To Keep and Bear Arms: The Origins of an Anglo-American Right.

• Author: Kopel, David B.

Almost as long as Americans have been discussing guns and government restrictions on guns, they have been looking to the example set by Great Britain. And almost without exception, they have misunderstood the legal and social reality of gun control in Great Britain. Historian Joyce Lee Malcolm's(1) new book, To Keep and Bear Arms, does much to correct the confused American mind, particularly regarding the right to bear arms in Great Britain in the latter half of the seventeenth century -- a period of internal turmoil and repression that culminated in the adoption of a British Bill of Rights including an explicit right to arms. The British Bill of Rights is a direct ancestor of the Second Amendment in the American Bill of Rights.

In earlier times, prominent American legal commentators tended to view the British right to arms as barely worth the paper on which it was written. St. George Tucker, author of the American version of Blackstone's Commentaries(2) and the legal commentator most often cited by the U.S. Supreme Court for a quarter of a century,(3) claimed that "[w]hoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England."(4) Moreover, claimed Tucker, "not one man in five hundred can keep a gun in his house without being subject to a penalty."(5) William Rawle, author of the standard constitutional law textbook(6) used in American law schools in the second quarter of the nineteenth century(7) wrote that though English subjects had a nominal right to arms, "An arbitrary code for the preservation of game in that country has long disgraced them."(8) Supreme Court Justice Joseph Story called the American right to bear arms "the palladium of the liberties of a republic,"(9) which served as the ultimate guarantor of all other rights. He distinguished the British right, which he thought "more nominal than real."(10) Tucker, Rawle, and Story, in disparaging the British right, intended to contrast it with the vigorous American right to arms guaranteed by the Second Amendment. They wanted to demonstrate the difference between the restrictive European and free American forms of government.

More recently, courts, legislatures, and commentators have turned the Tucker-Story-Rawle analysis on its head. In the 1960s, New Jersey enacted the most stringent state-level gun control laws in the United States.(11) The Supreme Court of New Jersey rejected a constitutional challenge to the controls. The court reasoned that the American right to bear arms derived from the British right to bear arms, and, that in modern times, the British right had vanished: "[F]or all practical purposes the average citizen cannot lawfully obtain firearms in Great Britain at the present time."(12) Likewise, the North Carolina Supreme Court, in turning aside an argument that the Second Amendment protected an individual right to carry firearms, relied on English legal history as precedent.(13)

The New Jersey and North Carolina courts obtained their information on guns in England almost entirely from an article published in the Northwestern University Law Review.(14) Unfortunately, that article was completely incorrect in its assertion that the average Briton could not lawfully obtain a gun. When Feller and Gotting wrote the article, a Briton could walk into a store and five minutes later walk out with an armload of shotguns. Even today, shotguns are available to almost any Briton without a criminal record, and rifle and handgun permits are available for target shooting.(15)

American politicians in search of justifications for American gun control have also misperceived British gun control laws. Supporters of the U.S. National Firearms Act of 1934,(16) which taxed the transfer of automatic firearms, justified the law in part on the grounds that gun laws in England were already so severe that, according to then Attorney General of the United States, Homer Cummings, "the use and possession, of every kind of firearm, and of the ammunition therefor" required police permission and registration.(17) In fact, at that time an escapee from a British mental institution could walk into a gun store, purchase two dozen shotguns, and stroll away with weapons and ammunition after paying the cashier, no questions asked. There was no need for police permission or registration.(18)

Who, if any, of these American analysts has found the truth? Does the story of the British right to arms offer anything of value to the modern American gun debate? The academic literature has heretofore been sparse. My two books on gun control in Great Britain both focused mainly on twentieth-century gun policy, rather than the story of the 1689 Bill of Rights and its right to arms.(19) The one British book on gun control shares a similar focus.(20) Various law review articles have touched on the history of the British right, but usually only in a few pages as part of a larger article that is mainly about the American Second Amendment.(21) Almost all of the commentators have accepted the claim of the 1689 Convention responsible for drafting the British Bill of Rights that the right to arms was a "true, ancient, and indubitable right" of British subjects, albeit a right subject to various restrictions.(22)

As the Firesign Theater comedy troupe once put it, "Everything you know is wrong."(23) To Keep and Bear Arms sweeps away over two centuries of American -- and British -- misunderstanding of the British right to arms, providing the first clear picture of what the right to arms meant to the British of 1689, as well as what it meant to the Americans of 1791 who drafted the Bill of Rights with the British experience very much in mind.

Malcolm states her radical thesis in the first paragraph of the Preface (p. ix). She argues that before 1689, no right to bear arms existed at all. When the 1689 Convention Parliament decided to guarantee a right to arms, the Convention chose, for political-tactical benefit, to pretend that it was reaffirming an "ancient" right to arms (pp. ix-x). In fact, argues Malcolm, the Convention created the right then and there, for reasons growing directly out of the political conflict of the previous century (pp. ix-xi).

1. GUNS IN BRITAIN BEFORE THE ENGLISH CIVIL WAR

   The story of the British government's concern with arms begins in the mists of Anglo-Saxon times, when every male aged sixteen to sixty bore arms to defend the nation by participating in the "fyrd,"(24) which, in Anglo-Saxon law, was "the military array or land force of the whole country."(25) Malcolm, however, begins her narrative in the Middle Ages. Her first chapter summarizes British arms policy from the Norman Conquest until the seventeenth century. During this period, the British did not view ownership and use of weapons as an individual right; rather it was a duty, sometimes an onerous one, that the government imposed.

   Professional police forces did not exist during the Middle Ages; the government did not create them until the mid-nineteenth century in England -- and in the United States. Civil defense was the responsibility of the people. Whenever someone committed a serious crime, the government required villagers to raise a "hue and cry," and, upon hearing the call, to bring their own weapons and pursue the criminal as long as it took to capture him (p. 2). When the village gates closed at sundown, the villagers guarded the gates, again using their own weapons, keeping "watch and ward" (p. 3). Additionally, the government required able-bodied men to assist the sheriff in suppressing riots or in performing other law enforcement functions, as part of the "posse comitatus."(26)

   All of these law-enforcement duties were primarily local. In addition to following a hue and cry, the government obligated all ablebodied male Britons aged sixteen to sixty to serve in the militia.(27) Although the law required all men to serve, by the late sixteenth century it was common for a county to choose a group of men to receive intensive militia drill in "trained bands" (p. 4). In either the general militia or the specialized trained bands, the men-at-arms were freeholders, craftsmen, or other middle-class citizens under the command of upper-class men of the community.(28)

   In this context, until the seventeenth century, British "gun control" laws did not intend to disarm ordinary Britons, even Britons who were not legally free. Rather, weapons controls focused on forcing Britons to supply their own weapons, and sometimes on specifying what kinds of weapons were suitable for persons of various stations in life (p. 10).

   Gun controls, in the sense that modern Americans might recognize, were rare and generally ineffectual. It was illegal to shoot a gun in or near a town except in self-defense (p. 10). A statute of Henry VIII prohibited poor people from owning handguns.(29) A 1553 decree of Edward VI ordered "all persons who shoot guns" to register themselves with the local justice of the peace, but a legal guide for Justices of the Peace in the early 1600s asked "quaere if this now be in use."(30) In 1569 Queen Elizabeth's Privy Council suggested that the government should centrally store militia arms -- a proposal that aroused such intense opposition that the Council immediately withdrew it (p. 10). The government did, however, maintain a monopoly on the production of saltpeter and gunpowder (p. 11), as did many continental governments.

   The fact that ordinary Englishmen, rather than a standing army or foreign mercenaries,(31) defended England was a great source of pride to many Englishmen, though they often viewed actual militia duty as a nuisance, and there are numerous court records of prosecutions for failure ot perform militia duties or local law enforcement duties (pp. 4-5). When times were peaceful, militia musters were rare or nonexistent.(32)

   While restrictions on gun ownership in...