The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One reason the First and Second Amendments are good constitutional neighbors is that they both protect religious liberty. James Madison intended for the Second Amendment to prohibit the types of arms restrictions which the British government had sometimes imposed on Catholics.
The English Declaration of Rights, enacted by Parliament in 1689, had stated: "The subjects which are protestants may have arms for their defence suitable to their conditions as and allowed by law." The previous year, the Catholic King James II, had been overthrown in the Glorious Revolution. He had been working to disarm the populace and suppress political opposition. Many feared that his objective was replacing England's system of limited monarchy with French-style absolute monarchy and eventually re-establishing Catholicism as the official religion.
Although Catholics were a small minority in England, there were concerns that in case of foreign invasion by a Catholic nation, they would ally with their co-religionists. Thus, in 1613 King James I had ordered the disarmament of all Catholics. Similarly, Michael Dalton's widely read 1622 manual for Justices of the Peace, "The Countrey Justice," explained that Justices could seize the arms of convicted "popish Recusants." In English law, a "recusant" was a Catholic who refused to attend the services of the Church of England. Because the arms guarantee in the English Declaration of Rights did not apply to Catholics, Parliament was free in 1695 to pass "An Act for the better securing the government, by disarming papists." The statute was aimed especially at Catholics in Ireland, who had a long history of fighting England's efforts to rule them without their consent. Although Catholics had no right to arms, they could possess or carry a firearm if they were granted a license.
In the American colonies, however, there do not appear to have been arms restrictions aimed at Catholics, except for one episode in Maryland in the early 18th century, during Queen Anne's War. James Madison aimed to make sure that religious restrictions on the right to arms could never be allowed in the United States. Madison's notes for his speech in Congress introducing the Bill of Rights explained that the proposals were to deal with the "omission of guards in favr. of rights & libertys." His amendments "relate 1st. to private rights." A Bill of Rights was "useful-not essential." There was a "fallacy on both sides-especy as to English Decln. of Rts." First, the Declaration was a "mere act of parlt." Second, the English Declaration was too narrow; it omitted certain rights and protected others too narrowly. In particular, there was "no freedom of press-Conscience." There was no prohibition on "Gl. Warrants" and no protection for "Habs. corpus." Nor was there a guarantee of "jury in Civil Causes" or a ban on "criml. attainders." Lastly, the Declaration protected only "arms to Protestts." Thus, the Second Amendment contains none of the limitations or exceptions of its English ancestor.
Some writers, such as Fordham history professor Saul Cornell and Patrick Charles, have cited the English anti-Catholic laws as providing guidance for the interpretation of the Second Amendment in the United States. This seems incorrect, since one purpose of the Second Amendment was to prevent the adoption of the gun licensing laws like those imposed on the Catholics in England and Ireland. These laws are the opposite of the Second Amendment, at least in Madison's view.
Sometimes, the anti-Catholic laws are misdescribed, as if they applied to the entire population. Consider this passage from Charles. He is criticizing Eugene Volokh's argument that the (non-Catholic) English population had the right to own and carry arms:
Lastly, Volokh's interpretation does not take into account the English licensing system. Under the common law and affirmed by subsequent statutes, the ability of persons to go armed among the public concourse was based upon government acquiescence only. A person was required to obtain the crown's license to go armed in the public concourse. The status quo remained after the adoption of the 1689 English Declaration of Rights "have arms" provision. For instance, on December 21, 1699, the following proclamation was published in The Post Boy:
"Whereas, We have received Information That several Persons not Qualified by the Laws of this Realm, to carry Arms, have nevertheless in contempt and Violation of the Law, taken on them to Ride and Go Armed, and for their so doing, have sometimes insisted on Licences formerly Granted, which have been Re-called and made Void . . . and others have wholly Falsified and Counterfeited Licences to carry Arms . . . We have for the Remedying the said Evil, thought fit to Re-call all Licences whatsoever . . . and to Require all persons whatsoever having such Licences, to bring in and Lodge the same with the Clerk of the Council . . . ."
Patrick Charles, The Faces of the Second Amendment Outside the Home: History versus Ahistorical Standards of Review, 60 Cleveland State Law Review 1, 27-28 (2012).
The Post Boy was a newspaper in Dublin. Charles's use of ellipses omits some crucial words. The arms carry licenses discussed in the article were "all Licenses whatsoever to bear Arms, formerly Granted to any Papist in this Kingdom." The Post Boy, Dec. 19-21, 1699 at 1, col. 1.
Thus, when you fill in the omitted words, The Post Boy article demonstrates exactly the opposite of Charles's claim that carry licenses were required for the general population. To the contrary, it was Catholics who were not allowed to carry arms unless they were granted a license. As explicated at great length in McDonald v. Chicago, we know that one purpose of the Fourteenth Amendment was to eliminate the race-based system of gun control that had existed in the slave states. The Americans who used the Fourteenth Amendment against race-based gun control were, in a sense, continuing the work done by Madison, in eliminating religion-based gun control.
Thus, if religion-based gun control (e.g., banning guns for Muslims) were ever enacted in the United States, such a law could be challenged not only on First Amendment grounds, but also on the grounds that the Second Amendment prohibits religious discrimination in arms rights. The English precedents of anti-Catholic gun laws are important precedents for understanding the original meaning of the Second Amendment. Rather than being examples of permissible gun controls, the anti-Catholic laws are examples of what the Second Amendment was intended to forbid.
This post is based in part on my forthcoming article in the Georgetown Journal of Law & Public Policy, "The First Century of Right to Arms Litigation."