Author:O'Scannlain, Diarmuid F.


Good evening. It is a great honor and a high privilege to be delivering the Clynes Lecture and to be a part of the University of Notre Dame's London Law at 50 Speaker Series. I want specially to thank Professor Michael Addo, the director of this wonderful Law Centre, for his extraordinary hospitality to Maura and me, and to thank Dean Nell Newton and Pro fessor A.J. Bellia--I am proud to say a former law clerk of mine--for extending the invitation to speak here tonight. (1)



One provision of the U.S. Constitution has been much in the news lately: the Second Amendment, which protects the right to keep and to bear arms. Due to several recent tragic school shootings, most recently in Parkland, Florida, a debate has been raging in the United States about the proper regulation of firearms. Proposals abound for wider background checks, registration and permitting requirements, and limitations on the types of weapons that can be privately owned or sold. Meanwhile, courts across the country have been routinely asked in the past several years to evaluate whether existing legal restrictions are consistent with the constitutional right. The tension between the Constitution and the budding restrictionist Zeitgeist has even led one distinguished jurist--retired Supreme Court Justice John Paul Stevens--to urge just three weeks ago, in the pages of the New York Times, that gun control proponents "should demand a repeal of the Second Amendment." (2) The call to amend the American Constitution was sufficiently significant that it received considerable news coverage from major outlets throughout the United Kingdom. (3)

It is definitively not my intention today to wade into such debates about the wisdom of the Second Amendment or to deal with pending or recent court interpretations. Rather, I want to explore how it came to be and what role British history had in its genesis. For Americans like myself, such history helps us to understand the meaning of our own Constitution. For the Britons here, it is a powerful example of how your own constitutional principles (4) shaped the legal landscape of far-flung countries once within the British Empire. And for those simply interested in law as a discipline, irrespective of geography, I hope this lecture serves as a useful case study of how distant history can help contemporary lawyers interpret the meaning of a legal text adopted over 225 years ago.


As I have suggested, the precise contours of the Second Amendment right are unsettled, and many cases seeking to define it either are before my court now or are likely to come before it and other federal courts. So, everything I say should be taken simply as a description of history by an American judge, not as an opinion on, or prediction of, the future evolution of American law in this area. The only definitive legal conclusions I will offer are those already settled by the Supreme Court of the United States.


Before getting into the history, one might ask: Does medieval and early modern English history really matter? In my role as a federal appellate court judge, I can safely say that, for me, the answer is yes, because our Supreme Court has said so. In the landmark 2008 case District of Columbia v. Heller, the Supreme Court was asked to decide for the first time whether the Second Amendment conferred an individual right to keep and to bear arms, as opposed to a right to use arms as part of an organized militia. Invoking both "text and history," the Court said that it did. (5) The Court explained that such meaning was "strongly confirmed by the historical background of the Second Amendment," (6) and a key part of the "historical background" surveyed by the Court was indeed English history. (7)


The necessity of turning to history flows from a tension between two foundational Anglo-American principles: on the one hand, unalienable rights; and on the other, democratic self-governance. Like all constitutional rights, the Second Amendment protects an individual's liberty at the expense of limiting the range of policy choices available to the polity. If the Second Amendment right is arbitrarily confined, individual liberty is lost; if the right is capriciously expanded, democratic self-governance on questions of public safety is nullified. To know the correct balance, we judges must apply neutral principles of legal interpretation to give fixed meaning to the democratically enacted constitutional provision, based on the popular understanding of those who adopted it.


Which begs an obvious question: What did the ratifying popular majorities in the year 1791 mean when they adopted the Second Amendment to limit the powers of the newly established government?

One thing we do know is that they chose a somewhat inscrutable text. It 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." (8) The meaning of the unique prefatory clause discussing the militia has famously been the subject of much debate, but tonight we focus on the first ten words of the operative clause. What did the ratifying public understand to be the meaning of "the right of the people to keep and bear Arms"?

It is in answering this question that the English historical experience really does matter because the newly independent Americans understood their rights against the backdrop of the English legal tradition. (9) As the Supreme Court put it a century later, "the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors." (10)

So, let us turn to the relevant English history to explore what light it sheds on the American right to keep and to bear arms. (11)


To begin, it is worth noting that a right to have arms is not among the most ancient in the English tradition. (12) For instance, Magna Carta enshrines the principle of due process of law before a person can be deprived of liberty or property, but nowhere does it mention a right to have arms. (13)

Rather, the story of the rise of the English right to have arms begins in earnest during the English Civil War of the 1640s between King Charles I and Parliament. The immediate spark for the war was a clash over who would control the militia, leading both sides to scramble for possession of as many arms as possible. (14) Once the parliamentary forces had triumphed, the Interregnum government moved to reorganize and to repurpose the militia. (15) A new Militia Act transformed the militia from its traditional role of keeping the peace and suppressing insurrection into a politicized force to disarm Catholics, Cavaliers (the royalist supporters of Charles I), and other dissenters. (16)

When fortunes changed again and Charles II became king, the Restoration government passed yet another Militia Act, which made clear that the king had sole command of the militia, and which formalized broad discretion for officers to search for and to seize weapons from any person "dangerous to the Peace of the Kingdom." (17) At the same time, a series of proclamations declared that, at least formally, all who had fought for Parliament in the English Civil War were prohibited from carrying firearms. (18)

So, between the reigns of Charles I and Charles II, the use of the militia and selective arming and disarming of English subjects had become a key part of the factional disputes that roiled Britain in the middle of the seventeenth century.


The stage was set, then, for weapons holding to be a central component of the final great clash between the Crown and Parliament, which ultimately led to a codified English right to have arms.



The next major step in this process after the Restoration-era Militia Act was the Game Act of 1671. In many respects, it mirrored prior game acts that prohibited the use of certain weapons for hunting in order to reserve hunting as a sport for the nobility and gentry. (19) But for the first lime, guns were included in the list of per se prohibited devices. (20) And a gamekeeper could unilaterally search suspects' premises for prohibited arms, as could any other person authorized by a warrant from a single justice of die peace. (21) Moreover, the property and wealth requirements for hunting were raised to be fifty times the level required to vote. (22)

At least on paper, then, for the first time, the vast majority of Englishmen were formally prohibited from having guns. (23) Yet, despite the Game Act's sweeping provisions, it was unevenly enforced, (24) and it may not have become a cause for concern but for a series of political crises that beset England in the 1670s and 1680s and saw both it and the Militia Act used for ulterior purposes.


Those crises began in earnest in 1678 with a widespread anti-Catholic hysteria inspired by a supposed conspiracy known as the Popish Plot. (25) In response, Charles II issued a proclamation temporarily disarming all English Catholics. (26)

That episode was followed quickly by the Exclusion Crisis between the Crown and Parliament, centered around Charles's brother James. James's conversion to Catholicism had been exposed in 1673, having refused to affirm his allegiance to the Church of England when Parliament passed the Test Act requiring such an oath for all public officials. (27) In the wake of the Popish Plot scare, Parliament sought to exclude James from the throne, leading Charles II to dissolve three successive parliaments between 1679 and 1681. (28) As part of the exclusion debate, some Members of Parliament (MPs) sought to arm Protestants as protection against royally backed...

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