Wrenn v. D.C. gun case turns on English laws of 1328 and 1689.

English Laws From 1328 and 1689 Could Determine Where You May Carry a Gun Today

English Laws From 1328 and 1689 Could Determine Where You May Carry a Gun Today

The law, lawyers, and the court.
Oct. 21 2015 9:34 AM

On Gun Laws, We Must Get the History Right

Understanding who carried weapons in the 17th century could determine where you may carry a gun today.

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The Battle of Culloden, the final confrontation of the Jacobite rising and part of a religious civil war in Britain, 1746.

Painting by David Morier via Wikimedia Commons

Oddly enough, medieval English laws matter in legal debates about gun control in the United States today. The Supreme Court’s landmark 2008 Second Amendment decision, District of Columbia v. Heller, determined that sufficiently “long-standing” firearms regulations are constitutional. This means that in Second Amendment cases, we have to get our English history right.

Doing so is crucial in a gun case now before the D.C. Circuit Court of Appeals: Wrenn v. D.C. The case is critical for Washington residents but also more broadly as the pro-gun lobby challenges laws in cities across the country. The District of Columbia argues that English and American law has always permitted restrictions on the right to carry guns in populated public places, tracing this tradition to the 1328 Statute of Northampton, which generally prohibited carrying guns in public. The District argues that the Second Amendment and its English precursors did not allow unfettered public carrying in densely populated cities, and thus the District may restrict it.

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A group of legal historians has disputed this interpretation in an amicus brief filed this month, followed by an essay in the Washington Post by David Kopel, adjunct professor at Denver University’s law school. They claim the English Bill of Rights of 1689 superseded the 1328 statute and that, “There was a lot of weapons-carrying in England.” Thus, they conclude, D.C. residents have the right to carry guns in public. But their English history is wrong, as are their conclusions about public carry in the nation’s capital.

The Glorious Revolution of 1688–89 established a Protestant monarchy in England under William and Mary, ending the reign of the Stuarts. The Bill of Rights codified the constitutional limits on the new monarchy, including a provision guaranteeing Protestants (but not Catholics or Jews) the right to bear arms. But political realities overrode this provision. The new monarchy remained vulnerable to “Jacobites” seeking to restore the Stuart dynasty, with French and Spanish backing. This danger meant the British state could not permit widespread gun ownership.

The new monarchy’s disarmament laws built on laws passed after the Restoration of 1660, when the Stuarts returned to power after 11 years of republican rule and were similarly concerned with political stability. A 1670 statute had limited firearms possession to the noble and rich, although even their arsenals were subject to search and seizure at sensitive moments. A series of game laws from 1671 through 1831 dramatically reduced the number of people permitted to hunt, empowering gamekeepers to search for and seize unauthorized firearms. Smuggling laws also made carrying arms grounds for arrest. An armed militia was active through the 1680s, but not the 80 years that followed. Through the 1740s, its arms were locked in royal arsenals and distributed only at assembly. The government’s success at disarming the population made the militia superfluous, since its entire purpose was to prevent an armed rising against the government.

The amicus brief by Kopel et al. paints a picture of widespread gun carrying incongruous with this well-established history. The authors invoke the 1686 acquittal of the gun-toting Sir John Knight as evidence that the 1328 statute was inconsistently applied, but Patrick J. Charles, the award-winning historian for Air Force Special Operations Command, has shown that Joyce Malcolm (one of the brief’s authors) created this finding “out of thin air.” In fact, Knight was acquitted because he was armed while cloaked with government authority. In an era of rapid urban growth, before state provision of police, the wealthy and noble fulfilled the role of informal police. After every war, the ordnance office carefully gathered in soldiers’ arms. Scotland and Ireland, as potential Jacobite strongholds, were rigorously disarmed. The much-bemoaned ignorance of fresh recruits at the start of each war confirms that firearms were not familiar objects for most Britons. Fear of uncontrolled arms possession guided debate about revival of the militia in 1757, when dynastic fears receded, making a property qualification in land central to participation in the militia. The state continued to disarm the population in moments of political crisis, such as the Gordon Riots of 1780.

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 So, despite the Bill of Rights, the British state established a policy of regulating and prohibiting arms possession among dissident elements and the lower orders of society. Only the upper class and noble social elements with which it shared power could freely possess firearms. Certainly, highwaymen and smugglers got them illegally, often from military deserters; disarming them remained an active official pursuit. But most people did not have firearms. If they had, we might have found them—rather than stones and farm implements—in the hands of common people in the frequent riots of the period. This empirical reality coexisted with the widespread belief that a society of armed free men was the best guarantee against tyranny. Many complained about disarmament, further attesting to its effectiveness.

When war against France began again in 1794, the British government was still as afraid of its own people as it was of the enemy. From 1797–98, it disarmed its people more effectively than it had disarmed Americans rebels 20 years earlier. But by 1803, William Pitt conceded that the time when it was “dangerous to entrust arms” to “the people of this country ... is now past.” Half a million Britons were armed, and, predictably, new forms of casual gun violence appeared.

But this experience was ephemeral: Postwar legislation forbade arming as the government feared unrest triggered by demobilization and high prices. Soon, formal police structures convinced property owners to surrender their autonomy in dealing with thieves, the state promising to use its monopoly of violence for their benefit. The point was to create a society in which arms were not necessary. Public safety and dynastic stability mandated that strong restrictions on gun ownership and use coexisted alongside the Bill of Rights.

By all means, let us learn from this English past: It did not include the unqualified right of an individual to carry arms in public.