[Copyright (c) 1983 Hastings Constitutional Law
Quarterly, Vol. 10:285-314.
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The Right of the People to Keep and
Arms: The Common Law
By Joyce Lee
Every generation suffers to some degree from
historic amnesia. However, when the history of a major political
tradition, along with the assumptions and passions that forged it, are
forgotten, it becomes extraordinarily difficult to understand or evaluate
its legacy. This is particularly unfortunate when that legacy has been
written into the enduring fabric of government. The Second Amendment to
the United States Constitution is such a relic, a fossil of a lost
tradition. Even a century ago its purpose would have been clearly
appreciated. To nineteenth century exponents of limited government, the
checks and balances that preserved individual liberty were ultimately
guaranteed by the right of the people to be armed. The preeminent Whig
historian, Thomas Macaulay, labelled this "the security without which
every other is insufficient,"  and
a century earlier the great jurist, William Blackstone, regarded private
arms as the means by which a people might vindicate their other rights if
these were suppressed.  Earlier
generations of political philosophers clearly had less confidence in
written constitutions, no matter how wisely drafted. J.L. De Lolme, an
eighteenth century author much read at the time of the American Revolution
 pointed out:
But all those privileges of the People,
considered in themselves, are but feeble defences against the real
strength of those who govern. All those provisions, all those reciprocal
Rights, necessarily suppose that things remain in their legal and settled
course: what would then be the recourse of the People, if ever the Prince,
suddenly freeing himself from all restraint, and throwing himself as it
were out of the Constitution, should no longer respect either the person,
or the property of the subject, and either should make no account of his
conversation with the Parliament, or attempt to force it implicitly to
submit to his will?--It would be resistance . . . the question has been
decided in favour of this doctrine by the Laws of England, and that
resistance is looked upon by them as the ultimate and lawful resource
against the violences of Power. 
This belief in the virtues of an armed citizenry had a profound
influence upon the development of the English, and in consequence the
American, system of government. However, the many years in which both the
British and American governments have remained "in their legal and
settled course[s]," have helped bring us to the point where the
history of the individual's right to keep and bear arms is now obscure.
British historians, no longer interested in the issue, have tended to
ignore it, while American legal and constitutional scholars, ill-equipped
to investigate the English origins of this troublesome liberty, have made
a few cursory and imperfect attempts to research the subject.
 As a result, Englishmen are uncertain
of the circumstances surrounding the establishment of a right to bear arms
and the Second Amendment to the Constitution remains this country's most
hotly debated but least understood liberty.
In a report on the legal basis for firearms controls, a committee of the
American Bar Association observed:
There is probably less agreement, more
misinformation, and less understanding of the right of citizens to keep
and bear arms than on any other current controversial constitutional
issue. The crux of the controversy is the construction of the Second
Amendment to the Constitution, which reads: "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."
Few would disagree that the crux of this
controversy is the construction of the Second Amendment, but, as those
writing on the subject have demonstrated, that single sentence is capable
of an extraordinary number of interpretations. 
The main source of confusion has been the meaning and purpose of the
initial clause. Was it a qualifying or an amplifying clause? That is, was
the right to arms guaranteed only to members of "a well-regulated
militia" or was the militia merely the most pressing reason for
maintenance of an armed community? The meaning of "militia"
itself is by no means clear. It has been argued that only a small, highly
trained citizen army was intended, 
and, alternatively, that all able-bodied men constituted the militia.
 Finally, emphasis on the militia has
been proffered as evidence that the right to arms was only a "collective
right" to defend the state, not an individual right to defend
oneself.  Our pressing need to
understand the Second Amendment has served to define areas of disagreement
but has brought us no closer to a consensus on its original meaning.
The fault lies not with the legal, but with the scholarly, community.
For if the crux of the controversy is the construction of the Second
Amendment, the key to that construction is the English tradition the
colonists inherited, and the English Bill of Rights from which much of the
American Bill of Rights was drawn. Experts in English constitutional and
legal history have neglected this subject, however, with the result that
no full-scale study of the evolution of the right to keep and bear arms
has yet been published. Consequently, there is doubt about such elementary
facts as the legality and availability of arms in seventeenth and
eighteenth century England, and uncertainty about whether the English
right to have arms extended to the entire Protestant population or only to
the aristocracy. Experts in American constitutional theory have
nevertheless endeavored to define the common law tradition behind the
Second Amendment without the benefit of research into these basic
questions. These experts' findings are contradictory, often involve
serious mistakes of fact, and muddle, rather than clarify, matters. For
example, in their report to the National Commission on the Causes and
Prevention of Violence, George Newton and Franklin Zimring insist that any
traditional right of Englishmen to own weapons was "more nominal than
real,"  while the authors of
The Gun in America conclude that few Englishmen ever owned
firearms because prior to the adoption of the English Bill of Rights in
1689, firearms were expensive and inefficient, and thereafter guns were
not considered "suitable to the condition" of the average
citizen.  Neither set of authors
provides more than cursory evidence. 
On the other hand, one British author found that until modern times his
countrymen's right to keep arms was "unimpaired as it was then [in
1689] deliberately settled" 
and a second noted that with only "minor exceptions" the
Englishman's "right to keep arms seems not to have been questioned."
The continuing confusion is apparent in the articles that have appeared
on this subject in American law journals. David Caplan, writing in the
North Carolina Central Law Journal, finds that "the private
keeping of arms was completely guaranteed by the common law as an
'absolute right of individuals,'" 
while James Whisker argues in the West Virginia Law Review that
long before the American Revolution "Englishmen came to view the
retention of arms by individuals or by private groups as productive only
of rebellion or insurrection." 
There is a temptation to superimpose the debate over the Second
Amendment's militia clause back onto the English guarantee of the right to
have arms, although the English guarantee contained no such clause. Roy
Weatherup, for example, interprets the clear English guarantee that "Protestant
subjects may have arms for their defence" to mean "Protestant
members of the militia might keep and bear arms in accordance with their
militia duties for the defense of the realm." 
Despite the fact that the Convention Parliament which drafted the English
Bill of Rights purposely adopted the phrase "their defence" in
preference to "their common defence" 
he could find "no recognition of any personal right to bear arms."
 In short, there is disagreement
over who could, or did, own firearms both before and after passage of the
English Bill of Rights.
Nearly all writers agree, however, that an accurate reading of the
Second Amendment is indispensable to resolving current debates over gun
ownership, and that a clarification of the common law tradition is
necessary to that reading.  There
are compelling reasons for this consensus. To begin with, the royal
charters that created the new colonies assured potential emigrants that
they and their children would "have and enjoye all Liberties and
Immunities of free and naturall Subjects . . . as if they and every of
them were borne within the Realme of England." 
Furthermore, the entire body of common law, with the exception of those
portions inappropriate to their new situation, crossed the Atlantic with
the colonists.  The perilous
circumstances of the infant colonies made the common law tradition of an
armed citizenry both appropriate and crucial to the survival of the
plantations.  Indeed, the colonies
began very early requiring residents to keep firearms and establishing
There is a further reason for examining the Second Amendment in the
light of English legal traditions. Not only did colonists arrive in the
new land equipped with an elaborate legal framework, they were for the
most part imbued with that attitude of antiauthoritarianism that had
fueled the traumatic upheavals of the seventeenth century: the English
Civil War of 1642, and the Glorious Revolution of 1688. This general
distrust of central power resulted in the English Bill of Rights in 1689
and was to produce the American Bill of Rights a century later. Bernard
Bailyn, in The Ideological Origins of the American Revolution,
is emphatic about there being a connection between English opposition
philosophy and American political thought:
To say simply that this tradition of
opposition thought was quickly transmitted to America and widely
appreciated there is to understate the fact. Opposition thought, in the
form it acquired at the turn of the seventeenth century and in the early
eighteenth century, was devoured by the colonists. . . . There seems never
to have been a time after the Hanoverian succession when these writings
were not central to American political expression or absent from polemical
When they had won their battle to retain the rights of Englishmen, and
came to write the federal and state constitutions and draw up the federal
Bill of Rights, American statesmen borrowed heavily from English models.
 Since the federal Bill of Rights,
including the Second Amendment, is to a very great extent an example of
such borrowing, it behooves us to take a closer look at their English
I. The Traditional Obligation to be
During most of England's history, maintenance of
an armed citizenry was neither merely permissive nor cosmetic but
essential. Until late in the seventeenth century England had no standing
army, and until the nineteenth century no regular police force. The
maintenance of order was everyone's business and an armed and active
citizenry was written into the system. All able-bodied men between the
ages of sixteen and sixty were liable to be summoned to serve on the
sheriff's posse to pursue malefactors or to suppress local disorders.
 For larger scale emergencies, such
as invasion or insurrection, a civilian militia was intermittently
mustered for military duty.  While
all able-bodied males were liable for this service, the practice during
the late sixteenth and seventeenth centuries had been to select a group of
men within each county to be intensively trained. 
Whenever possible, members of these trained bands were supposed to be
prosperous farmers and townsmen, but in practice, the rank-and-file were
usually men of modest means--small freeholders, craftsmen, or
tenant-farmers.  They were, however,
invariably led by prestigious members of their community, and commanded by
lords lieutenant, who were peers appointed by, and directly responsible
to, the Crown.  The effectiveness of
the militia varied with the need for their services, the interest of
particular monarchs, and even with the enthusiasm of individual muster
masters and captains.  During some
reigns, the trained bands were scarcely mustered from one year to the
next; in others they were drilled with regularity. In the 1630's, a major
effort was made to re-equip these citizen-soldiers and have them
instructed in the latest European military tactics. 
The militia and the posse were summoned only occasionally, but English
subjects were frequently involved in everyday police work. The old common
law custom persisted that when a crime occurred citizens were to raise a "hue
and cry" to alert their neighbors, and were expected to pursue the
criminals "from town to town, and from county to county."
 Villagers who preferred not to get
involved were subject to fine and imprisonment. 
As an additional incentive to aid in crime prevention, local residents
were expected to make good half the loss caused by robbers or rioters.
The most frequent police duty was the keeping of watch and ward. Town
gates were closed from sundown until sunrise and all householders, "sufficiently
weaponed" according to the requirement, took turns standing watch at
night or ward during that day. 
Widows, disabled men, and other townsmen unable to carry out the task had
to hire substitutes to serve in their stead. 
Citizens were not only expected to have suitable weapons at the ready
for these duties, but, since passage of the Statute of Winchester in 1285,
were assessed according to their wealth for a contribution of arms for the
militia.  When not in use for
musters or emergencies, nearly all of this equipment remained in private
hands. A series of later statutes spelled out in detail the arms each
household was required to own and the frequency of practice sessions.
 During the reign of Queen
Elizabeth, for example, every family was commanded to provide a bow and
two shafts for each son between the ages of seven and seventeen and to
train them in their use or be subject to a fine. 
To promote proficiency in arms, Henry VIII and his successors ordered
every village to maintain targets on its green at which local men were to
practice shooting "in holy days and other times convenient."
The obligation to own and be skilled in the use of weapons does not, of
course, imply that there were no restrictions upon the type of weapon
owned or the manner of its use. A statute passed in 1541, for instance,
cited the problem of "evil-disposed" persons who daily rode the
King's highway armed with crossbows and handguns--weapons easily concealed
beneath a cloak--and preyed upon Henry VIII's good subjects. The new law
limited ownership of such questionable weapons to persons with incomes
over one hundred pounds a year--citizens presumably more
trustworthy--whereas those with less income were not to carry a crossbow
bent, or a gun charged "except it be in time and service of war."
 This law, often misinterpreted as
restricting all ownership of firearms to the upper classes, merely limited
the use of those weapons most common in crime. Indeed, the statute
specifically states that it is permissible not only for gentlemen, but for
yeomen, servingmen, the inhabitants of cities, boroughs, market towns, and
those living outside of towns "to have and keep in every of their
houses any such hand-gun or hand-guns, of the length of one whole yard."
 The use of shot was forbidden, as
was the brandishing of a firearm so as to terrify others, and the use of
guns in hunting by unqualified persons. 
It is notable that in cases in which crossbows, handguns, or other weapons
were confiscated because of improper use, the courts were at pains to
specify that the weapon in question was "noe muskett or such as is
used for defence of the realm." 
The kingdom's Catholics formed an important exception to the tolerant
attitude toward individual ownership of weapons. After the English
Reformation they were regarded as potential subversives, and as such were
liable to have their arms impounded. They were still assessed for a
contribution of weapons for the militia, but were not permitted to keep
these in their homes or to serve in the trained bands. 
They were allowed to keep personal weapons for their defense, although in
times of extreme religious tension their homes might be searched and all
weapons removed.  The various
restrictions on Catholic subjects are significant for demonstrating that a
particular group could be singled out for special arms controls, but they
did not advantage a substantial proportion of the community, for, by the
second half of the seventeenth century, Catholics seem to have comprised
not more than one in fifty of the English population. 
For the great majority of Englishmen there was a natural tendency during
tranquil years or in periods of government indifference to become blase
about military duties; complaints of widespread negligence echo through
the years. In 1569, a jury presented a grievance "that there is to
much bowling and to little shoting," 
and fifty years later, in the 1620's, Charles I had to resort to the
closure of alehouses on Sundays to keep men at their shooting practice.
 In 1621 Sir James Parrett
complained of the lamentable decline in the numbers of armed retainers
maintained by the wealthy. "Those gentlemen whose grandfathers kept
15 or 17 lusty serveing men and but one or 2 good silver boules to drinke
in," he noted, had been succeeded by "grand-children fallen from
Charity to impiety [who] keepe scarce 6 men and greate Cubards of plate to
noe purpose." Worse still, Parrett reported that public complacency
had reached the stage where "in two shyres [there was] not a barrell
of Gunn-powder to bee seene." 
During the 1620's and 1630's there was a serious effort to modernize the
militia, but the increased expenses and requirement of additional
participation aroused popular resistance. Robert Ward, author of a
military manual published just prior to the Civil War, was distressed at
the failure of many bandsmen to appreciate
how deeply every man is interested in
it, for if they did, our yeomandrie would not be so proud and base to
refuse to be taught, and to thinke it a shame to serve in their own armes,
and to understand the use of them; were they but sensible, that there is
not the worth of the peny in a kingdome well secured without the due use
of Armes. 
Two years later, with the commencement of frantic preparations for civil
war and party struggles over public arsenals, the public's attitude had
completely altered. Wails of despair were heard from city after city as
the royal army confiscated public magazines and disarmed local residents.
"The best of it is," a disarmed and distraught townsman of
Nantwich wrote, "if we stay at home, we are now their slaves. Being
naked they will have of us what they list, and do with us what they list."
Forewarned was forearmed, and from 1642 Englishmen learned to hide their
firearms and to stockpile weapons.
Nearly twenty years later, this proliferation of privately owned weapons
would be regarded by the restored monarch and his supporters as a menace.
It was their efforts to control weapons that convinced Englishmen that the
duty to keep arms must be recognized as a right. The events of the
Restoration period, therefore, are of crucial importance.
II. Royal Efforts to Control Arms
To grasp the magnitude of the problem that awaited
Charles II upon his return in 1660 it is useful to get some idea of the
numbers of firearms kept in private homes. In ordinary times each
household was expected to possess arms suitable to its defense, but what
was considered suitable? It is possible to obtain an indication of what
was regarded as a minimal arsenal by examining the responses of those
charged by Charles II's government with stockpiling weapons. For example,
in 1660, in reply to allegations that he had concealed weapons, one Robert
Hope pleaded that in the past he had, indeed, kept guns for neighbors, but
at present he had only "one light rapire and a small birdinge gunne."
 Hope obviously considered this
small stock beyond exception. In 1667, a Catholic subject informed an
official that he was "not so well furnished with arms" as
formerly, having only two fowling pieces and two swords. 
Those not suspected of disaffection had, or at least admitted to having,
comparatively more weapons. A Buckinghamshire squire kept for private use
a pair of pocket pistols, another pair of "screwed" pistols, a
suit of light armour, a sword, and a carbine. 
A country curate in the early eighteenth century, unqualified to hunt and
certainly no soldier, nonetheless owned two guns and a blunderbuss.
 While wealthier citizens usually
owned more weapons, firearms seem to have been well distributed throughout
the community.  Quarter Session
records reveal that men charged with illegal use of a gun for hunting were
most often poor laborers, small farmers, or craftsmen. 
This is not surprising, since guns abounded during and after the Civil War
 and seem not to have been beyond
the means of the poorer members of the community. In 1664 a musket could
be purchased for ten shillings, a sum that would take only a little over a
week for a foot soldier in a militia band to accumulate from his wages,
and a little more than two weeks for a citizen to afford with the modest
wages paid for standing night watch. 
Used weapons could probably be bought even more cheaply.
The anxious period between Cromwell's death and the arrival of Charles
II was no ordinary time, and many citizens began to assemble caches of
weapons, some of which turned up years later in homes, churches, and
guildhalls throughout the realm.  In
1660 a Bristol prebendary notified authorities that the stables of his
predecessor's house were full of cannon balls and, even twenty years
later, a Shropshire man and his son were found with a cache of some thirty
muskets and other guns and admitted to having owned and burned fifty
pikes.  City officials stockpiled
weapons as well, and Northampton and Exeter were among those communities
later embarrassed by the disclosure of stocks of arms hidden in public
buildings. In 1661 the city of Exeter surrendered 937 musket barrels only
to have another hoard of weapons discovered shortly afterwards in the
As his subjects and the republican army of some 60,000 men waited, "armed
to the teeth," to greet their new monarch, Charles II found himself
virtually unarmed. In the months before his arrival public arsenals had
suffered such extensive embezzlements that the King's men were unable to
find in them "firearms enough . . . to arm three thousand men."
 The King was careful to conceal the
fact "that it might not be known abroad or at home, in how ill a
posture he was to defend himself against an enemy." 
It is scarcely surprising, therefore, that the wild rejoicing that
greeted Charles II upon his return to London in May, 1660 
failed to disguise from the King the precariousness of his position. He
was painfully aware that many of these same citizens had gathered for his
father's execution eleven years earlier and that despite its obedient
professions, Parliament had never been at "so high a pitch," for
"the power which brought in may cast out, if the power and interest
be not removed." A study sent
to his Court recommended the removal of that power. The anonymous author
argued that no prince could be safe "where Lords and Commons are
capable of revolt," hence it was essential to disarm the populace and
establish a professional army. "It is not the splendor of precious
stones and gold, that makes Ennemies submit," he observed, "but
the force of armes. The strength of title, and the bare interest of
possession will not now defend, the stres will not lye there, the sword is
the thing." 
Charles agreed completely. But to achieve a shift in the balance of
armed might from the general populace to reliable supporters, he needed an
obedient police establishment and a series of legal or quasi-legal
enactments that would permit the disarmament of his opponents, among whom
he counted members of the republican army. 
In this latter task he had help from Parliament, whose members had learned
a lasting distrust of all armies at the hands of Cromwell's soldiers.
Parliament speedily devised a scheme to pay off regiments by lot, taking
care to secure their weapons "for his Majesty's service."
 While Charles was relieved to have
this particular army disbanded, he was anxious to launch a permanent
establishment of his own, and shortly after his return to England secretly
began to plan for a force of eight thousand men. A loophole in the
disbandment bill permitted the King to maintain as many soldiers as he
liked, provided he paid for their upkeep. 
The militia was a knottier problem. Both King and Parliament were eager
to reestablish the old trained band system, but Parliament was reluctant
to confront the numerous difficulties any militia act would have to
resolve. A bill submitted at the time of the Restoration had been rejected
because many representatives believed its provision for martial law might
make Englishmen "wards of an army." 
The struggle over control of the militia had driven the realm to war in
1642;  the issue of royal command
would have to be clarified and a militia assessment set, which would
involve an evaluation of every subject's property. Despite vigorous
pressure from the Court, members of Parliament refused to approve even a
temporary militia bill for more than a year. 
The King, however, was unwilling to wait even a few days before
establishing a militia, and was reported within ten days of his return to
London to be "settling the militia in all counties by Lords
Lieutenants."  His right to do
so, even in the absence of a valid militia act, does not seem to have been
questioned. All candidates for the post of lord lieutenant were carefully
screened, and officers were instructed to select bandsmen of unblemished
royalist complexion.  The resulting
force should in no way be seen as representative of the people.
In conjunction with this purged and loyal militia, Charles created a new
military body as large again as the militia for which there was far less
precedent. It was composed of regiments of volunteers who met at their
own, rather than the county's, expense and drilled alongside the regular
militia.  Both the size of this
private army and its longevity were impressive. It continued as an
organized force well after the Militia Act of 1662 took effect, and at
least through 1667, when the entire militia fell into decline.
 Although the official task of the
volunteers was "to assist on occasion," occasion occurred with
great frequency, particularly when such controversial and unpopular duties
as the disarmament of fellow subjects were involved. 
Charles II employed his militia and volunteer regiments differently from
the manner in which militia had been used before the Civil War. In place
of the occasional muster in time of peace and mobilization during an
invasion or rebellion, his men were to be ready for action at an hour's
warning.  Their main task was to
police possible opponents of the regime. Their first order was to monitor
the "motions" of persons of "suspected or knowne
disaffection" and prevent their meeting or stockpiling weapons.
 All arms and munitions in the
possession of such suspects beyond what they might require for personal
defense were to be confiscated. 
With this police apparatus in place, the King turned to the royal
proclamation, a device of uncertain legal status, to tighten arms control.
In September, 1660, he issued a proclamation forbidding footmen to wear
swords or to carry other weapons in London. 
In December another proclamation expressed alarm that many "formerly
cashiered Officers and Soldiers, and other dissolute and disaffected
persons do daily resort to this City." 
All such 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 future
they were commanded to report every Saturday night to the ordnance office
the number of guns made and sold that week. 
Carriers throughout the kingdom were required to obtain a license if they
wished to transport guns, and all importation of firearms was banned.
Events then played into Charles's hands, for on January 6, 1661, an
uprising by a handful of religious zealots provided the perfect excuse to
crack down on all suspicious persons and to recruit his own standing army.
Thomas Venner, a cooper, had led his small band of Fifth Monarchists into
the streets of London to launch the prophesied fifth universal monarchy of
the world. Although the group was soon subdued, 
the Court administration blatantly exaggerated the threat they had posed.
Speaking to Parliament six months later, the Lord Chancellor characterized
the pitiful uprising as the "most desperate and prodigious Rebellion
. . . that hath been heard of in any Age" and insisted the plot had "reached
very far," and that "there hath not been a Week since that Time
in which there hath not been Combinations and Conspiracies formed."
The timing of the Fifth Monarchist uprising was especially opportune,
for it occurred the very day the last regiments of the Commonwealth army
were due to be disbanded. In response to this visible danger, these
regiments were retained and twelve more companies were recruited to form
the nucleus of a royalist army.  The
militia and volunteers throughout the realm were ordered to carry out a
general disarmament of everyone of doubtful loyalty. 
By January 8, 1661, two days after the Venner uprising, Northamptonshire
lieutenants reported that all men of known "evill Principles"
had been disarmed and secured "so as we have not left them in any
ways of power to attempt a breach of the peace." 
By the autumn of 1661, with his enemies in prison or at least disarmed
and under surveillance, with strict monitoring of both production and
distribution of weapons, and with a small standing army and a large police
establishment, Charles was ready to disarm the most dangerous element of
the population--the thousands of disbanded soldiers of the republican
army. Acting by proclamation on November 28, he ordered all veterans of
that army and all those who had ever fought against the Stuarts to depart
from the capital within the week and to remain at least twenty miles away
until June 24, 1662.  During their
six months of banishment the veterans were warned not to "weare, use,
or carry or ryde with any sword, pistoll or other armes or weapons."
 Two days before this proclamation
was due to expire, another appeared which extended the ban and the
prohibition against carrying arms for an additional six months.
 The scope of these bans was so
broad it is doubtful whether the militia and volunteers were capable of
enforcing them. Nevertheless, the proclamations had the practical effect
of depriving a large portion of the male population of its legal right to
Endless alarms of plots provided an excuse to keep the militia on full
alert, to impose restrictions on the production, importation, and movement
of arms, and to create a standing royal army. Parliament cooperated in
this policy by passing militia acts in 1661 and 1662 which reaffirmed the
King's control of that force and specifically authorized bandsmen to
continue the seizure of arms that Charles's militia had been undertaking
on the King's orders alone.  Any
two deputy lieutenants could initiate a search for, and seizure of, arms
in the possession of any person whom they judged "dangerous to the
Peace of the Kingdom."  This
definition of those who could be disarmed was less precise than that of
any former militia act, and permitted lower ranking officers great
latitude in disarming their neighbors.
Charles II's program to police his realm and control its arms
demonstrated skill, timing, and resourcefulness. Arriving unarmed in 1660
to confront an armed nation and a veteran republican army, he succeeded
within two years in molding the militia and volunteers into a police force
of unprecedented size and effectiveness. All possible adversaries were
watched, harassed, disarmed, and in many instances imprisoned. And the men
of Oliver Cromwell's army, once the pride of England and terror of Europe,
were flattened, disbanded, psychologically disarmed, and then actually
deprived of their right to carry weapons. Many members of Parliament were
skeptical about the need for such broad powers or the actual danger of
rebellion  but were content to
give the King what he wished as long as their own interests were
III. Parliament's Campaign to Regulate
The royalist aristocrats who flocked to welcome
Charles II on his return had every reason to rejoice, for his restoration
was theirs as well. After twenty years during which their prestige,
pocketbooks, and property had been ravaged by war, revolution, and a
republican government, they had an opportunity to restore, and even
enhance, their former position. The royalists were to be so successful in
this aim that their position by 1688 was described as like that of the
barons of Henry III.  In order to
restore order they were prepared to concede much to the Crown, but
jealously guarded the power of the sword and mastery of the localities.
They administered local justice, staffed the militia, served in the royal
volunteers, and sat in Parliament. 
The King was dependent upon them to carry out his policies and shore up
his regime.  For the sake of
maintaining their political dominance they acquiesced in the King's
program of arms control and, in the Militia Act of 1662, extended the
power of militia officers to disarm suspects. 
But the aristocracy went beyond approving the royal controls. On its own
initiative, Parliament passed a game act in 1671 that, for the first time,
deprived the vast majority of Englishmen of their legal right to keep
Game acts had been passed from time to time and were ostensibly designed
to protect wild game and to reserve the privilege of hunting for the
wealthy. But disarming the rural population was sometimes an underlying
motive for their passage.  Game
acts of the sixteenth and early seventeenth centuries had made possession
of certain breeds of dog and possession of equipment specifically designed
for hunting illegal for all those not qualified by income to hunt.
 However, since guns were
acknowledged to have legitimate purposes, they were confiscated only if
used illegally. 
The Game Act passed in 1671 differed from its predecessors in several
important respects. To begin with, it raised the property qualification
necessary to hunt from forty pounds to one hundred pounds annual income
from land, a figure so high that only the nobility, gentry, and a very few
yeomen could qualify, whereas all those whose wealth came from a source
other than land--such as lawyers and merchants--were forbidden to hunt.
 This extraordinarily high
qualification divided the rural population into two very unequal groups
and placed the aristocracy at odds with everyone else. Many critics would
later express astonishment that "the legislature of a mighty empire
should require one hundred [pounds] a year to shoot a poor partridge, and
only forty shillings to vote for a senator!" 
The qualification to hunt was fifty times that required to vote.
Of more importance, this game law stated that all persons unqualified to
hunt, at least ninety-five percent of the population, were not qualified
to keep or bear arms. In the language of the statute: "[A]ll and
every person and persons, not having Lands and Tenements of the clear
yearly value of One hundred pounds . . . are . . . not allowed to have or
keep for themselves, or any other person or persons, any Guns, Bowes, . .
. or other Engines."  It was
no longer necessary to prove illegal use or intent; the mere possession of
a firearm was illegal. The new act also empowered owners of forests and
parks to appoint gamekeepers who, by warrant, could search the homes of
persons suspected of harboring weapons, and confiscate any arms they
There can be little doubt that it was the intention of the promoters of
the Game Act to give themselves the power to disarm their tenants and
neighbors and to bolster the position of their class with respect to that
of the King and of the wealthy members of the middle class. They had begun
to be suspicious of Charles II by 1671, and frightened by a spate of rural
violence.  Hence, the provision
of the Game Act that enabled country squires to set up their own
gamekeeper-police and to confiscate the weapons of unqualified persons at
their discretion must have seemed most desirable. As James II was to
demonstrate, however, it was a statute with great potential for the Crown.
There appears to have been no overt protest or widespread alarm over the
royalist program of arms control. While this may have been due to the
conviction that such controls were necessary, it seems more likely that
the real reason was that the program was not rigidly enforced during the
reign of Charles II. It would have been difficult to carry out the
proclamations against the carriage of arms by parliamentary veterans, and
the militia's disarmament of suspicious persons was always selective.
 The prosecution of the Game Act
of 1671 was left to the gentry and from the scant evidence available
appears to have been sporadic.
After 1680, however, Charles II began to use the Militia Act to disarm
his Whig opponents, and in 1686, James II made use of both the Militia Act
and the Game Act to disarm his Protestant subjects. 
Englishmen were outraged and alarmed, and finally convinced of the need to
guarantee their right to own weapons. After James II had fled from the
kingdom, members of the Convention Parliament convened by William of
Orange  felt it incumbent upon
them to shore up the rights of English subjects before a new monarch
ascended the throne. During their discussions, the need for Protestant
subjects to have arms came up repeatedly. 
When the many rights considered most in need of reaffirmation had been
pared to thirteen, and a Declaration of Rights presented to William and
Mary, the seventh among the "true, ancient, and indubitable"
rights proclaimed was the right of all Protestants "to have Arms for
their Defence suitable to their Conditions and as allowed by Law."
IV. The English Bill of Rights and the
As an article of the English Bill of Rights, the
right to have arms was part and parcel of that bundle of rights and
privileges that English men carried with them to America and which they
later fought to preserve. Much of the present confusion over the Second
Amendment to the United States Constitution stems from the failure to
understand the meaning or to determine the effect of the English
right--problems that can both be finally solved by a careful reading of
the historic record.
Roy Weatherup is one of several authors who fail in the attempt to fix
the meaning of the English right by slipping into the common trap of
imposing a modern controversy upon past events. 
Weatherup is so caught up in the debate over the reference to the militia
in the Second Amendment and the attendant quarrel over whether that
amendment conveys a collective or an individual right 
that he totally ignores the fact that the English right to arms makes no
mention whatsoever of the militia. Undeterred, Weatherup insists that the
English right conveyed "no recognition of any personal right to bear
arms on the part of subjects generally" but merely granted members of
the militia the right to "keep and bear arms in accordance with their
militia duties."  Such an
interpretation ignores the clear language of the English right and
disregards the accompanying historic record. The militia was certainly of
grave concern to members of the Convention Parliament, but this was not
because members of the militia had been disarmed. Quite the contrary. The
militia was a problem because the Militia Act of 1662 had permitted its
officers wide latitude to disarm law-abiding citizens. The
correction of this abuse and many others that preoccupied the members
required new legislation which, they reluctantly admitted, in the present
emergency they did not have the leisure to draft. 
Instead, they decided to concentrate their energies upon reaffirming those
ancient rights most recently imperiled through a declaration of rights
they hoped would be "like a new magna charta." 
Legislative reform was meant to follow when time allowed.
Weatherup is somewhat nearer the mark in his assertion that a collective
right was intended.  A collective
right to arms was discussed by the Convention, but it was rejected in
favor of an individual right alone. The Whig members of the Convention had
pressed hard for a collective as well as an individual right
 and the first version of the
arms article adhered to their view that the public should be armed to
protect their rights:
It is necessary for the publick Safety,
that the Subjects which are Protestants, should provide and keep Arms for
their common Defence. And that the Arms which have been seized, and taken
from them, be restored. 
The second version of this article retreated
somewhat from this stance. It stated:
That the Subjects, which are
Protestants, may provide and keep Arms, for their common Defence.
All mention of arms being "necessary for the
publick Safety" was omitted although this version still asserts that
arms could be kept for "common" defense; instead of the
exhortation that citizens "should" provide and keep arms, the
permissive "may" is used.
It was the third, and final version, however, that constituted a
complete retreat from any collective right to have arms. It read:
That the Subjects which are Protestants
may have Arms for their Defence suitable to their Conditions, and as
allowed by Law. 
The reference to a need for arms for "their
common Defence" was replaced by the right to keep arms for "their
Defence," and two modifying clauses were added at the last moment at
the instigation of the cautious House of Lords.
In the opinion of a modern British scholar, the retreat from a
collective to an exclusively individual right to have arms "emasculated"
the article: "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."  The Whigs
continued to press for the notion that it was necessary for the safety of
the constitution that subjects be armed and, in the course of the
eighteenth century, Blackstone among others reinterpreted the English
right to arms to include that position. 
At the time it was drafted, however, the English right to have arms was
solely an individual right. By the outbreak of the American Revolution, it
had been transformed into both an individual and a collective right.
The actual impact of the English right as stated in the new Bill of
Rights is far more difficult to determine than its meaning. Modern critics
have argued that the limitation to Protestants of the right to have arms
and the qualifying clauses further restricting lawful possession by
Protestants to those weapons "suitable to their conditions" and "as
allowed by Law" made this right so exclusive and uncertain as to be "more
nominal than real."  But if,
at first glance, the article's exclusiveness appears striking, much hinges
on how these clauses, added at the last moment, were in fact interpreted.
There is no doubt that "as allowed by law" included those
sixteenth century laws which placed certain restrictions on the type of
arms subjects could own, but did not deprive Protestant subjects of their
right to have firearms.  However,
the Game Act of 1671 was in direct conflict with that right. Since the
Convention Parliament had agreed to restate rights but leave legislative
reform for the future,  it is not
surprising that the right to have arms contradicted laws still on the
statute books. The best means of determining the extent to which the
qualifying clauses limited ownership of firearms is to examine subsequent
legislation and those legal cases that decided permissible use.
Early in the reign of William and Mary, Parliament approved two acts
affecting arms ownership: "An Act for the better securing the
Government by disarming Papists and reputed Papists" in 1689,
 and, in 1692, "An Act for
the more easie Discovery and Conviction of such as shall Destroy the Game
of this Kingdom."  A militia
act was also approved by the House of Commons in July 1689, but failed to
pass the House of Lords.  The
first of these acts, the act for disarming Catholics, was meant to secure
the realm against a rising on behalf of the deposed Catholic king, James
II. It prohibited Catholics from keeping all "Arms, Weapons,
Gunpowder, or Ammunition," but did permit a Catholic to retain those
weapons that local justices at Quarter Sessions thought necessary "for
the Defence of his House or Person." 
This exception is especially significant, as it demonstrates that even
when there were fears of religious war, Catholic Englishmen were permitted
the means to defend themselves and their households; they were merely
forbidden to stockpile arms. The need for individual self-defense was
conceded to have precedence over other considerations. Furthermore, while
the Bill of Rights excluded Catholics from any absolute right to have
arms, members of that faith were, in practice, accorded the privilege of
retaining some weapons.
In 1692, Parliament passed a game statute designed to supercede all
previous game acts.  This act
incorporated many articles of the Game Act of 1671, but altered that act's
ban on ownership of firearms by persons unqualified to hunt by omitting
all mention of guns from the list of forbidden devices. Whereas the Game
Act of 1671 stated that persons not qualified to hunt were "not
allowed to have or keep for themselves, or any other person or persons,
any Guns, Bowes, Greyhounds . . . or other Engines,"
 the new act prohibited such
persons from keeping and using "any bows, greyhounds . . . or any
other instruments for destruction of . . . game." 
According to the rule of law of that era, a later statute expressed in
terms contrary to those of a former statute takes away the force of the
first statute even without express negative words. 
Of course, it was possible that guns could be included among "other
instruments for destruction of . . . game." All evidence, however,
points to the intentional exclusion of firearms from the terms of the
The House of Commons journals reveal the sensitivity of members to the
new act's potential for disarming Englishmen. At the time of the bill's
third reading, an engrossed clause, offered as a rider, stated that "any
Protestant may keep a Musquet in his House, notwithstanding this or any
other Act."  This was a very
sweeping proposal, as it made no allowance for factors such as the sanity
or previous criminality of the gun owner, and would, moreover, have
purportedly bound future parliaments--something no session was really at
liberty to do.  On the question
of whether this rider should have a second reading, there was sufficient
controversy to compel a division. The proposal lost by sixty-five votes to
one hundred sixty-nine.  Despite
its failure to become part of the new game act, it is of interest for two
reasons: first, because it indicated the awareness of members that a game
act could jeopardize the right of Protestants to have arms; second,
because although it was an extreme proposal, it was not dismissed out of
hand but occasioned a rare division in the House of Commons.
There is a frustrating lack of commentary or cases bearing on the issue
of whether the omission of guns from the list of proscribed devices in the
Game Act of 1692 should be regarded as legalizing their ownership, or
whether firearms ought to be included under "any other engine."
But the fact that there is no recorded instance of anyone charged under
the new act for mere possession of a firearm, coupled with decisions from
cases under a later law with similar language, 
lends weight to the conclusion that guns were meant to be excluded from
the terms of the statute.
In reference to the successor to the Game Act of 1692, "An act for
the better preservation of the game," passed in 1706,
 Joseph Chitty, an expert on game
law, notes: "We find that guns which were expressly mentioned in the
former acts were purposely omitted in this because it might be attended
with great inconvenience to render the mere possession of a gun prima
facie evidence of its being kept for an unlawful purpose."
 Two cases brought under that
game act dealt specifically with the question of the inclusion of firearms
under prohibited devices. Perhaps the most important of these was Rex
v. Gardner,  in which the
defendant had been convicted by a justice of the peace for keeping a gun
in alleged violation of the Game Act. There was no evidence that the gun
in question had been wrongfully used. But it was argued that a gun was
mentioned in the 1671 Game Act 
and considered there as an engine, and that the use of the general words "other
engines" in the 1706 Act should be taken to include a gun.
 It was objected "that a gun
is not mentioned in the statute [of 1706], and though there may be many
things for the bare keeping of which a man may be convicted, yet they are
only such as can only be used for destruction of the game, whereas a gun
is necessary for defence of a house, or for a farmer to shoot crows."
The court concluded that "a gun differs from nets and dogs, which
can only be kept for an ill purpose, and therefore this conviction must be
quashed."  The justices
[I]f the statute is to be construed so
largely, as to extend to the bare having of any instrument, that may
possibly be used in destroying game, it will be attended with very great
inconvenience; there being scarce any, tho' ever so useful, but what may
be applied to that purpose. And tho' a gun may be used in destroying game,
and when it is so, doth then fall within the words of the act; yet as it
is an instrument proper, and frequently necessary to be kept and used for
other purposes, as the killing of noxious vermin, and the like, it is not
the having a gun, without applying it in the destruction of game, that is
prohibited by the act. 
Indeed, Lord Macclesfield commented in this regard
that he himself was in the House of Commons when that game act was drafted
and personally objected to the insertion of the word gun therein "because
it might be attended with great inconvenience." 
In Wingfield v. Stratford & Osman, 
appellant challenged his conviction under the Game Act and the
confiscation of his gun and dog, the dog being a setting dog, the gun
allegedly "an engine" for killing of game. The prosecution's
plea was held faulty because it amounted to a general issue,
 but the court pointed out that
it would have held for appellant in any case as the prosecution had not
alleged that the gun had been used for killing game:
It is not to be imagined, that it was
the Intention of the Legislature, in making the 5 Ann.c.14 to disarm all
the People of England. As Greyhounds, Setting Dogs . . . are expressly
mentioned in that Statute, it is never necessary to alledge, that any of
these have been used for killing or destroying the Game; and the rather,
as they can scarcely be kept for any other Purpose than to kill or destroy
the Game. But as Guns are not expressly mentioned in that Statute, and as
a Gun may be kept for the Defence of a Man's House, and for divers other
lawful Purposes, it was necessary to alledge, in order to its being
comprehended within the Meaning of the Words "any other Engines to
kill the Game", that the Gun had been used for killing the Game.
By the middle of the eighteenth century,
therefore, English courts could not "imagine" that Parliament
intended to disarm the people of England.
In 1775, the American colonists fought for what they regarded as the
rights of Englishmen. 
Fortunately, there is ample contemporary evidence defining exactly what
the rights of Englishmen were at that time in respect to the keeping and
bearing of arms. In 1782, Granville Sharp, an English supporter of the
American cause, wrote that no Englishman "can be truly Loyal"
who opposed the principles of English law whereby the people are required
to have "arms of defence and peace, for mutual as well as private
defence."  He argued that
the laws of England "always required the people to be armed, and not
only to be armed, but to be expert in arms."
 Edward Christian noted in his
edition of Blackstone's Commentaries, published in 1793, that "ever
since the modern practice of killing game with a gun had prevailed,
everyone is at liberty to keep or carry a gun, if he does not use it for
the destruction of game." 
But the most definitive opinion on the rights of Englishmen "to bear
arms, and to instruct themselves in the use of them" came from the
Recorder of London, the chief legal adviser to the mayor and council, in
1780. He stated:
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. It seems, indeed, to be
considered, by the ancient laws of this kindom, not only as a right,
but as a duty; for all the 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 established by the authority of
judicial decisions and ancient acts of parliament, as well as by reason
and common sense. 
Prior to the Restoration, Englishmen had the
obligation to be armed for the public defense and the privilege of keeping
arms for their personal defense. During the reigns of Charles II and James
II, from 1660 to 1688, the Court and Parliament passed laws and issued
proclamations that severely restricted the rights of the people to possess
firearms, and followed a policy designed to control production and
distribution of weapons. The English Bill of Rights of 1689, however, not
only reasserted, but guaranteed, the right of Protestant subjects to be
armed. The qualifying clauses of the Bill that appear to limit arms
ownership were, in fact, interpreted in a way that permitted Catholics to
have personal weapons and allowed Protestants, regardless of their social
and economic station, to own firearms. The ancillary clause "as
allowed by Law" merely limited the type of weapon that could be
legally owned to a full-length firearm, enforced the ban on shot, and
permitted legal definition of appropriate use. The right of Englishmen to
have arms was a very real and an individual right. For all able-bodied men
there was also the civic duty to bear arms in the militia. The twin
concepts of a people armed and a people trained to arms were linked, but
If one applies English rights and practice to the construction of the
Second Amendment to the United States Constitution, it is clear that the
Amendment's first clause is an amplifying rather than a qualifying clause,
and that a general rather than a select militia was intended. In fact,
every American colony formed a militia that, like its English model,
comprised all able-bodied male citizens. 
This continued to be the practice when the young republic passed its first
uniform militia act under its new constitution in 1792. 
Such a militia implied a people armed and trained to arms.
The Second Amendment should properly be read to extend to every citizen
the right to have arms for personal defense. This right was a legacy of
the English, whose right to have arms was, at base, as much a personal
right as a collective duty. It is significant that the American right to
keep arms was unfettered, unlike the English right, which was limited in
various ways throughout its development.
Thus, in guaranteeing the individual right to keep and bear arms, and
the collective right to maintain a general militia, the Second Amendment
amplified the tradition of the English Bill of Rights for the purpose of
preserving and protecting government by and for the people.
Scholar, Harvard Law School; B.A., 1963, Barnard College; Ph.D., 1977,
article is part of a larger project on the history of the right to bear
arms, the research for which has been made possible from the following
generous awards: a Research Fellowship from the National Endowment for the
Humanities, a Fellowship in Legal History from the American Bar
Foundation, a Summer Fellowship from the Liberty Fund, and a Mark DeWolfe
Howe research grant from Harvard Law School.
T. Macaulay, Critical and Historical Essays,
Contributed to the Edinburgh Review 154, 162 (Leipzig 1850).
1 W. Blackstone, Commentaries *139-40 (1st
ed. Oxford 1765).
 De Lolme's
book, The Constitution of England, was
first published in 1771 and quickly went through an impressive number of
editions. D'Israeli later referred to De Lolme as "the English
Montesquieu." See Oxford University
Press, 1 The Concise Dictionary of National Biography 332 (2d ed.
1903); 7 Encyclopaedia Britannica 970 (11th
J. De Lolme, The Constitution of England
227 (New York 1793).
e.g., L. Kennet & J. Anderson, the
Gun in America 25-27 (1975); G. Newton & F. Zimring, Firearms &
Violence in American Life; A Staff Report Submitted to the National
Commission on the Causes & Prevention of Violence 255 (1968); Levin,
The Right to Bear Arms: The Development of the American Experience
48 Chi-Kent L. Rev. 148 (1971); Weatherup,
Standing Armies and Armed Citizens: An Historical Analysis of the
Second Amendment, 2 Hastings Const. L.Q.
 Miller, Sec.
III The Legal Basis for Firearms Controls, in
Report to the American Bar Association 22
e.g., Caplan, Handgun Control: Constitutional or
Unconstitutional? A Reply to Mayor Jackson, 10 N.C.
Cent. L.J. 53, 54 (1978); Weatherup, supra note 5, at
973-74; Whisker, Historical Development and Subsequent Erosion of the
Right to Keep and Bear Arms, 78 W. Va. L. Rev.
171, 176-78 (1975).
Miller, supra note 6, at 25-28.
Caplan, supra note 7, at 54-55.
e.g., Levin, supra note 5, at 154, 159; Weatherup,
supra note 5, at 973-74.
G. Newton & F. Zimring, supra
note 5, at 255.
L. Kennet & J. Anderson, supra
note 5, at 25-27.
example, Newton and Zimring, fail to cite a single seventeenth or
eighteenth century source for the critical assertion that the English
Convention Parliament of 1688 intended to guarantee only a general, not an
individual, right to have arms. See G.
Newton & F. Zimring, supra note 5, at 254-55, n.12.
Kennet and Anderson conclude that in the seventeenth century firearms "were
not generally held . . . because of their inefficiency, costliness, and
general scarcity," but provide no evidence of their efficiency, cost,
or availability in that period. See L.
Kennet & J. Anderson, supra note 5, at 27.
J. Paterson, Commentaries on the Liberty of the
Subject and the Laws of England Relating to the Security of the Person
442 (London 1877).
C. Greenwood, Firearms Control: A Study of Armed
Crime and Firearms Control in England and Wales 10 (1972).
supra note 7, at 54.
supra note 7, at 176.
supra note 5, at 973-74. For the precise English guarantee of
the rights of the subject to have arms, see The Bill of Rights, 1 W. &
M., Sess. 2, ch. 2 (1689).
H.C. Jour., 1688-93, 21-22; 1 W. & M.,
Sess. 2, ch. 2 (1689).
supra note 5, at 974.
e.g., Caplan, supra note 7, at 53-54; Emery, The
Constitutional Right to Keep and Bear Arms, 28 Harv.
L. Rev. 473-75 (1915); Hays, The Right to Bear Arms, A Study
in Judicial Misinterpretation, 2 Wm. &
Mary L. Rev. 383 (1960); Levin, supra note 5, at 148;
Weatherup, supra note 5, at 964; Whisker, supra note
7, at 175-76.
 Charter of
Connecticut, Charles II, 1 The Public Records of
the Colony of Connecticut 7 (Hartford 1850) [hereinafter cited as
Records of Connecticut]. See also
Charter of the Province of Massachusetts-Bay, William and Mary, 1
Acts and Resolves of the Province of Massachusetts
Bay 14 (Boston 1869).
T. Barnes, The English Legal System: Carryover to
the Colonies 16 (1975).
e.g., Records of Connecticut,
supra note 22, at 285-86; 19 The
Colonial Records of the State of Georgia 137 passim
(Atlanta 1911); The Book of the General Lawes and
Libertyes Concerning the Inhabitants of the Massachusetts 39-41
(Hunt. Lib. reprint 1975) (1st ed. Boston 1648); 1 Records
of the Colony of Rhode Island and Providence Plantations in New England
77, 94 (Providence 1856); W. Billings, The Old
Dominion in the Seventeenth Century 172 (1975).
e.g., Acts of the Grand Assembly of
Virginia 1623-24, Nos. 24 & 25; Acts of
the Grand Assembly of Virginia 1673, Act 2; The Compact with the Charter
and General Laws of the Colony of New Plymouth 44-45 (1836); 8
Records of Connecticut, supra
note 22, at 380; 1 Colonial Laws of New York
161 (1894); South Carolina Stat. No. 206 (1703).
B. Bailyn, The Ideological Origins of the American
Revolution 43 (1967).
e.g., 2 The Records of the Federal
Convention of 1787, 509, 617 (M. Ferrand ed. 1911);
Debates and Proceedings in the Convention of the
Commonwealth of Massachusetts, Held in the Year 1788, 198-99
(Boston 1856); Debates and Other Proceedings of
the Convention of Virginia, 1788, 271 (2d ed. Richmond 1805);
The Federalist Nos. 26, 84 (Hamilton).
versions of sections I, II, & III of this article appear in Malcolm,
Disarmed: The Loss of the Right to Bear Arms in Restoration England
(Bunting Inst., Radcliffe College 1980).
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.
Assizes of Arms, Hen. 2 (1181);
Statute of Winchester, Edw. (1285); 4 &
5 Phil. and M., ch. 3 (1557).
C. Cruickshank, Elizabeth's Army 24-25 (2d
Manuscripts of the sixteenth and seventeenth centuries contain repeated
complaints to this effect. For printed comment, see, e.g.,
J. Morrill, Cheshire, 1630-1660, 26 (1974);
G. Trevelyan, England Under the Stuarts
C. Cruickshank, supra note 31, at
19-20; H. Hallam, The Constitutional History of
England 386 (London 1870).
e.g., R. Ashton, The English Civil War
55-59, 66 (1978); L. Boynton, The Elizabethan
Militia 212 passim, 264-65 (1967); C.
Cruickshank, supra note 31, at 5-11.
L. Boynton, supra note 34, at
R. Burn, supra note 29, at 17-20.
id. at 512.
Statute of Winchester, Edw. (1285).
e.g., 2 Acts & Ords. Interregnum
397-402 (London 1911); An Act for Setling the
Militia of the Commonwealth of England (London 1650); 4 & 5
Phil. & M., ch. 3 (1557); An Act Declaring the
Sole Right of the Militia to Be in the King, 14 Car. 2, ch. 3
G. Sharp, Tracts, Concerning the Antient and Only
True Legal Means of National Defence, By a Free Militia 12 (London
 33 Hen. 8,
ch. 6 (1541).
 2 & 3
Edw. 6, ch. 14 (1549); Statute of Northampton,
2 Edw. 3, ch. 3 (1328).
W. Fisher, The Forest of Essex 214-15
C. Cruickshank, supra note 31, at
occurred, for example, just prior to the outbreak of the English Civil War
in 1642. See Manning, The Outbreak of the English Civil War,
in The English Civil War and After, 1642-1658,
16 (R. Perry ed. 1970). Charles I empowered Catholics who had been
disarmed to rearm in 1642. See A Discourse of the Warr in Lancashire,
62 Chetham Soc. 12-14 (1864); Tracts
Relating to Military Proceedings in Lancashire during the Great Civil War,
2 Chetham Soc. 38-40 (1844).
J. Jones, The Revolution of 1688 in England
77 n.2 (1972).
G. Roberts, The Social History of the People of
the Southern Counties of England in Past Centuries viii-ix (London
Commons Debates 1621, at 318 (1935).
R. Ward, Animadversions of Warre, or a Militaire
Magazine of the Truest Rules and Ablest Instruction For the Managing of
Warre 150 (London 1639).
Latest Remarkable Truths from Worcester, Chester, Salop in
Tracts Relating to the Civil War in Cheshire,
1641-1659, reprinted in 65 Chetham Soc.
(n.s.) 238 app. B (1909).
Cavendish, Earl of Devonshire, Correspondence as Lord Lieutenant of
Derbyshire from 1660 to 1666, Additional MS. 34, 306, fol. 12,
British Library, London.
MS, Historical Manuscripts Commission, 12th Report,
Pt. 7, at 44 (1890).
4 Memoirs of the Verney Family 167 (1899).
E. Thompson, Whigs and Hunters 71 (1975).
evidence of the widespread ownership of firearms is scattered throughout
the personal and public documents of this period. The most accessible
proof is found in the county quarter session records, some of which are in
print, which cite English men and women from all walks of life for misuse
of firearms. See, e.g., Minutes of the
Proceedings in Quarter Sessions Held for the Parts of Kesteven in the
County of Lincoln, 1674-1695, reprinted in
Lincoln Record Soc. 25, 26 (1931); Quarter
Session Records for the County of Somerset, 1607-77, reprinted
in Somerset Rec. Soc. 23-24, 28, 34
(1907-19); Warwick County Records: Quarter Session Order Books,
1625-90, reprinted in Warwick
County Council 6, 7 (1935-53); Worcestershire County Records
Division 1: Documents Relating to Quarter Sessions, in
Worcestershire Hist. Soc. passim
sources cited supra note 61.
e.g., E. Thompson, supra
note 60, at 71; J. Western, The English Militia in
the Eighteenth Century 4, 5 (1965); 4 Memoirs
of the Verney Family 167 (1899); Letter from West to Fleming, Jan.
27, 1667, LeFleming MS, supra note 58, at 44.
92 Clarendon MS 143, Bodleian Library, Oxford.
J. Western, supra note 63, at
id. at 4; Privy Council Registers, P.C. 2, vol. 55, fol. 520 (Jan.
22, 1661), Public Record Office, London.
E. Hyde, 2 The Life
of Edward Earl of Clarendon 117 (Oxford 1827).
3 Memoirs Illustrative of the Life and Writings of
John Evelyn 246 (deBeer ed. 1955).
Treatises Addressed to the Duke of Buckingham, Lansdowne MS 805, fol.
79 British Library, London.
8 H. C. Jour. 5-6; E.
Hyde, supra note 68, vol. 1 at 335.
8 H. C. Jour. 142-43, 161, 163, 167.
id. at 167.
Parl. Hist. Eng., 145 (London 1808-20).
J. Kenyon, The Stuart Constitution 196
(1966); J. Malcolm, Caesar's Due: Loyalty and King
Charles 1642-1646, at 17-21 (1983).
 A militia
act was not passed until the spring of 1662, although a temporary measure
was passed a year earlier. See 13 Car. 2, ch. 6 (1661); 13 &
14 Car. 2, ch. 3 (1662).
Historical Manuscripts Commission, 5th Report
id.; State Papers Domestic, Charles II, S.P. 29, vol. 11,
fols. 146-74 (Aug. 26, 1660), Public Record Office, London; Instructions
to Lords Lieutenants, Whitehall, 1660, Egerton MS 2542, fol. 512,
British Library, London.
sources quoted in Malcolm, supra note 28, at 8-9.
e.g., Letter Book of Thomas Belasyse, Viscount Fauconberg
Lord Lieutenant of the North Riding of Yorkshire, 1665-84, Additional
MS 41,254, fols. 20-22, British Library, London, which reported that the
militia had not been ordered to muster for several years. See also
J. Western, supra note 63, at 48.
e.g., Norfolk Lieutenancy Journal, 1661-1674,
Additional MS 11,601, fol. 29, British Library, London; Earl of
Westmorland Letter Book, 1660-1665, Northamptonshire Militia,
Additional MS 34,222, fols. 25-26, 32, British Library, London;
Westmorland to Vane, July 21, 1662, Clarendon State Papers, vol.
77, fol. 66a, Bodleian Library, Oxford.
MS 34,306, supra note 57, at fol. 14. The King went still
further and, for a time, required militia commanders to keep a portion of
their men on duty at all times. This scheme proved unworkable. See
Additional MS 34,222, supra note 83, at fol. 43; Additional MS
34,304, fol. 44; D. Ogg, England in the Reign of
Charles II 253 (1967).
to Lords Lieutenants, Whitehall, 1660, Egerton MS 2542, supra
note 80, at fol. 512.
Proclamation For Suppressing of disorderly and unseasonable Meetings, in
Taverns and Tipling Houses, And also forbidding Footmen to wear Swords, or
other Weapons, within London, Westminster, and their Liberties",
Sept. 29, 1660, B.M. 669, fol. 26 (13), British Library, London. This and
subsequent proclamations cited in this article are calendared in
R. Steele, Tudor and Stuart Proclamations
(1910). Originals can be found at the British Library and the citations
will be to these.
Proclamation commanding all cashiered Soldiers and other Persons that
cannot give a good account of their being here to depart out of the Cities
of London and Westminster", Dec. 17, 1660, B.M. 669, fol. 26
(37), British Library, London.
Privy Council Registers, P.C. 2, vol. 55, fol. 71 (Dec. 1660), Public
Record Office, London.
Privy Council Register, P.C. 2, vol. 55, fol. 187 (Sept. 4, 1661), fol.
189 (Mar. 29, 1661), Public Record Office, London.
Burrage, The Fifth Monarchy Insurrections, 25
The English Hist. Rev. 722-47 (1910).
H.L. Jour. 243.
1 J. Clarke, The Life of James the Second, King of
England, etc. Collected out of Memoirs Writ of His Own Hand 390-91
Additional MS. 34,222, supra note 83, at fol. 15.
at fol. 17. The seizure of arms and persons was so zealously carried
out--a Derbyshire man claimed his house had been searched nine times in
one week--that in mid-January the King had to issue a proclamation to
reassure outraged Londoners that the customary restrictions against
unwarranted search and seizure were still in effect. See B.M.
669, fol. 26 (49), British Library, London.
B.M. 1851, ch. 8 (133), (134), (135), British Library, London.
proclamation was issued on June 22, 1662. There is no record of a
proclamation for 1663, but on November 18, 1664, June 28, 1665, and June
10, 1670, the proclamation was reissued. See
R. Steele, supra note 87.
 13 Car.
2, ch. 6 (1661); 14 Car. 2, ch. 3 (1662).
John Dalrymple observed that in government rhetoric, "mobs were
swelled into insurrections, and insurrections into concerted rebellion."
J. Dalrymple, 1 Memoirs of Great Britain and
Ireland 26 (2d ed. London 1771-73).
J. Plumb, The Growth of Political Stability
England, 1675-1725, at 21-22 (1967).
id. at 20-21. See also C. Hill,
Reformation to Industrial Revolution 110-11 (1967).
English monarch had only a small bureaucracy and was dependent upon the
nobility and, in particular, the gentry throughout the realm to carry out
numerous functions of government as unpaid volunteers. In reference to the
militia itself, see J. Western,
supra note 63, at 16-17, 63.
13 & 14 Car. 2, ch. 3 (1662-63).
22 & 23 Car. 2, ch. 25 (1671).
very first game act to set a property qualification on the right to hunt
appeared in 1389, eight years after that century's devastating peasant
rebellion. The preamble to 13 Ric. 2, ch. 13, "None shall hunt but
they which have a sufficient living" read: "Item, for as much as
divers artificers, labourers, and servants, and grooms, keep greyhounds
and other dogs, and on the holy days, when good Christian people be at
church, hearing divine service, they go hunting in parks, warrens, and
connigries of lords and others, to the very great destruction of the same,
and sometimes under such colour they make their assemblies, conferences,
and conspiracies for to rise and disobey their allegiance." See
J. Chitty, A Treatise on the Game Laws, and On
Fisheries 368 (2d ed. London 1826); W.
Holdsworth, 4 A History of English Law
19 Hen. 7, ch. 11 (1495); 5 Eliz., ch. 21 (1562); 3 Jac. ch. 13 (1605); 7
Jac. ch. 13 (1609); 13 Car. 2, ch. 10 (1663).
sources cited supra note 110.
Game Act of 1609, in effect until the act of 1671, provided that those who
had personal property of £400 were entitled to hunt. This permitted
merchants and professionals whose wealth was not based on land to hunt.
The Act of 1671, however, abolished this category. Compare 7
Jac., ch. 13 (1609) with 22 & 23 Car. 2, ch. 25 (1671).
J. Chitty, Observations of the Game Laws, with
Proposed Alterations for the Protection and Increase of Game, and the
Decrease of Crime 180 (London 1816).
 22 &
23 Car. 2, ch. 25 (1671).
 From at
least 1665 there was growing distrust of the regime of Charles II. At the
beginning of 1667, Samuel Pepys, a civil servant, found the royal court "[a]
sad, vicious, negligent Court, and all sober men there fearful of the ruin
of the whole kingdom this next year; from which good God, deliver us!"
Cited by D. Witcombe, Charles II and the
Cavalier House of Commons, 1663-1674, at 55 (1966); see
D. Ogg, supra note 84, at 313; 22
& 23 Car. 2, ch. 7 (1671).
judged to be suspicious by the royal administration were those active in
the parliamentary party during the Civil War and its aftermath, and those
who belonged to the Protestant sects that refused to remain within the
Church of England. The Quakers were prominent sufferers. See,
e.g., fol. 18, Additional MS 34,306, British Library, London,
and 13 Car. 2, ch. 6 (1661), a militia act which noted that
since June 24, 1660, less than a month after Charles II's return, "divers
persons suspected to be fanaticks, sectaries or disturbers of the peace
have been assaulted, arrested, detained or imprisoned, [by the militia]
and divers arms have been seized and houses searched for arms." The
militia had specifically been ordered to disarm all persons "notoriously
knowne to be of ill principles or [who] have lately . . . by words or
actions shewn any disaffection to his Majestie or his Government, or in
any kind disturbed the publique peace." Additional MS 34,222, supra
note 83, at 15.
J. Western, supra note 63, at
48-51; Calendar of State Papers Domestic, 1686-87,
at 314 (1964).
II decided to abandon his kingdom in the face of a growing army of his
subjects led by William of Orange and the desertion of his own army. The
realm was thrown into a constitutional crisis, as no Parliament was in
session and only the king could legally summon a parliament. William
consulted with the nobility and former members of the Commons and on their
advice summoned a convention parliament to meet to resolve the kingdom's
succession. He promised to abide by its decision. A convention parliament
had been called in 1659 by George Monck, again in the absence of a
reigning monarch, and it was this body that invited Charles II to return
as king. Unlike its predecessor, however, the Convention Parliament of
1688 was determined to ensure the rights of subjects and to prevent any
infringement by future monarchs. See infra sources cited at note
 We have
only sketchy records remaining of the debates of the Convention
Parliament. The best of these in print are the notes made by John Somers,
chairman of the committee that drafted the English Bill of Rights reprinted
in 2 Miscellaneous State Papers from 1501 to
1726 passim & esp. 407-18 (London 1778). Somers's
notes are punctuated with the angry comments of members at the use of the
Militia Act in particular to disarm law-abiding citizens. Sir John Maynard
was furious that "an Act of Parliament was made to disarm all
Englishmen, whom the lieutenant should suspect, by day or night, by force
or otherwise" and branded it "an abominable thing to disarm a
nation, to set up a standing army." Id. at 407. Another
member argued that there was "no safety but the consent of the
nation--the constitution being limited, there is a good foundation for
defensive arms--It has given us right to demand full and ample security."
Id. at 410. See also L. Schwoerer,
The Declaration of Rights, 1689 (1981) (a recent study of the
 1 W. &
M., Sess. 2, ch. 2 (1689). The English Declaration of Rights drawn up by
the Convention Parliament was approved by the first parliament summoned by
William and Mary and incorporated with the legislation recognizing them as
king and queen. It was thereafter known as the English Bill of Rights.
Weatherup, supra note 5.
id. at 962-64.
Account of the Convention Proceeding, 1688, Rawlinson MS D1079, fol.
10, Bodleian Library, Oxford. The committee was instructed "to
distinguish such of the . . . heads [of grievances] as are introductory of
new laws, from those that are declaratory of ancient rights." The
revised version of their report can be found in 10 H.C.
Jour. 1688-93, at 21-22.
G. Burnet, 2 Bishop Burnet's History of His Own
Time 534 (London 1840).
Weatherup, supra note 5, at 974.
Whigs had sizable majorities on the committees which drafted the
Declaration of Rights, and those most outspoken in favor of a general
possession of arms for the purpose of resisting tyranny were Whigs. See
L. Schwoerer, supra note 120, at
152; and members quoted in J. Somers, supra
note 120, at 107-18, with their affiliation as described by Schwoerer.
See also D. Lacey, Dissent and
Parliamentary Politics in England, 1661-1689, at 382-83, 422-23
Rawlinson MS D1079, supra note 125, at fol. 8.
H.C. Jour., 1688-93, at 21-22.
 1 W. &
M., Sess. 2, ch. 2 (1689).
J. Western, Monarchy and Revolution: The English
State in the 1680's, 339 (1972).
examples of Whig efforts to incorporate into legislation their view that
the citizenry must be armed to prevent tyranny, see 10
H.C. Jour. 621; 5 Parl.
Hist. Eng., supra note 76, at 344; N.
Luttrell, the Parliamentary Diary of Narcissus Luttrell, 1691-1693,
at 444 (H. Horwitz ed. 1972). See also 2 W.
Blackstone, Commentaries 441 (E. Christian ed. London 1793-95)
(editor's comment); and 1 W. Blackstone,
supra note 2, at *140-41.
G. Newton & F. Zimring, supra
note 5, at 255 (quoting from 2 J. Story,
Commentaries on the Constitution 678 (3d ed. 1858)).
acts were: 33 Henry 8, ch. 6 (1541) and 2 & 3 Edw. 6, ch. 14 (1549).
For evidence of their continued enforcement, see sources cited supra
note 61 (relating to quarter session records); G.
Sharp, supra note 43, at 17-18; Rex v. Alsop, 4 Mod. Rep.
51 (K.B. 1691).
supra notes 125-26 and accompanying text.
 1 W. &
M., ch. 15 (1689).
 4 &
5 W. & M., ch. 23 (1692).
July, 1689, members of the House of Commons passed a measure "for
ordering the Forces in the several Counties of this Kingdom," which
was designed to make the militia more efficient, to strengthen local
control over it, and to eliminate its powers to search for and seize
weapons of so-called suspects. The measure ran into opposition in the
House of Lords and was lost when the King dissolved Parliament. See
J. Western, supra note 132, at
340 n.1, 343; J. Western, supra
note 63, at 85-89; 5 Parl. Hist. Eng.,
supra note 76, at 344.
 1 W. &
M. ch. 15 (1689).
 4 &
5 W. & M., ch. 23 (1692).
 22 Car.
2, ch. 25 (1671).
 4 &
5 W. & M., supra note 141.
H. Rolle, Reports 91 (London 1675).
H.C. Jour. 824.
future parliament was always at liberty to amend a statute or to repeal
it. During the debate on this rider an opponent of the measure argued that
it "savours of the politics to arm the mob, which I think is not very
safe for any government." See N.
Luttrell, supra note 133, at 444. The Whig view expressed
later by Blackstone did not yet prevail.
10 H.C. Jour. 824.
5 Ann, ch. 14 (1706). This statute levied a fine against any person or
persons "not qualified by the laws of this realm so to do" who "shall
keep or use any greyhounds, setting dogs . . . or any other engines to
kill and destroy the game." Id.
The Devonshire Quarter Sessions clearly regarded
the possession of firearms as legal after passage of the 1692 Game Act,
for in 1704 it explained that while the houses of unqualified persons
could be searched for dogs, nets and other "engines," no
Protestant was to be deprived of his gun. See
A.H.A. Hamilton, Quarter Sessions from Queen
Elizabeth to Queen Ann 289 (1878).
 5 Ann,
ch. 14 (1706).
J. Chitty, supra note 109, at 83 &
 Rex v.
Gardner, Strange, 2 Reports 1098, 93 Eng. Rep. 1056 (K.B. 1739); 1
R. Burn, supra note 29, at
supra text accompanying note 114.
 Rex v.
Gardner, 93 Eng. Rep. at 1056.
R. Burn, supra note 29, at 443.
Lord Macclesfield sat on an earlier case, King v. King, 3 Geo. 2, in which
the question of whether guns were intentionally omitted from the statute
was raised but never determined. This is noted in the Gardner
decision, along with his comments. See 93 Eng. Rep. at 1056.
Wingfield v. Stratford & Osman, Sayer, Reports 15-17, 96 Eng. Rep. 787
at 16, 96 Eng. Rep. at 787.
(Lee, C.J., concurring).
extensive treatment of this subject see B.
Bailyn, supra note 26. Bailyn writes, for example: "For
the primary goal of the American Revolution, which transformed American
life and introduced a new era in human history, was not the overthrow or
even the alteration of the existing social order but the preservation of
political liberty threatened by the apparent corruption of the [English]
constitution, and the establishment in principle of the existing
conditions of liberty." Id. at 19.
G. Sharp, supra note 43, at 18,
W. Blackstone, Commentaries 411 (E.
Christian ed. 1793-95).
W. Blizard, Desultory Reflections on Police
59-60 (London 1785) (emphasis in original).
supra notes 24-25 and accompanying text.
act stipulated that "each and every free able-bodied white male
citizen . . . between the ages of 18 and 45 . . . shall severally and
respectively be enrolled in the militia." Act of May 8, 1792, 2d
Cong., 1st Sess., ch. 33.