The Volokh Conspiracy
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A few weeks ago, I joined several legal historians in filing an amicus brief about the Second Amendment right to carry arms; the case is Wrenn v. District of Columbia, currently before the D.C. Circuit. The brief addressed English legal history, and also American legal history through the 19th century. Stanford history professor Priya Satia has written an article in Slate, asserting that our description of English legal history is incorrect-that it is "incongruous" with "well-established history." So let's take a look at what the history really says.
In 1328, the government in England was near collapse. The previous year, King Edward II was had been deposed by an invasion led by his wife, Queen Isabella (a French Princess). Isabella and her consort Roger Mortimer took over the government. The monarchy's ability to enforce the law was close to non-existent. As historian Anthony Verduyn explains, the primary concern was "the gentry…using armed force to defeat the course of justice." For decades there had been a problem of "magnates maintaining criminals." (The Politics of Law and Order during the Early Years of Edward III, 108 Eng. Hist. Rev. 842 (1993).) As numerous royal instructions to Sheriffs of the era indicate, these armed gangs prevented the monarch's courts from functioning in many places, and attacked jurors who were traveling to perform jury service.
Besides that, as Verduyn writes, Isabella and Mortimer were fearful of being overthrown; with Parliament composed exclusively of aristocrats, Isabella and Mortimer did not want armed men coming to Parliament, nor traveling armed to meet the Queen. They favored a measure to "politically necessary to check dissent against the increasingly unpopular regime." So in 1328, the Statute of Northampton was enacted. It provided:
Item, it is enacted, that no man great nor small, of what condition soever he be, except the king's servants in his presence, and his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King's justices, or other of the King's ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night or by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure.
As the text of the Statute indicates, the first concern was the thwarting of government functions. The penalty of forfeiture of "armour" indicates a statute aimed primarily at the aristocracy; commoners could not afford a coat of chain mail.
Yet the statute could be read broadly. The "in no part elsewhere" could be interpreted as a comprehensive ban on carrying by anyone except for "the king's ministers" and except for people in hot pursuit of fleeing criminals (the hue and cry). It seems impossible that the Statute could ever have been enforced with the literal rigor that Prof. Satia imagines. Separate from the duty to join a hue and cry (which presumably would not be an everyday event), there was the ordinary duty of persons in towns and villages to keep "watch and ward"-this is to serve in daytime and night-time patrols to confront and question any unfamiliar person who attempted to enter. On top of that, the Tudor monarchs of the 16th century mandated that all towns and villages maintain public target ranges. Parents were required to teach their children how to use arms, and various Sunday amusements were outlawed, in order to remove distractions from target practice. The target mandates at first were for long bows, and later for muskets.
Also, there was the very common practice of people carrying knives, as a necessary tool for everyday use in cutting food and other tasks-and necessarily available for self-defense in an emergency.
So we know that the Statute of Northampton was not interpreted literally. A literal reading would forbid what the law required: watch and ward, Flutrand arms training.
What did the law actually forbid? The only case on the subject seems to be Sir John Knight's Case, from 1686. It was charged that Knight and three friends "did walk about the streets armed with guns, and that he went into church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects." In the prosecution's theory of the case, Knight's intent was "to terrify."
The Chief Justice of the King's Bench agreed with that legal standard. The Chief Justice observed that the law was nearly obsolete from disuse: "this statute be almost gone in desuetudinem." In 1686, "now there be a general connivance to gentlemen to ride armed for their security." Yet even though the Statute of Northampton was hardly ever enforced, "where the crime shall appear to be malo animo it will come within the act." (Malo animo= with bad intent.)
Thus, carrying arms was lawful if done with good intent, and unlawful if done with bad intent. This standard was reflected in an influential book a few years later, which linked the rights of ancient Britons and modern Englishmen. (James Tyrrell, Bibliotheca Politica 639 (London, W. Rawlins, S. Roycroft & H. Sawbridge 1694) (Statute of Northampton allows persons to carry arms "in their own defence against Illegal Violence.").
The major criminal law treatise of the 18th century and for several decades of the 19th century was William Hawkins "Pleas of the Crown" (1716). It said that the Statute of Northampton applied "where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People."
So we have the standard that peaceable carry is lawful, and terrifying carry is unlawful. That is the standard which is advocated by the amicus brief which I joined, and which Professor Satia criticizes. She writes that:
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.
This is not an accurate description of our brief. First, we never claimed that the Statute of Northampton was "inconsistently applied." Rather, we argued that the Statute "was interpreted" so as to apply only to carrying "in such a manner as would cause fear or terror in the populace."
Second, our legal argument, as discussed above, was based on the case reports of the Chief Justice's explication of the law, and on subsequent law books which restated the rule. The fact that the jury acquitted Knight was simply because the jury did not think that Knight had done what the prosecutor alleged: carrying arms "to terrify the King's subjects." A diary written by a contemporary, and published in 1857, recounted that when Knight was "tried by a jury of his own city, that knew him well, he was acquitted, not thinking he did it with any ill design." (Narcissus Luttrell, "A Brief Historical Relation of State Affairs from September 1678 to April 1714", vol. 1, p. 380 (1857).)
Third, Mr. Charles accuses Professor Malcolm of fabrication "out of thin" air because Mr. Charles has an alternative theory of why Knight was acquitted: because Knight was "cloaked with government authority." Mr. Charles' argument about this is detailed in his 2009 article in the Cleveland State Law Review.
The argument that Knight was "cloaked with government authority" seems dubious, based on the reports of the case. Although the jury acquitted Knight, the Attorney General moved that Knight be required to post bond for good behavior. The Chief Justice of the King's Bench agreed. Rex v. Sir John Knight, 90 Eng. Rep. 331, Comberbach, 41 (1686). This does not seem like the treatment of someone who was "cloaked with government authority."
Mr. Charles also argues that Knight's lawyer had argued that Knight was protected by "Richard II's statute exempting governmental officials from punishment" for violating the Statute of Northampton. Knight's attorney made no such argument.
The case report is terse about what Knight's lawyer said: "Winnington, pro defendente. This statute was made to prevent the people's being oppressed by great men; but this is a private matter, and not within the statute. Vide stat. 20 R. 2."
Straightforwardly, this is an argument about the primary purpose of the Statute of Northampton: to stop "great men" (nobles) from interfering in the public administration of justice. Rather than being a matter of public concern, Knight's actions were "a private matter." So argued his attorney. This seems like the opposite of claiming to be like "governmental officials."
Mr. Charles appears to have led himself astray by the statute which Knight's lawyer cited, from the 20th year of the reign of King Richard II (1396-97). Mr. Charles thinks that this statute created a government official exemption, and that is why Knight's lawyer cited the statute. Actually, the "government officials" exemption was in the original 1328 Statute of Northampton. In the 1328 original, an exemption for the king's "ministers in executing of the king's precepts, or of their office." Likewise from Richard II: "the King's Officers and Ministers in doing their Office."
King Richard II, like his great-great-grandmother Queen Isabella, had good reason to fear overthrow by the nobility. They deposed him in 1399, and killed him soon after. So it was rational for the tottering King Richard II to again mandate enforcement of the Statute of Northampton; armed nobles were as great a threat to him as they had been to Queen Isabella and Roger Mortimer.
Why did Sir John Knight's lawyer cite Richard II's statute? It supported the argument that that Statute of Northampton was about "great men," not "a private matter." The only innovation in Richard II's restatement of the Statute of Northampton was that it banned not only carrying, but also possession, of "launcegays." The launcegay was a type of spear that was an "offensive weapon." (Thomas Edlyne Tomlin, "The Law-Dictionary: Explaining the Rise, Progress and Present State Of the British Law" (London 1820).) That is why "launcegays were forbidden in the troublous times of King Richard II." Chamber's Journal, vol. 8, p. 38 (1858).) In contrast, Knight had carried a common blunderbuss (a primitive type of firearm, not accurate beyond close range).
Professor Satia charged that the legal arguments my colleagues and I raised in the amicus brief were made "out of thin air." I hope that the explication above shows that our arguments were based on legal authority. In some subsequent posts , I will discuss other arguments that Prof. Satia raises, regarding latter periods in English history. Soon, I will post my forthcoming article in the Georgetown Journal of Law & Public Policy, which addresses English law and early American law.