
protected by the dead letter of the laws, if the constitution had provided no
other method to secure their actual enjoyment. It has therefore established
certain other auxiliary rights of the subject, which serve principally as
outworks or barriers, to protect and maintain inviolate the three great and
primary rights, of personal security, personal liberty, and private
To enable them to vindicate their rights, if these were violated, Blackstone
explains that the subjects of England were 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
We should note that neither the Whigs nor Blackstone mentioned in the
militia in this regard. But what of the militia? Despite the complaints about
the powers in the Militia Act that were "grievous" to Englishmen,
that act remained on the books, unaltered, for many more years. Presumably
since individuals were protected in their right to be armed there was less
urgency about militia reform. Parliament's belated attempts to revise and
revitalize the militia failed to transform it into the home guard idealized by
the philosophers. In the course of the eighteenth century the militia's
peacekeeping role was gradually taken over by the national army.
To sum up, the role of the militia in the development of an Englishman's
right to keep firearms was a negative one. Notwithstanding the genuine
sentimentality it engendered, the militia was, at base, an organ of the central
government, and its personnel and powers were shaped by the militia act of the
moment. Its members could be selected to reflect a particular political
viewpoint, as had been the case in the 1650s, 1660s and late 1680s. The right
for Englishmen to be armed was asserted, not as Weatherup maintained, to ensure
arms to the militia, but to prevent the disarming of law-abiding subjects by
the militia. Even after an armed population was recognized as having the larger
purpose of protecting English liberties the militia is not mentioned as the
source of redress. Blackstone refers only to the right of the individual
While prepared to ignore the militia, the drafters of the English Bill of
Rights were anxious to keep professional armies from undermining English
liberty. To that end they devised another supposedly ancient right: "That
the raising or keeping a standing Army within the Kingdome in time of Peace
unlesse it be with Consent of Parlyament is against Law." Professional
soldiers were openly branded a regrettable necessity and handled with extreme
caution. Nearly sixty years later Blackstone still considered the Crown
regulars "as temporary excrescences bred out of the distemper of the
State, and not as any part of the permanent and perpetual laws of the
kingdom." The authors of the Bill
of Rights settled the power of the sword with these twin measures — the
people were to be armed, the professionals were to be kept under strict
Where does this leave the American Second Amendment, with its reference to a
well-regulated militia necessary to the security of a free state, and its
insistence that the right of the people to keep and bear arms shall not be
infringed? I would argue that the Second Amendment mirrors English belief in
the individual's right to be armed, the importance of that right to the
preservation of liberty, and the preference for a militia over a standing army.
The main clause of the Second Amendment preserves one of those rights of
Englishmen we Americans had fought for, and preserves it as Blackstone
understood it — a right to be armed for individual self defense and to
preserve essential liberties. Americans had never copied English restrictions
on the right so it was not surprising that in contrast to the English right's
religious and class restrictions and caveat that the right was "as allowed
by law" the American amendment forbid any"infringement" upon the
right of "the people" to keep and bear arms.
Secondly, Americans inherited English antagonism to professional armies and
English preference for a militia, always mindful that a select militia could be
dangerous. Nevertheless, just as the English tolerated a standing army, the
framers felt compelled to structure a permanent army into the Constitution to
guard the frontiers. As a counterbalance to the army they felt the militia must
be made a viable force. "As the greatest danger to liberty is from large
standing armies," Madison argued, "it is best to prevent them by an
effectual provision for a good Militia." For that reason control over state militias was
granted to the central government.
The combined military power this gave the central government caused much
dismay. So too did the absence of any statement in the Constitution about the
undesirability of standing armies in time of peace. Many state bills of rights
had copied the English Bill of Rights provision against a standing army in time
of peace without consent of the state legislature. Five of the eight states
that proposed specific amendments urged the federal government to include a
similar or stricter prohibition. Some asked that a two-thirds or even a
three-fourths vote of members present in each house of Congress be required to
approve a standing army in time of peace.
The framers had considered such a clause but worried about its consequences.
George Mason feared "an absolute prohibition of standing armies in time of
peace might be unsafe" but wished "at the same time to insert
something pointing out and guarding against the danger of them." Madison urged the Constitution
"discountenance" armies but only "as far as will consist with
the essential power of the Government on that head". And Governeur Morris
argued that might set "a dishonorable mark of distinction on the military
class of Citizen." The framers had
failed to find an appropriate strategy in 1787.
When the Constitution was amended a different approach was tried, a strong
statement of preference for a militia. This was surely more tactful than an
expression of distrust for the army. Why is the militia clause in the Second
Amendment? Quite simply to state, as it quite clearly does, that it is the
militia, and not the army, that is necessary to the security of a free state.
What sort of militia did the framers have in mind? As the amendment went
through various drafts Madison's description of the militia as
"well-armed" and a later stipulation that it be "composed of the
body of the people" were removed, either as sufficiently understood or
unnecessary since the right of the people in general to have arms was not to be
infringed. As in the English right the
shape of the militia was not crucial.
The Federal Gazette and Philadelphia Evening Post of Thursday, June
18, 1789, in language reminiscent of the English legacy, explained to readers
the purpose of the article which became the Second Amendment:
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 ... in their right to
keep and bear their private arms.
1. Roy Weatherup, "Standing Armies and Armed Citizens:
An Historical Analysis of the Second Amendment", Constitutional Law
Quarterly, vol.2 (1975), pp- 973-4.
2. See C. Cruickshank, Elizabeth's Army (Oxford, 2nd
ed. 1966), pp. 24-5.
3. See G. Roberts, The Social History of the People of
the Southern Counties of England in Past Centuries (London, 1856), pp.
4. See A. Hassell Smith, "Militia Rates and Militia
Statutes,1558-1663" in The English Commonwealth, 1547-1640: Essays
in Politics and Society Presented to Joel Hurstfield ed. Peter Clark, et. al.
(Leicester, 1979), pp- 93-100.
5. The history of this national prejudice is recounted by
Lois Schwoerer in "No Standing Armies!": The Antiarmy Ideology in
Seventeenth-Century England (Baltimore, 1974).
6. T.E., "A Letter from a Parliament-Man to His
Friend" (London, 1675) in State Tracts (1693), p. 70, John
Trenchard, "An Argument shewing that a Standing Army Is Inconsistent with
A Free Government, and absolutely destructive to the Constitution of the
English Monarchy" (London, 1697). The Trenchard quotation is taken from
7. See Magna Carta (1215), article 51.
8. For information on the so-called military revolution
occurring in Europe during this period see Michael Roberts, "The Military
Revolution," in Orest Ranum, ed. Searching for Modern Times, vol.
l, 1500-1650 (New York, 1969), pp. 220-30.
9. See CSPD, 1649-50, pp. 109, 112, 127, 199, 205.
10. C.H. Firth and R.S. Rait, eds., Acts and Ordinances
of the Interregnum, 1642-1660, 3 vols. (London, 1911), 2:397-402.
11. This justification for the activities of Charles's
impromptu militia and its treatment of suspects comes from 13 Car. II, c.6
"An Act declaring the sole right of the Militia to be in the King; and for
the present Ordering and Disposing the same", July 1661.
13. A. Hassell Smith, "Militia Rates and Militia
Statutes", 1558-1663, The English Commonwealth: 1547-1640, ed.
Peter Clark et. al. (Leicester, 1979), p. 110.
14. 22 & 23 Car. 2, ch. 25(1671).
15. See J. Western, The English Militia in the
Eighteenth Century: The Story of a Political Issue, 1660-1802 (London,
1965), pp. 48-51; CSPD, 1686-87, (London, 1964), p. 314.
16. See Sunderland to Burlington, December 6, 1686,
CSPD, 1686-7, p. 314.
17. Of the six lord lieutenants whose orders to execute the
Game Act survive, four were displaced within the year for their unwillingness
to remove the Test Act against Catholics.
18. Somers MS in Miscellaneous State Papers from
1501-1726 ed. Philip Yorke, Earl of Hardwicke, 2 vols. (London, 1778), 2:415.
19. For the complaint against the militia acts see
Schwoerer, Declaration of Rights, p. 299.
20. "The Declaration of Rights", 12 February
1688/89. For a fine, detailed account of the drafting of the Declaration of
Rights see Lois G. Schwoerer, The Declaration of Rights: 1689
21. "Amonymous Account of the Convention Proceeding,
1688", Rawlinson MS D1079, fol. 8, Bodleian Library, Oxford; House of
Commons Journal : 1688-93, vol. 10, pp. 21-2.
22. J. Western, Monarchy and Revolution: The English
State in the 1680s (London, 1972), p. 339.
23. W. Blizard, Desultory Reflections on Police
(London, 1785), pp. 59-60.
24. William Blackstone, Commentaries on the Laws of
England 4 vols., (London, 1765-9, 1st ed.; reprinted Chicago, 1979) 1:136.
25. Blackstone, Commentaries, 1:139, 140.
26. Blackstone, Commentaries, 4th ed. (London,
1777), Book I, ch. 13, I:412 and see p. 395.
27. James Madison, Notes of Debates in the Federal
Convention of 1787, Reported by James Madison, (Ohio, 1966), p. 388. And
see Max Ferrand, ed., Records of the Federal Convention of 1787, 3 vols.
(New Haven, 1911), vol. 3, appdx A, CCCXI, 319.
28. Documentary History of the Constitution of the
United States of America, 3 vols. (Washington, 1894), 2:143, 191, 269, 314;
Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution, 5 vols. (Philadelphia, 1863), 2:406.
29. Madison, Notes, p. 639.
31. Madison, Papers, 12:201; Annals of
Congress, 1:434, 750.
32. The Federal Gazette and Philadelphia Evening
Post, June 18, 1789.