CUFOA

Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis

Armes for Their Defense;
An Inherited, Historical, Canadian Right

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Q.B. No. 810 of 2007

IN THE COURT OF QUEENíS BENCH FOR SASKATCHEWAN

JUDICIAL CENTRE OF SASKATOON

IN THE MATTER OF AN APPLICATION FOR A JUDICIAL REVIEW PURSUANT TO THE PROVISIONS OF PART 52 OF THE RULES OF COURT;

AND IN THE MATTER OF AN APPLICATION FOR DECLARATION DIRECTED TO SECTION 117.03 OF THE CRIMINAL CODE:

BETWEEN:

EDWARD B. HUDSON
APPLICANT

AND

THE ATTORNEY GENERAL OF CANADA
RESPONDENT

 

 

AFFIDAVIT OF JOYCE LEE MALCOLM

I, Joyce Lee Malcolm, of the City of Arlington, in the State of Virginia, United States of America, MAKE OATH AND SAY AS FOLLOWS:

1. That I hold a bachelor's degree from Barnard College, a Master of Arts and a Doctor of Philosophy from Brandeis University, and am a Fellow of the Royal Historical Society.

2. That I am an historian and constitutional scholar specializing in seventeenth century English constitutional history, focusing on the development of individual rights in Great Britain and America.

3. That I am Professor of History at Bentley College, Waltham, Massachusetts, and concurrently am Professor of Law at George Mason University, School of Law, Arlington, Virginia.

4. That I am the author of many articles on gun control, the Second Amendment, and individual rights

5. That I am the author of six books including To Keep and Bear Arms: The Origins of an Anglo-American Right, Guns and Violence: The English Experience, and The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, and as such have knowledge of the matters and facts herein deposed.

6. That attached as "Exhibit A" is my Curriculum Vitae and Publications List.

7. That attached as "Exhibit B" is a copy of the English Bill of Right of 1689.

8. That attached as "Exhibit C" is a copy of my article, "The Right of the People to Keep and Bear Arms: The Common Law Tradition."

9. That attached as "Exhibit D" is a copy of my article, "Gun Control's Twisted Outcome."

10. That attached as "Exhibit E" is a copy of my article, "Where I come from, our homes are still our castles."

11. That as noted in To Keep and Bear Arms: The Origins of an Anglo-American Right, p.169, (FN.29) in Great Britain as late as 1877 - ten years after the proclamation of the British North America Act, 1867 - prominent Britons considered "the right of each to carry arms ... for his own protection ... a right of nature indelible and irrepressible ... ."

12. That I take this Affidavit in support of the Notice of Motion to declare that Section 117.03 of the Criminal Code is ultra vires the Parliament of Canada on the ground that it is inconsistent with the Preamble to the the British North America Act, 1867 and violates ss 26 and 7 of the Canadian Charter of Rights and Freedoms.

 

SWORN before me at the City of )

Arlington, in the Sate of )

Virginia, USA, this 15th day of )

July 2007. )

)

)

_____________________ )

A Commissioner for Oaths in and for

the State of Virginia.

My commission expires

 

This document is delivered by:

Edward B. Hudson
Applicant
402 Skeena Court
Saskatoon, Saskatchewan S7K 4H2
Telephone: (306) 242-2379

 

Exhibit A

Curriculum Vitae and Publications List

JOYCE LEE MALCOLM

PROFESSOR OF LEGAL HISTORY

GEORGE MASON UNIVERSITY SCHOOL OF LAW

George Mason University School of Law

1121 University Blvd. W., apt. 708

3301 Fairfax Drive Silver Spring, MD 20902

Arlington, Virginia 22201 (tel) 301-593-1718

(tel) 703-993-1950

jmalcolm@gmu.edu

DEGREES

Ph.D., M.A., Brandeis University, Comparative History

B.A. Barnard College, Distinction in History

FRHS Fellow, Royal Historical Society

ACADEMIC AND RESEARCH POSTS

George Mason University School of Law

Professor of Legal History, 2006-present

National Endowment for the Humanities

Director, Division of Research Programs, 2005-2006

Princeton University

Visiting Professor, Politics Department, 2003-2004

Fellow, James Madison Program in American Ideals and Institutions, 2003-2004

Massachusetts Institute of Technology

Senior Advisor, Security Studies Program, Center for International Studies, 1997-present

Bentley College

Professor of History, 1992-present; Associate Professor, 1988-1992

Chair, Department of History, 1992-1994

Massachusetts Center for Renaissance Studies

Visiting Scholar, 1999-2001

Bye Fellow, Robinson College, Cambridge University

1989-present

Founder and Director, New England Heritage Center,

1986-2001

National Park Service, Consultant

Early American Legal and Social History, 1982-1983

Boston University

Assistant Professor of History, 1978-1979

Northeastern University

Assistant Professor of History, part-time

Cambridge University

Teaching and Supervising Candidates in the Modern History Tripos,

PROFESSIONAL AFFILIATIONS

Fellow, James Madison Program, Princeton University

The Historical Society, Board of Directors

MIT Security Studies Program, Senior Advisor

Fellow, Royal Historical Society

Northeast Conference on British Studies, Vice President

Robinson College, Cambridge University, Bye-Fellow

TEACHING INTERESTS

Major Fields of Specialization: Constitutional and Legal History, The Individual and the

State, especially the development of individual rights in Great Britain and America; War and Society; Crime, Violence and Public Policy; comparative government

Additional Fields: Early Modern Britain, Irish History, Early Modern Europe

PUBLICATIONS

BOOKS

Stepchild of the Revolution: A Slave Child in Revolutionary America, Yale University Press, forthcoming.

Null and Void: The Origins of American Judicial Review work in progress.

Guns and Violence: The English Experience, Harvard University Press, May, 2002,paperback September 2004. This book examines the relationship between armed citizens and violent crime by analyzing the English experience from the late Middle Ages to the present. A Portuguese language edition will be published in Brazil 2004. The book was reviewed in the Wall Street Journal and Fox News online and widely discussed both here and abroad.

The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols.,Liberty Classics, May, 1999. I edited, introduced and compiled this collection. The tracts deal with key constitutional debates and issues basic to modern American and British political philosophy and practice.

To Keep and Bear Arms: The Origins of an Anglo-American Right, Harvard University Press, 1994, paperback, 1996. First full-scale study by a professional historian of the origins of a significant and controversial liberty, the right to be armed. Three printings in its first 6 months.
***Cited with approval Supreme Court opinion, Jay Printz, et. Al., June 1997.
***Singled out by Supreme Court Justice Antonin Scalia as an "excellent study", A Matter of Interpretation: Federal Court and the Law (Princeton, 1997). Widely cited in court opinions and scholarly literature, most recently by the Supreme Court of Oregon in State of Oregon v. Mark Lee Hirsch, June 23, 2005.

Caesarís Due: Loyalty and King Charles, 1642-1646, Royal Historical Society Monograph Series (London, 1984), Humanities Press (USA, 1984). This is an analysis of public opinion and loyalty during the English Civil War.

The Scene of the Battle, 1775, Department of the Interior (Fall, 1985). Original investigation of the people and setting of the battle of Lexington and Concord. It has been used in both historical writing, and as a guide for restoration of the Minute Man National Historical Park.

CHAPTERS IN EDITED BOOKS

"A King in Search of Soldiers: Charles I in 1642," in The English Civil War, International Library of Essays in Military History (forthcoming, June 2007).

"Moral Strangers: Royalist Loyalty, Charles II and the Scots Invasion of 1651," in book of essays on royalists (forthcoming, Cambridge University Press).

"Abridged: The Second Amendment," in You Decide: Current Debates in American Politics (2 editions, third edition forthcoming).

"The Novelty of James Madisonís Constitutionalism," in James Madison and the Future of Limited Government (Washington, D.C., 2002).

"The Right of the People to Keep and Bear Arms: The Common Law Tradition," Hastings Constitutional Law Quarterly, vol. 10, no. 2 (Winter,1983) reprinted in The Bill of Rights and American Legal History, ed. Paul L. Murphy, Garland Press (1991); in Controversies in Constitutional Law, Gun Control and the Constitution, vol. III, Garland Press (1993); in Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Garland Press, 1994).

ARTICLES:

Clive Emsley, Hard Men: Violence in England since 1750, review, English Historical Review, forthcoming.

"The UNís Global Campaign to Disarm Civilians: Wisdom or Folly?" Breakthroughs, vol. XIV, no. 1, Massachusetts Institute of Technology, Spring, 2005, pp. 22-30.

"Firearms (non-military)," essay for Encyclopedia of the New American Nation, Scribers, in press.

Regular contributor to website of Social Affairs Unit, UK (socialaffairsunit.org.uk). The Social Affairs Unit is a British foundation that publishes "intelligent comment and serious articles and reviews on culture high and low" contributed by a roster of distinguished British scholars. See published essays below.

"Time for the Police to Be Armed and for Home Owners to Have the Right to Protect Themselves," December 8, 2005.

"9/11, 7/7 and Hurricane Katrina: The Benefits of the Disaster Blame Game," September 21, 2005.

"The London Bombings: Britainís Pearl Harbor?" August 25, 2005.

"A Tale of Two Documents: The EU Constitution vs. the US Constitution" July 4, 2005.

"The Cost of Playing `Letís Pretendí: an American Perspective on the Demise of the Irish Moderates," June 1, 2005.

"Civil Liberties Cannot Be Defended Selectively," March 30, 2005.

"The People vs Super-Nanny: The Options for Hunters and Householders," February, 18, 2005.

"Why Parliament will not restore the householderís right to self-defence," January 12, 2005.

"Bashing Burglars: The Right to Self-Defence," December, 2004.

"That Dog Donít Hunt: Hunting and Politics in America and Britain," November, 2004.

"A Rescue Effort to Save Diplomatic and Military History," Historically Speaking, July/August, 2004, pp. 40-41.

"Self-Defense: An Endangered Right," cover essay, Cato Policy Report, Cato Institute, vol. XXVI, no. 2, March-April, 2004.

"Lessons of History: Firearms Regulation and the Reduction of Crime," Texas Review of Law and Politics, vol. 8, no. 1, Fall, 2003, pp. 175-187.

H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics, book review, American Historical Review, April, 2004, pp. 517-518.

"Gun Control in England: The Tarnished Gold Standard," Firearms and Public Policy, vol. 16, Fall 2004, pp. 123-134.

"Terror in Renaissance Europe: A Sampler," Massachusetts Center for Renaissance Studies Journal, Spring 2004.

"Gun Laws and Policies: A Dialogue," Focus on Law Studies, American Bar Association, vol. XVIII, no. 2 (Spring, 2003).

"Infringement," Common_Place, vol. 2, no. 4, July, 2002. This was a special issue with roundtables on controversial aspects of the Constitution. This essay was reprinted in John T. Rourke, ed., You Decide, Longmanís Publishers (White Plains, 2003) and will appear in the 2nd edition in press.

Akhil Amar, The Bill of Rights: Creation and Reconstruction, book review, American Historical Review, vol. 107, no. 1 (February, 2002), pp. 177-178.

Don Kates and Gary Kleck, Armed: New Perspectives on Gun Control, review, Ideas on Liberty, December, 2002, 246-247.

Michael Mendle, ed., The Putney Debates of 1647: The Army, the Levellers, and the English State, book review, Journal of Interdisciplinary History, January, 2003.

Review essay, Arming America: The Origin of a Gun Culture by Michael Bellesiles, University of Texas Law Review, vol. 79, no. 6 (May, 2001) pp. 1657-1676. (this law review is one of the 5 most widely read).

"The Missing Mob, or Why Charles I Was Not Rescued," North American Society forCourt Studies, Spring, 2000.

Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, book review, American Historical Review, June 2000, pp. 931-932.

"Doing No Wrong: Law, Liberty and the Constraint of Kings," Journal of British Studies, vol. 38, no. 2 (April, 1999), pp. 161-186.

"The Vanishing Right of Self-Defence in England," Breakthroughs, MIT Security Studies Program, vol. VIII, no. 1, spring, 1999.

"The Second Amendment and the Individualís Right to Be Armed," Statement to the US Senate Committee on the Constitution, expert witness, September 23, 1998.

"The Origins and Intent of the Second Amendment," Statement to the US House of Representatives Judiciary Committee Subcommittee on Crime, expert witness, April 5, 1995.

"Gun Control and the Constitution: Sources and Explorations of the Second Amendment," review essay, University of Tennessee Law Review, vol. 62, no. 3 (Spring, 1995), pp. 813-821.

"The Creation of a `True, Ancient, and Indubitableí Right: The English Bill of Rights and the Right to Be Armed," Journal of British Studies, 32 (July, 1993), pp. 226-49.

"The Role of the Militia in the Development of the Englishmanís Right to Be Armed: Clarifying the Legacy," Journal of Firearms and Public Policy, vol. 5,no. 1 (Fall, 1993), pp. 139-152.

"Charles II and the Restoration of Royal Power," The Historical Journal, 35, 2 (1992), pp. 307-330. (The Historical Journal is published by Cambridge University).

"That Every Man Be Armed: The Evolution of a Constitutional Right," review essay, The George Washington Law Review, vol. 54, nos. 2 & 3 (January & March, 1986), pp. 452-464. This was a special issue on civil right and civil liberties. My essay was reprinted in Controversies in Constitutional Law, Gun Control and the Constitution, vol. II, Garland Press (1993).

"The Right of the People to Keep and Bear Arms: The Common Law Tradition," Hastings Constitutional Law Quarterly, vol. 10, no. 2 (Winter,1983), pp. 285-314. This article has been widely cited in books, court decisions and law review articles and reprinted in major collections, for example, The Bill of Rights and American Legal History, ed. Paul L. Murphy, Garland Press (1991); Controversies in Constitutional Law, ed. Paul Finkelman, Gun Control and the Constitution, vol. III, Garland Press (1993); and Robert Cottrol, ed., Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Garland Press, 1994).

SELECTED ESSAYS AND JOURNALISM

"Mad Dogs and Englishmen," Op-Ed essay, Wall Street Journal, June 17, 2006.

"Where I come from, our homes are still our castles," opinion piece, British Sunday Telegraph, October 31, 2004. The Sunday Telegraph has the second largest circulation among Sunday papers nationally. Also online at www.telegraph.co.uk. Reprinted in First Freedom, January issue.

"The Case for Self Protection," The American Legion Magazine, October, 2004, pp. 40-44. 2.7 million subscribers, over 4 million readers. This essay has been reprinted in six different journals.

"Disarming History: How Arming America Was Exposed as a Fraud," Reason Magazine, March, 2003, pp. 22-29.

"Gun Control in Great Britain: A Failed Policy," BBC News Online feature essay, January 14-15, 2003. The BBC News online is second in size only to CNN news online and gets 12 million hits a day.

"Gun Controlís Twisted Outcome," Reason Magazine, November, 2002, pp. 20-25.

"Trigger Unhappy," cover essay, Financial Times Weekend Edition, June 22, 2002.

"Guns & Violence," opinion piece, Times Higher Education Supplement, June 21, 2002.

"Targeting a Myth," cover essay, Focus section, Boston Sunday Globe, May 26, 2002, pp.D 1-2. This article averaged the 2nd greatest number of online hits the entire week.

"Concealed Weapons," Reason Magazine, vol. 32, no. 8, January 2001, pp. 46-49.

Opinion Piece, "English Are Becoming the Slaves of Ruffians," The Providence Journal, December 1, 1998.

Opinion Piece, "Of Guns and Knitting Needles," The Washington Times, January 14, 1999.

Guest Historian, USA Today, Op-Ed page, "Mistrust of government: Key to American History," June 23, 1995. This piece was reprinted in USA Today European edition. I have also written a number of articles on constitutional issues carried by the Knight-Ridder wire service.

MEDIA

Interviewed on numerous radio and television talk shows including the following:

Gene Burns Program, KGO Radio San Francisco (ABC Radioís #1 station for Northern California), September 22, 2006.

BBC Radio 5, Late Night Live with Phil Williams, December 19, 2005.

Michigan Public Radio, Ann Arbor, Michigan, Jack Losenberry Program, October 5, 2005

BBC Radio 5, Sunday Breakfast Program, March 13, 2005

BBC Radio 5, "Up all Night," December, 2004.

Dan Pierce Program, largest radio network in New Hampshire, June 24, 2004.

Lee Rogers Program, KSFO-radio, San Francisco, July 7, 2003.

Alan Jones Programme, Radio 2GB Sydney, Australia, Jun 4, 2003.

Documentary film, "Michael and Me," March 29, 2003 on Michael Moore.

BBC Radio 5, Matthew Bannister host, January 15, 2003.

BBC Radio 5, "Up All Night," January 2, 2003.

BBC World Service, "Talking Point," October 27, 2003.

The Global Village, WLIB, National Public Radio, New York City, September 9, 2002.

Glen Mitchell Show, National Public Radio, Dallas, August 23, 2002.

Laura Ingraham Show from Washington, syndicated, AM840, August 16, 2002.

WGBH (PBS TV), "Greater Boston with Emily Rooney," July 9, 2002. Also appeared on this program December, 1998.

BBC Radio 4, "Womenís Hour," July 4, 2002.

Ron Smith Show, WBAL AM1090 Baltimore area, July 2, 2002.

National Public Radio, KPCC Pasadena, "Talk of the City," June 5, 2002.

Leherer News Hour, PBS, May 8, 2002.

National Public Radio, "Talk of the Nation," July, 1998, February, 1996.

Wisconsin Public Radio for documentary, aired March, 2001.

Barbara Simpson Talk Show, Radio Station KSFX San Francisco, largest AM station in Bay area, September,1999.

Appeared in documentary "History of Women and Firearms," History Channel, November, 1998.

HONORS & FELLOWSHIPS

Outstanding Scholarly Contribution Award, Bentley College, 2005

James Madison Program Fellow, Princeton University, 2003-2004

Visiting Professor, Department of Politics, Princeton University, 2003-2004

Earhart Foundation, Research Fellowship Grant, 2003-2004

Innovation in Teaching Award, Bentley College, 2002

Rauch Grant, 2002

Summer Research Grants, Bentley College, 2005, 2004, 2001, 1999, 1995

Faculty Affairs Committee Grant, 2001

Visiting Scholar, Liberty Fund, January-June 2000

Jasper and Marion Whiting Foundation Fellowship, 1996-1997

Earhart Foundation, Research Fellowship Grant, 1996-1997

Fletcher Jones Foundation Fellow, Huntington Library, San Marino, California, 1991

Research Fellowship, Bentley Institute for Research, 1991-1992

Bye-Fellow, Robinson College, Cambridge University, 1989-present

Nominee, CASE Professor of the Year, Bentley College, 1987

Excellence in Research Award, Bentley College, 1986

Visiting Fellow, Harvard Law School, 1981-1982

Fellowship in Legal History, American Bar Foundation, 1980-1981

Mark DeWolfe Howe Research Grant, Harvard Law School, 1980-1981

NEH Fellowship for Independent Research and Study, 1979-1980

Fellowship, Radcliffe Institute, Harvard University, 1979-80

 

Exhibit B

English Bill of Right of 1689

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown

Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight [old style date] present unto their Majesties, then called and known by the names and style of William and Mary, prince and princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following, viz.:

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;

By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;

By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

By violating the freedom of election of members to serve in Parliament;

By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;

And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;

And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;

And excessive fines have been imposed;

And illegal and cruel punishments inflicted;

And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;

All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight [old style date], in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters elections having been accordingly made;

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; to which demand of their rights they are particularly encouraged by the declaration of his Highness the prince of Orange as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said Highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights which they have here asserted, and from all other attempts upon their religion, rights and liberties, the said Lords Spiritual and Temporal and Commons assembled at Westminster do resolve that William and Mary, prince and princess of Orange, be and be declared king and queen of England, France and Ireland and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them, the said prince and princess, during their lives and the life of the survivor to them, and that the sole and full exercise of the regal power be only in and executed by the said prince of Orange in the names of the said prince and princess during their joint lives, and after their deceases the said crown and royal dignity of the same kingdoms and dominions to be to the heirs of the body of the said princess, and for default of such issue to the Princess Anne of Denmark and the heirs of her body, and for default of such issue to the heirs of the body of the said prince of Orange. And the Lords Spiritual and Temporal and Commons do pray the said prince and princess to accept the same accordingly.

And that the oaths hereafter mentioned be taken by all persons of whom the oaths have allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.

I, A.B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary. So help me God.

Upon which their said Majesties did accept the crown and royal dignity of the kingdoms of England, France and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration. And thereupon their Majesties were pleased that the said Lords Spiritual and Temporal and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly. Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament assembled, for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all time to come. And the said Lords Spiritual and Temporal and Commons, seriously considering how it hath pleased Almighty God in his marvellous providence and merciful goodness to this nation to provide and preserve their said Majesties' royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly and in the sincerity of their hearts think, and do hereby recognize, acknowledge and declare, that King James the Second having abdicated the government, and their Majesties having accepted the crown and royal dignity as aforesaid, their said Majesties did become, were, are and of right ought to be by the laws of this realm our sovereign liege lord and lady, king and queen of England, France and Ireland and the dominions thereunto belonging, in and to whose princely persons the royal state, crown and dignity of the said realms with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining are most fully, rightfully and entirely invested and incorporated, united and annexed. And for preventing all questions and divisions in this realm by reason of any pretended titles to the crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquility and safety of this nation doth under God wholly consist and depend, the said Lords Spiritual and Temporal and Commons do beseech their Majesties that it may be enacted, established and declared, that the crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties and the survivor of them during their lives and the life of the survivor of them, and that the entire, perfect and full exercise of the regal power and government be only in and executed by his Majesty in the names of both their Majesties during their joint lives; and after their deceases the said crown and premises shall be and remain to the heirs of the body of her Majesty, and for default of such issue to her Royal Highness the Princess Anne of Denmark and the heirs of the body of his said Majesty; and thereunto the said Lords Spiritual and Temporal and Commons do in the name of all the people aforesaid most humbly and faithfully submit themselves, their heirs and posterities for ever, and do faithfully promise that they will stand to, maintain and defend their said Majesties, and also the limitation and succession of the crown herein specified and contained, to the utmost of their powers with their lives and estates against all persons whatsoever that shall attempt anything to the contrary. And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist, the said Lords Spiritual and Temporal and Commons do further pray that it may be enacted, that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or marrying as aforesaid were naturally dead; and that every king and queen of this realm who at any time hereafter shall come to and succeed in the imperial crown of this kingdom shall on the first day of the meeting of the first Parliament next after his or her coming to the crown, sitting in his or her throne in the House of Peers in the presence of the Lords and Commons therein assembled, or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her taking the said oath (which shall first happen), make, subscribe and audibly repeat the declaration mentioned in the statute made in the thirtieth year of the reign of King Charles the Second entitled, _An Act for the more effectual preserving the king's person and government by disabling papists from sitting in either House of Parliament._ But if it shall happen that such king or queen upon his or her succession to the crown of this realm shall be under the age of twelve years, then every such king or queen shall make, subscribe and audibly repeat the same declaration at his or her coronation or the first day of the meeting of the first Parliament as aforesaid which shall first happen after such king or queen shall have attained the said age of twelve years. All which their Majesties are contented and pleased shall be declared, enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled and by the authority of the same, declared, enacted and established accordingly.

II. And be it further declared and enacted by the authority aforesaid, that from and after this present session of Parliament no dispensation by _non obstante_ of or to any statute or any part thereof shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament.

III. Provided that no charter or grant or pardon granted before the three and twentieth day of October in the year of our Lord one thousand six hundred eighty-nine shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law and no other than as if this Act had never been made.

 

Exhibit C

"The Right of the People to Keep and Bear Arms:

The Common Law Tradition."

By Joyce Lee Malcolm [*]

Introduction [**]

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," [1] 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. [2] 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 [3] 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. [4]

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. [5] 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."[6]

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. [7] 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, [8] and, alternatively, that all able-bodied men constituted the militia. [9] 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. [10] 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," [11] 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. [12] Neither set of authors provides more than cursory evidence. [13] 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" [14] and a second noted that with only "minor exceptions" the Englishman's "right to keep arms seems not to have been questioned." [15]

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,'" [16] 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." [17] 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." [18] 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" [19] he could find "no recognition of any personal right to bear arms." [20] 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. [21] 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." [22] Furthermore, the entire body of common law, with the exception of those portions inappropriate to their new situation, crossed the Atlantic with the colonists. [23] 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. [24] Indeed, the colonies began very early requiring residents to keep firearms and establishing militias. [25]

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 politics. [26]

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. [27] 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 models.

I. The Traditional Obligation to be Armed [28]

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. [29] For larger scale emergencies, such as invasion or insurrection, a civilian militia was intermittently mustered for military duty. [30] 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. [31] 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. [32] 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. [33] 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. [34] 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. [35]

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." [36] Villagers who preferred not to get involved were subject to fine and imprisonment. [37] As an additional incentive to aid in crime prevention, local residents were expected to make good half the loss caused by robbers or rioters. [38]

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. [39] Widows, disabled men, and other townsmen unable to carry out the task had to hire substitutes to serve in their stead. [40]

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. [41] 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. [42] 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. [43] 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." [44]

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." [45] 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." [46] 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. [47] 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." [48]

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. [49] 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. [50] 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. [51]

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," [52] 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. [53] 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." [54]

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. [55]

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." [56] 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." [57] 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. [58] 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. [59] A country curate in the early eighteenth century, unqualified to hunt and certainly no soldier, nonetheless owned two guns and a blunderbuss. [60] While wealthier citizens usually owned more weapons, firearms seem to have been well distributed throughout the community. [61] Quarter Session records reveal that men charged with illegal use of a gun for hunting were most often poor laborers, small farmers, or craftsmen. [62] This is not surprising, since guns abounded during and after the Civil War [63] 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. [64] 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. [65] 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. [66] 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 guildhall. [67]

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." [68] 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." [69]

It is scarcely surprising, therefore, that the wild rejoicing that greeted Charles II upon his return to London in May, 1660 [70] 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." [71] 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." [72]

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. [73] 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." [74] 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. [75]

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." [76] The struggle over control of the militia had driven the realm to war in 1642; [77] 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. [78] 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." [79] 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. [80] 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. [81] 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. [82] 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. [83]

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. [84] 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. [85] All arms and munitions in the possession of such suspects beyond what they might require for personal defense were to be confiscated. [86]

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. [87] 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." [88] 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. [89] 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. [90] In future they were commanded to report every Saturday night to the ordnance office the number of guns made and sold that week. [91] Carriers throughout the kingdom were required to obtain a license if they wished to transport guns, and all importation of firearms was banned. [92]

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, [93] 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." [94]

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. [95] The militia and volunteers throughout the realm were ordered to carry out a general disarmament of everyone of doubtful loyalty. [96] 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." [97]

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. [98] 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." [99] 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. [100] 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 carry firearms.

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. [101] 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." [102] 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 [103] but were content to give the King what he wished as long as their own interests were protected.

III. Parliament's Campaign to Regulate Arms

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. [104] 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. [105] The King was dependent upon them to carry out his policies and shore up his regime. [106] 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. [107] 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 weapons. [108]

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. [109] 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. [110] However, since guns were acknowledged to have legitimate purposes, they were confiscated only if used illegally. [111]

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. [112] 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!" [113] 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." [114] 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 found. [115]

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. [116] 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. [117] 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. [118] 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 [119] 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. [120] 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." [121]

IV. The English Bill of Rights and the Present Controversy

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. [122] 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 [123] 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." [124] 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. [125] 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." [126] Legislative reform was meant to follow when time allowed.

Weatherup is somewhat nearer the mark in his assertion that a collective right was intended. [127] 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 [128] 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. [129]

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. [130]

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. [131]

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." [132] 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. [133] 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." [134] 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. [135] 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, [136] 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, [137] and, in 1692, "An Act for the more easie Discovery and Conviction of such as shall Destroy the Game of this Kingdom." [138] A militia act was also approved by the House of Commons in July 1689, but failed to pass the House of Lords. [139] 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." [140] 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. [141] 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," [142] the new act prohibited such persons from keeping and using "any bows, greyhounds . . . or any other instruments for destruction of . . . game." [143] 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. [144] 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 statute.

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." [145] 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. [146] 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. [147] 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, [148] 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, [149] 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." [150] 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, [151] 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 [152] 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. [153] 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." [154]

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." [155] The justices reasoned:

[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. [156]

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." [157]

In Wingfield v. Stratford & Osman, [158] 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, [159] 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. [160]

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. [161] 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." [162] 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." [163] 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." [164] 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. [165]

V. Conclusion

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 not inseparably.

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. [166] This continued to be the practice when the young republic passed its first uniform militia act under its new constitution in 1792. [167] 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.

[*] Visiting Scholar, Harvard Law School; B.A., 1963, Barnard College; Ph.D., 1977, Brandeis University.

[**] This 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.

[1] 1 T. Macaulay, Critical and Historical Essays, Contributed to the Edinburgh Review 154, 162 (Leipzig 1850).

[2] See 1 W. Blackstone, Commentaries *139-40 (1st ed. Oxford 1765).

[3] 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 ed. 1910).

[4] J. De Lolme, The Constitution of England 227 (New York 1793).

[5] See, 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. 961 (1975).

[6] Miller, Sec. III The Legal Basis for Firearms Controls, in Report to the American Bar Association 22 (1975).

[7] See, 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).

[8] See Miller, supra note 6, at 25-28.

[9] See Caplan, supra note 7, at 54-55.

[10] See, e.g., Levin, supra note 5, at 154, 159; Weatherup, supra note 5, at 973-74.

[11] G. Newton & F. Zimring, supra note 5, at 255.

[12] L. Kennet & J. Anderson, supra note 5, at 25-27.

[13] For 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.

[14] 1 J. Paterson, Commentaries on the Liberty of the Subject and the Laws of England Relating to the Security of the Person 442 (London 1877).

[15] C. Greenwood, Firearms Control: A Study of Armed Crime and Firearms Control in England and Wales 10 (1972).

[16] Caplan, supra note 7, at 54.

[17] Whisker, supra note 7, at 176.

[18] Weatherup, 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).

[19] 10 H.C. Jour., 1688-93, 21-22; 1 W. & M., Sess. 2, ch. 2 (1689).

[20] Weatherup, supra note 5, at 974.

[21] See, 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.

[22] 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).

[23] See T. Barnes, The English Legal System: Carryover to the Colonies 16 (1975).

[24] See, 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).

[25] See, 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).

[26] B. Bailyn, The Ideological Origins of the American Revolution 43 (1967).

[27] See, 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).

[28] Earlier 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).

[29] See 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. Cambridge 1908).

[30] See Assizes of Arms, Hen. 2 (1181); Statute of Winchester, Edw. (1285); 4 & 5 Phil. and M., ch. 3 (1557).

[31] See C. Cruickshank, Elizabeth's Army 24-25 (2d ed. 1966).

[32] 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 187-88 (1928).

[33] See C. Cruickshank, supra note 31, at 19-20; H. Hallam, The Constitutional History of England 386 (London 1870).

[34] See, 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.

[35] See L. Boynton, supra note 34, at 245-54.

[36] See R. Burn, supra note 29, at 17-20.

[37] See id.

[38] See id.

[39] See id. at 512.

[40] See id.

[41] See Statute of Winchester, Edw. (1285).

[42] See, 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 (1662).

[43] See G. Sharp, Tracts, Concerning the Antient and Only True Legal Means of National Defence, By a Free Militia 12 (London 1782).

[44] Id. at 13.

[45] 33 Hen. 8, ch. 6 (1541).

[46] Id.

[47] 2 & 3 Edw. 6, ch. 14 (1549); Statute of Northampton, 2 Edw. 3, ch. 3 (1328).

[48] W. Fisher, The Forest of Essex 214-15 (1887).

[49] See C. Cruickshank, supra note 31, at 24.

[50] This 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).

[51] See J. Jones, The Revolution of 1688 in England 77 n.2 (1972).

[52] See G. Roberts, The Social History of the People of the Southern Counties of England in Past Centuries viii-ix (London 1856).

[53] Id.

[54] 6 Commons Debates 1621, at 318 (1935).

[55] R. Ward, Animadversions of Warre, or a Militaire Magazine of the Truest Rules and Ablest Instruction For the Managing of Warre 150 (London 1639).

[56] The 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).

[57] William Cavendish, Earl of Devonshire, Correspondence as Lord Lieutenant of Derbyshire from 1660 to 1666, Additional MS. 34, 306, fol. 12, British Library, London.

[58] LeFleming MS, Historical Manuscripts Commission, 12th Report, Pt. 7, at 44 (1890).

[59] See 4 Memoirs of the Verney Family 167 (1899).

[60] See E. Thompson, Whigs and Hunters 71 (1975).

[61] Much 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 (1899-1900).

[62] See sources cited supra note 61.

[63] See, 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.

[64] See 92 Clarendon MS 143, Bodleian Library, Oxford.

[65] See J. Western, supra note 63, at 4-5.

[66] See id.

[67] See id. at 4; Privy Council Registers, P.C. 2, vol. 55, fol. 520 (Jan. 22, 1661), Public Record Office, London.

[68] E. Hyde, 2 The Life of Edward Earl of Clarendon 117 (Oxford 1827).

[69] Id.

[70] See 3 Memoirs Illustrative of the Life and Writings of John Evelyn 246 (deBeer ed. 1955).

[71] Two Treatises Addressed to the Duke of Buckingham, Lansdowne MS 805, fol. 79 British Library, London.

[72] Id.

[73] See 8 H. C. Jour. 5-6; E. Hyde, supra note 68, vol. 1 at 335.

[74] See 8 H. C. Jour. 142-43, 161, 163, 167.

[75] See id. at 167.

[76] 4 Parl. Hist. Eng., 145 (London 1808-20).

[77] See J. Kenyon, The Stuart Constitution 196 (1966); J. Malcolm, Caesar's Due: Loyalty and King Charles 1642-1646, at 17-21 (1983).

[78] 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).

[79] Historical Manuscripts Commission, 5th Report 153 (1876).

[80] See 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.

[81] See sources quoted in Malcolm, supra note 28, at 8-9.

[82] See, 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.

[83] See, 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.

[84] Additional 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).

[85] Instructions to Lords Lieutenants, Whitehall, 1660, Egerton MS 2542, supra note 80, at fol. 512.

[86] See id.

[87] "A 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.

[88] "A 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.

[89] Id.

[90] See Privy Council Registers, P.C. 2, vol. 55, fol. 71 (Dec. 1660), Public Record Office, London.

[91] See id.

[92] See Privy Council Register, P.C. 2, vol. 55, fol. 187 (Sept. 4, 1661), fol. 189 (Mar. 29, 1661), Public Record Office, London.

[93] See Burrage, The Fifth Monarchy Insurrections, 25 The English Hist. Rev. 722-47 (1910).

[94] 11 H.L. Jour. 243.

[95] See 1 J. Clarke, The Life of James the Second, King of England, etc. Collected out of Memoirs Writ of His Own Hand 390-91 (London 1816).

[96] See Additional MS. 34,222, supra note 83, at fol. 15.

[97] Id. 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.

[98] See B.M. 1851, ch. 8 (133), (134), (135), British Library, London.

[99] Id.

[100] This 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.

[101] 13 Car. 2, ch. 6 (1661); 14 Car. 2, ch. 3 (1662).

[102] Id.

[103] Sir 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).

[104] See J. Plumb, The Growth of Political Stability England, 1675-1725, at 21-22 (1967).

[105] See id. at 20-21. See also C. Hill, Reformation to Industrial Revolution 110-11 (1967).

[106] The 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.

[107] See 13 & 14 Car. 2, ch. 3 (1662-63).

[108] See 22 & 23 Car. 2, ch. 25 (1671).

[109] The 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 505 (1924).

[110] See 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).

[111] See sources cited supra note 110.

[112] The 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).

[113] 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).

[114] 22 & 23 Car. 2, ch. 25 (1671).

[115] Id.

[116] >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).

[117] Persons 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.

[118] See J. Western, supra note 63, at 48-51; Calendar of State Papers Domestic, 1686-87, at 314 (1964).

[119] James 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 120.

[120] 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 Convention Parliament).

[121] 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.

[122] See Weatherup, supra note 5.

[123] See id. at 962-64.

[124] Id. at 973-74.

[125] Anonymous 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.

[126] See G. Burnet, 2 Bishop Burnet's History of His Own Time 534 (London 1840).

[127] See Weatherup, supra note 5, at 974.

[128] The 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 (1969).

[129] Rawlinson MS D1079, supra note 125, at fol. 8.

[130] 10 H.C. Jour., 1688-93, at 21-22.

[131] 1 W. & M., Sess. 2, ch. 2 (1689).

[132] J. Western, Monarchy and Revolution: The English State in the 1680's, 339 (1972).

[133] For 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.

[134] G. Newton & F. Zimring, supra note 5, at 255 (quoting from 2 J. Story, Commentaries on the Constitution 678 (3d ed. 1858)).

[135] These 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).

[136] See supra notes 125-26 and accompanying text.

[137] 1 W. & M., ch. 15 (1689).

[138] 4 & 5 W. & M., ch. 23 (1692).

[139] In 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.

[140] 1 W. & M. ch. 15 (1689).

[141] 4 & 5 W. & M., ch. 23 (1692).

[142] 22 Car. 2, ch. 25 (1671).

[143] 4 & 5 W. & M., supra note 141.

[144] H. Rolle, Reports 91 (London 1675).

[145] 10 H.C. Jour. 824.

[146] A 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.

[147] 10 H.C. Jour. 824.

[148] See 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).

[149] 5 Ann, ch. 14 (1706).

[150] J. Chitty, supra note 109, at 83 & note c.

[151] Rex v. Gardner, Strange, 2 Reports 1098, 93 Eng. Rep. 1056 (K.B. 1739); 1 R. Burn, supra note 29, at 442-43.

[152] See supra text accompanying note 114.

[153] Rex v. Gardner, 93 Eng. Rep. at 1056.

[154] Id.

[155] Id.

[156] Id.

[157] 1 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.

[158] Wingfield v. Stratford & Osman, Sayer, Reports 15-17, 96 Eng. Rep. 787 (K.B. 1752).

[159] Id. at 16, 96 Eng. Rep. at 787.

[160] Id. (Lee, C.J., concurring).

[161] For 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.

[162] G. Sharp, supra note 43, at 18, 27.

[163] Id. at 18.

[164] 2 W. Blackstone, Commentaries 411 (E. Christian ed. 1793-95).

[165] W. Blizard, Desultory Reflections on Police 59-60 (London 1785) (emphasis in original).

[166] See supra notes 24-25 and accompanying text.

[167] That 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.

1983 Hastings Constitutional Law Quarterly, Vol. 10:285-314.

(www.uchastings.edu/pubs/subs.html)

 

Exhibit D

"Gun Control's Twisted Outcome."

Restricting firearms has helped make England more crime-ridden than the U.S.

Joyce Lee Malcolm | November 2002

On a June evening two years ago, Dan Rather made many stiff British upper lips quiver by reporting that England had a crime problem and that, apart from murder, "theirs is worse than ours." The response was swift and sharp. "Have a Nice Daydream," The Mirror, a London daily, shot back, reporting: "Britain reacted with fury and disbelief last night to claims by American newsmen that crime and violence are worse here than in the US." But sandwiched between the article's battery of official denials -- "totally misleading," "a huge over-simplification," "astounding and outrageous" -- and a compilation of lurid crimes from "the wild west culture on the other side of the Atlantic where every other car is carrying a gun," The Mirror conceded that the CBS anchorman was correct. Except for murder and rape, it admitted, "Britain has overtaken the US for all major crimes."

In the two years since Dan Rather was so roundly rebuked, violence in England has gotten markedly worse. Over the course of a few days in the summer of 2001, gun-toting men burst into an English court and freed two defendants; a shooting outside a London nightclub left five women and three men wounded; and two men were machine-gunned to death in a residential neighborhood of north London. And on New Year's Day this year a 19-year-old girl walking on a main street in east London was shot in the head by a thief who wanted her mobile phone. London police are now looking to New York City police for advice.

None of this was supposed to happen in the country whose stringent gun laws and 1997 ban on handguns have been hailed as the "gold standard" of gun control. For the better part of a century, British governments have pursued a strategy for domestic safety that a 1992 Economist article characterized as requiring "a restraint on personal liberty that seems, in most civilised countries, essential to the happiness of others," a policy the magazine found at odds with "America's Vigilante Values." The safety of English people has been staked on the thesis that fewer private guns means less crime. The government believes that any weapons in the hands of men and women, however law-abiding, pose a danger, and that disarming them lessens the chance that criminals will get or use weapons.

The results -- the toughest firearm restrictions of any democracy -- are credited by the world's gun control advocates with producing a low rate of violent crime. U.S. Supreme Court Justice Lewis Powell reflected this conventional wisdom when, in a 1988 speech to the American Bar Association, he attributed England's low rates of violent crime to the fact that "private ownership of guns is strictly controlled."

In reality, the English approach has not re-duced violent crime. Instead it has left law-abiding citizens at the mercy of criminals who are confident that their victims have neither the means nor the legal right to resist them. Imitating this model would be a public safety disaster for the United States.

The illusion that the English government had protected its citizens by disarming them seemed credible because few realized the country had an astonishingly low level of armed crime even before guns were restricted. A government study for the years 1890-92, for example, found only three handgun homicides, an average of one a year, in a population of 30 million. In 1904 there were only four armed robberies in London, then the largest city in the world. A hundred years and many gun laws later, the BBC reported that England's firearms restrictions "seem to have had little impact in the criminal underworld." Guns are virtually outlawed, and, as the old slogan predicted, only outlaws have guns. Worse, they are increasingly ready to use them.

Nearly five centuries of growing civility ended in 1954. Violent crime has been climbing ever since. Last December, London's Evening Standard reported that armed crime, with banned handguns the weapon of choice, was "rocketing." In the two years following the 1997 handgun ban, the use of handguns in crime rose by 40 percent, and the upward trend has continued. From April to November 2001, the number of people robbed at gunpoint in London rose 53 percent.

Gun crime is just part of an increasingly lawless environment. From 1991 to 1995, crimes against the person in England's inner cities increased 91 percent. And in the four years from 1997 to 2001, the rate of violent crime more than doubled. Your chances of being mugged in London are now six times greater than in New York. England's rates of assault, robbery, and burglary are far higher than America's, and 53 percent of English burglaries occur while occupants are at home, compared with 13 percent in the U.S., where burglars admit to fearing armed homeowners more than the police. In a United Nations study of crime in 18 developed nations published in July, England and Wales led the Western world's crime league, with nearly 55 crimes per 100 people.

This sea change in English crime followed a sea change in government policies. Gun regulations have been part of a more general disarmament based on the proposition that people don't need to protect themselves because society will protect them. It also will protect their neighbors: Police advise those who witness a crime to "walk on by" and let the professionals handle it.

This is a reversal of centuries of common law that not only permitted but expected individuals to defend themselves, their families, and their neighbors when other help was not available. It was a legal tradition passed on to Americans. Personal security was ranked first among an individual's rights by William Blackstone, the great 18th-century exponent of the common law. It was a right, he argued, that no government could take away, since no government could protect the individual in his moment of need. A century later Blackstone's illustrious successor, A.V. Dicey, cautioned, "discourage self-help and loyal subjects become the slaves of ruffians."

But modern English governments have put public order ahead of the individual's right to personal safety. First the government clamped down on private possession of guns; then it forbade people to carry any article that might be used for self-defense; finally, the vigor of that self-defense was to be judged by what, in hindsight, seemed "reasonable in the circumstances."

The 1920 Firearms Act was the first serious British restriction on guns. Although crime was low in England in 1920, the government feared massive labor disruption and a Bolshevik revolution. In the circumstances, permitting the people to remain armed must have seemed an unnecessary risk. And so the new policy of disarming the public began. The Firearms Act required a would-be gun owner to obtain a certificate from the local chief of police, who was charged with determining whether the applicant had a good reason for possessing a weapon and was fit to do so. All very sensible. Parliament was assured that the intention was to keep weapons out of the hands of criminals and other dangerous persons. Yet from the start the law's enforcement was far more restrictive, and Home Office instructions to police -- classified until 1989 -- periodically narrowed the criteria.

At first police were instructed that it would be a good reason to have a revolver if a person "lives in a solitary house, where protection against thieves and burglars is essential, or has been exposed to definite threats to life on account of his performance of some public duty." By 1937 police were to discourage applications to possess firearms for house or personal protection. In 1964 they were told "it should hardly ever be necessary to anyone to possess a firearm for the protection of his house or person" and that "this principle should hold good even in the case of banks and firms who desire to protect valuables or large quantities of money."

In 1969 police were informed "it should never be necessary for anyone to possess a firearm for the protection of his house or person." These changes were made without public knowledge or debate. Their enforcement has consumed hundreds of thousands of police hours. Finally, in 1997 handguns were banned. Proposed exemptions for handicapped shooters and the British Olympic team were rejected.

Even more sweeping was the 1953 Prevention of Crime Act, which made it illegal to carry in a public place any article "made, adapted, or intended" for an offensive purpose "without lawful authority or excuse." Carrying something to protect yourself was branded antisocial. Any item carried for possible defense automatically became an offensive weapon. Police were given extensive power to stop and search everyone. Individuals found with offensive items were guilty until proven innocent.

During the debate over the Prevention of Crime Act in the House of Commons, a member from Northern Ireland told his colleagues of a woman employed by Parliament who had to cross a lonely heath on her route home and had armed herself with a knitting needle. A month earlier, she had driven off a youth who tried to snatch her handbag by jabbing him "on a tender part of his body." Was it to be an offense to carry a knitting needle? The attorney general assured the M.P. that the woman might be found to have a reasonable excuse but added that the public should be discouraged "from going about with offensive weapons in their pockets; it is the duty of society to protect them."

Another M.P. pointed out that while "society ought to undertake the defense of its members, nevertheless one has to remember that there are many places where society cannot get, or cannot get there in time. On those occasions a man has to defend himself and those whom he is escorting. It is not very much consolation that society will come forward a great deal later, pick up the bits, and punish the violent offender."

In the House of Lords, Lord Saltoun argued: "The object of a weapon was to assist weakness to cope with strength and it is this ability that the bill was framed to destroy. I do not think any government has the right, though they may very well have the power, to deprive people for whom they are responsible of the right to defend themselves." But he added: "Unless there is not only a right but also a fundamental willingness amongst the people to defend themselves, no police force, however large, can do it."

That willingness was further undermined by a broad revision of criminal law in 1967 that altered the legal standard for self-defense. Now everything turns on what seems to be "reasonable" force against an assailant, considered after the fact. As Glanville Williams notes in his Textbook of Criminal Law, that requirement is "now stated in such mitigated terms as to cast doubt on whether it [self-defense] still forms part of the law."

The original common law standard was similar to what still prevails in the U.S. Americans are free to carry articles for their protection, and in 33 states law-abiding citizens may carry concealed guns. Americans may defend themselves with deadly force if they believe that an attacker is about to kill or seriously injure them, or to prevent a violent crime. Our courts are mindful that, as Justice Oliver Wendell Holmes observed, "detached reflection cannot be demanded in the presence of an upraised knife."

But English courts have interpreted the 1953 act strictly and zealously. Among articles found illegally carried with offensive intentions are a sandbag, a pickaxe handle, a stone, and a drum of pepper. "Any article is capable of being an offensive weapon," concede the authors of Smith and Hogan Criminal Law, a popular legal text, although they add that if the article is unlikely to cause an injury the onus of proving intent to do so would be "very heavy."

The 1967 act has not been helpful to those obliged to defend themselves either. Granville Williams points out: "For some reason that is not clear, the courts occasionally seem to regard the scandal of the killing of a robber as of greater moment than the safety of the robber's victim in respect of his person and property."

A sampling of cases illustrates the impact of these measures:

In 1973 a young man running on a road at night was stopped by the police and found to be carrying a length of steel, a cycle chain, and a metal clock weight. He explained that a gang of youths had been after him. At his hearing it was found he had been threatened and had previously notified the police. The justices agreed he had a valid reason to carry the weapons. Indeed, 16 days later he was attacked and beaten so badly he was hospitalized. But the prosecutor appealed the ruling, and the appellate judges insisted that carrying a weapon must be related to an imminent and immediate threat. They sent the case back to the lower court with directions to convict.

In 1987 two men assaulted Eric Butler, a 56-year-old British Petroleum executive, in a London subway car, trying to strangle him and smashing his head against the door. No one came to his aid. He later testified, "My air supply was being cut off, my eyes became blurred, and I feared for my life." In desperation he unsheathed an ornamental sword blade in his walking stick and slashed at one of his attackers, stabbing the man in the stomach. The assailants were charged with wounding. Butler was tried and convicted of carrying an offensive weapon.

In 1994 an English homeowner, armed with a toy gun, managed to detain two burglars who had broken into his house while he called the police. When the officers arrived, they arrested the homeowner for using an imitation gun to threaten or intimidate. In a similar incident the following year, when an elderly woman fired a toy cap pistol to drive off a group of youths who were threatening her, she was arrested for putting someone in fear. Now the police are pressing Parliament to make imitation guns illegal.

In 1999 Tony Martin, a 55-year-old Norfolk farmer living alone in a shabby farmhouse, awakened to the sound of breaking glass as two burglars, both with long criminal records, burst into his home. He had been robbed six times before, and his village, like 70 percent of rural English communities, had no police presence. He sneaked downstairs with a shotgun and shot at the intruders. Martin received life in prison for killing one burglar, 10 years for wounding the second, and a year for having an unregistered shotgun. The wounded burglar, having served 18 months of a three-year sentence, is now free and has been granted 5,000 of legal assistance to sue Martin.

The failure of English policy to produce a safer society is clear, but what of British jibes about "America's vigilante values" and our much higher murder rate?

Historically, America has had a high homicide rate and England a low one. In a comparison of New York and London over a 200-year period, during most of which both populations had unrestricted access to firearms, historian Eric Monkkonen found New York's homicide rate consistently about five times London's. Monkkonen pointed out that even without guns, "the United States would still be out of step, just as it has been for two hundred years."

Legal historian Richard Maxwell Brown has argued that Americans have more homicides because English law insists an individual should retreat when attacked, whereas Americans believe they have the right to stand their ground and kill in self-defense. Americans do have more latitude to protect themselves, in keeping with traditional common law standards, but that would have had less significance before England's more restrictive policy was established in 1967.

The murder rates of the U.S. and U.K. are also affected by differences in the way each counts homicides. The FBI asks police to list every homicide as murder, even if the case isn't subsequently prosecuted or proceeds on a lesser charge, making the U.S. numbers as high as possible. By contrast, the English police "massage down" the homicide statistics, tracking each case through the courts and removing it if it is reduced to a lesser charge or determined to be an accident or self-defense, making the English numbers as low as possible.

The London-based Office of Health Economics, after a careful international study, found that while "one reason often given for the high numbers of murders and manslaughters in the United States is the easy availability of firearms...the strong correlation with racial and socio-economic variables suggests that the underlying determinants of the homicide rate are related to particular cultural factors."

Cultural differences and more-permissive legal standards notwithstanding, the English rate of violent crime has been soaring since 1991. Over the same period, America's has been falling dramatically. In 1999 The Boston Globe reported that the American murder rate, which had fluctuated by about 20 percent between 1974 and 1991, was "in startling free-fall." We have had nine consecutive years of sharply declining violent crime. As a result the English and American murder rates are converging. In 1981 the American rate was 8.7 times the English rate, in 1995 it was 5.7 times the English rate, and the latest study puts it at 3.5 times.

Preliminary figures for the U.S. this year show an increase, although of less than 1 percent, in the overall number of violent crimes, with homicide increases in certain cities, which criminologists attribute to gang violence, the poor economy, and the release from prison of many offenders. Yet Americans still enjoy a substantially lower rate of violent crime than England, without the "restraint on personal liberty" English governments have seen as necessary. Rather than permit individuals more scope to defend themselves, Prime Minister Tony Blair's government plans to combat crime by extending those "restraints on personal liberty": removing the prohibition against double jeopardy so people can be tried twice for the same crime, making hearsay evidence admissible in court, and letting jurors know of a suspect's previous crimes.

This is a cautionary tale. America's founders, like their English forebears, regarded personal security as first of the three primary rights of mankind. That was the main reason for including a right for individuals to be armed in the U.S. Constitution. Not everyone needs to avail himself or herself of that right. It is a dangerous right. But leaving personal protection to the police is also dangerous.

The English government has effectively abolished the right of Englishmen, confirmed in their 1689 Bill of Rights, to "have arms for their defence," insisting upon a monopoly of force it can succeed in imposing only on law-abiding citizens. It has come perilously close to depriving its people of the ability to protect themselves at all, and the result is a more, not less, dangerous society. Despite the English tendency to decry America's "vigilante values," English policy makers would do well to consider a return to these crucial common law values, which stood them so well in the past.

 

Exhibit E

"Where I come from, our homes are still our castles"

Joyce Lee Malcolm

(Filed: 31/10/2004)

The Telegraph (London)

If someone breaks into your home in the middle of the night you can presume he is not there to read the gas meter. But current British law insists that he have the freedom of the premises. When, last Christmas, thousands of Radio 4's Today listeners called for legislation authorising them to protect their homes by any means necessary, the proposal was immediately denounced as a "ludicrous, brutal, unworkable, blood-stained piece of legislation". Until recently that "unworkable, blood-stained" legislation was the law of the land. There was no need to retreat from your home, or from any room within it. An Englishman's home was his refuge, and, indeed, his castle.

But no more. Rather than permitting people to protect themselves, the authorities' response to the recent series of brutal attacks on home-owners has been to advise people to get more locks and, in case of a break-in, retreat to a secure room - presumably the bathroom - to call the police. They are not to keep any weapon for protection or approach the intruder. Someone might get hurt. If that someone is the intruder the resident will be sued by the burglar and vigorously prosecuted by the state. I heartily applaud The Sunday Telegraph's campaign to end this lamentable state of affairs.

Happily for us Americans, English common law prevails in the US; our homes are still our castles. Californians, for example, are entitled to use force to protect themselves and their property. Legislation in Oklahoma which allowed the home-owner to use force no matter how slight the threat has reduced burglary by nearly half since it was passed 15 years ago. What British police condemn as "vigilante" behaviour has produced an American burglary rate less than half the English rate. And, while 53 per cent of English burglaries occur when someone is at home, only 13 per cent do in America, where burglars admit to fearing armed home-owners more than the police. Violent crime in the US is at a 30-year low.

Whatever became of the Englishman's castle? He did not lose the right and means to protect himself at once. It was teased away over the course of some 80 years by governments claiming to be fighting crime, but actually fearful of revolution and disorder. When the policy began, crime was rare. For almost 500 years, until 1954, England and Wales enjoyed a declining rate of violent crime. In the last years of the 19th century, when there were no restrictions on guns, there was just one handgun homicide a year in a population of 30 million people. In 1904 there were only four armed robberies in London, then the largest city in the world.

The practical removal of the right to self defence began with Britain's 1920 Firearms Act, the first serious limitation on privately-owned firearms. It was motivated by fear of a Bolshevik-type revolution rather than concerns about householders defending themselves against robbers. Anyone wanting to keep a firearm had to get a certificate from his local police chief certifying that he was a suitable person to own a weapon and had a good reason to have it. The definition of "good reason", left to the police, was gradually narrowed until, in 1969, the Home Office decided "it should never be necessary for anyone to possess a firearm for the protection of his house or person". Since these guidelines were classified until 1989, there was no opportunity for public debate.

Self defence within the home was also progressively legislated against. The 1953 Prevention of Crime Act made it illegal to carry in a public place any article "made, adapted or intended" for an offensive purpose "without lawful authority or reasonable excuse". Any item carried for defence was, by definition, an "offensive" weapon. Police were given broad power to stop and search anyone. Individuals found with offensive weapons were guilty until proven innocent. The scope is so broad that a standard legal textbook explains that "any article is capable of being an offensive weapon". The public were told that society would protect them and their neighbours. If they saw someone being attacked they were to walk on by, and leave it to the professionals.

Finally, in 1967, tucked into an omnibus revision of criminal law, approved without discussion, was a section that altered the traditional standards for self-defence. Everything was to depend on what seemed "reasonable" force after the fact. It was never deemed reasonable to defend property with force. According to the Textbook of Criminal Law the requirement that an individual's efforts to defend himself be "reasonable" is "now stated in such mitigated terms as to cast doubt on whether it still forms part of the law". Another legal scholar found it "unthinkable" that "Parliament should inadvertently have swept aside the ancient privilege of self defence. Had such a move been debated it is unlikely that members would have sanctioned it." She was confident that Parliament would quickly set things right: "In view of the inadequacy of existing law there is some urgency here." That plea was written 30 years ago, and the situation is infinitely more urgent now.

At the same time as government demanded sole responsibility for protecting individuals, it adopted a more lenient approach toward offenders. Sentences were sharply reduced, few offenders served more than a third or a half of their term, and fewer offenders were incarcerated. Further, they were to be protected from their victims. Tony Martin, the Norfolk farmer jailed for killing one burglar and wounding another, was denied parole because he posed a danger to other burglars. "It cannot possibly be suggested," the government lawyers argued, "that members of the public cease to be so whilst committing criminal offences" adding, "society can not possibly condone their (unlawful) murder or injury".

Meanwhile, much of rural Britain is without a police presence. And the statutes meant to protect the people have been vigorously enforced against them. Among the articles people have been convicted of carrying for self defence are a sandbag, a pickaxe handle, a stone, and a drum of pepper.

This trade-off of rights for security has been disastrous for both. Crime has rocketed. A UN study in 2002 of 18 developed countries placed England and Wales at the top of the Western world's crime league. Five years after the sweeping 1998 ban on handguns, handgun crime had doubled. As was forecast at the time, the effect of outlawing handguns has been that only outlaws have handguns.

In recent years governments have even felt it necessary to prevent the public from defending themselves with imitation weapons. In 1994 an English home-owner, armed with a toy gun, managed to detain two burglars who had broken into his house while he called the police. When the officers arrived, they arrested the home-owner for using an imitation gun to threaten or intimidate. In a similar incident the following year, when an elderly woman fired a toy cap pistol to drive off a group of youths who were threatening her, she was arrested for putting someone in fear. Now the police are pressing Parliament to make imitation guns illegal.

The impact on law-abiding citizens has been stark. With no way to protect themselves, millions of Britons live in fear. Elderly people are afraid to go out and afraid to stay in. Self defence, wrote William Blackstone, the 18th-century jurist, is a "natural right that no government can deprive people of, since no government can protect the individual in his moment of need". This Government insists upon having a monopoly on the use of force, but can only impose it upon law-abiding people. By practically eliminating self defence, it has removed the greatest deterrent to crime: a people able to defend themselves.

Joyce Lee Malcolm is Professor of History at Bentley College, Massachusetts, and Senior Advisor, MIT Security Studies Program.

Her book, Guns and Violence - the English Experience, is published by Harvard University Press.

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