Submitted by Mark Esposito, Guest Blogger

Few words have sparked as much emotion on the blog –and may have even cost it a victory lap in the ABA blog voting this year — as the Second Amendment to the U.S. Constitution.  Seems the history of the Amendment was just as jumbled and ferociously fought, or so contends Law Professor David E. Vandercoy, in his short history of the Second Amendment.

The roots of the Second Amendment stretch back to 10th Century Britain and the rule of King Alfred (the only English monarch to be given the epithet “the Great”).  Alfred, who consolidated the southern wield of England against Viking invasions by uniting the Angle and Saxon tribes into a unified force after years of in-fighting, considered all freemen of the realm as soldiers in waiting. To accomplish this rather audacious purpose, he required that each adult male subject possess weapons to comprise a ready-force to defend the crown and the kingdom.

King Henry II formalized the law by decreeing the Assize of Arms in 1181. The type of weaponry varied by wealth and station in life but the requirement was universal. Henry also expanded the reach of the law to include serfs thereby increasing the force and permitting an army suited to more offensive objectives.  Henry VIII modified the law to require fathers to purchase longbows for their sons age 14 and older and teach them to use them. All subjects of the realm age 14 to 40 were thus required to be well-versed in the art of archery. The modern military was being born with specialized weaponry and training, but the concept of citizen-soldier remained the norm.

Queen Elizabeth I, an assiduous student of her father’s military acumen, made the next logical step and issued a decree requiring citizen musters in each county and appointing knights to command them.  Thus the first militias were created with the citizen soldier as the backbone, commanded by a trained and loyal knight of the realm at its head.

Some commentators have suggested this universal armament moderated the practices of English monarchs in contrast to the continental monarchies which faced no challenge to their authority by their mostly unarmed and disorganized populations. Not until the French Revolution in 1789 would absolutist monarchies on the European mainland be confronted by their everyday citizens inspired by the examples of the English and American Revolutions.

The Tudor dynasty gave way to the tumultuous Stuarts and their direct confrontations with Parliament over the power of the monarchy. The legal titan of the era, Lord Coke, would argue that kings possessed only so much power as Parliament accorded them. The Stuarts led by James I would hold fast to the notion of the divine right of Kings to exercise absolute authority. Parliament pointed out that its powers and liberties were “the ancient and undoubted birthright and inheritance of the subjects of England ….” James I tore the page from the Journal of the Commons. Couple this with the religious schism in the kingdom and an explosion was inevitable.

It is no coincidence that Guy Fawkes’ famous “Gunpowder Plot” occurred during this period of resistance to royal usurpation of individual rights. Fawkes famous retort to his torturers upon being asked why he had so much gunpowder under his control stands as testament to the times: “… to blow you Scotch beggars back to your native mountains.”

James’ son, Charles, was no uniter of factions and he fared no better with Parliament finally resulting in 1628’s Petition of Right detailing Charles’ violation of his subjects’ rights. The die for revolution was finally cast when Charles began raising funds to establish a royal standing army.   To do so, Charles had to call Parliament into session to obtain a bill for obtaining the funds. The so-called “Long Parliament” seized the opportunity to force the King to remove Lord Strafford, the King’s most trusted advisor, who had formed a royal standing army in Ireland. When Ireland revolted, Charles moved to stop Parliament from seizing complete control of the militias by refusing to sign an Ordinance of Parliament in 1642 deeming any militia not under the control of Parliament as unlawful. Both sides called out the militias to enforce their prerogatives, and civil war ensued as the militias chose sides. By 1649, each side controlled not militias, but now  standing armies.

Charles I was executed in 1649 and Gen. Oliver Cromwell prevailed over royalist forces at the Battle of Worcester in 1651, thus ending the English Civil War but not the strife over the role of citizen-soldiers. Parliament’s army, The New Model Army, led by the Puritan Cromwell, would be drawn into conflicts with the body over back pay and religious issues. These fissures coupled with the overwhelming sentiment that the army owed loyalty to the people and not to Parliament would lead to open conflict.  When leaders at Westminster attempted to disband the New Model Army in 1653, Cromwell took over the Long Parliament, and established the  “Rump Parliament” issuing his famous valediction to the vanquished: “You have sat too long for any good you have been doing lately… Depart, I say; and let us have done with you. In the name of God, go!”

Cromwell resisted any attempt to revive the militia system and created a military dictatorship which persecuted Catholics and other undesirables and disarmed them. The situation existed until Cromwell died in 1659. The Parliament carried on Cromwell’s policy and authorized the army to confiscate weapons from anyone deemed a threat. By 1660, the army had had enough, and, under command of Gen. George Monck, seized Parliament and reinstated the royalist members who had been deposed.

Learning little from his father after his restoration, Charles II attempted to reinstate the standing army and disarm the population. The Militia Act granted him control over the militias and The Game Act effectively disarmed everyone not deemed qualified to hunt and required those so-qualified to earn over 100 pounds from the land – an astronomical amount in those times. Only the royalty loving, well-heeled gentry  of the time would qualify. Gunsmiths were also required to report on the number of guns sold weekly and importation on guns was banned.

James II continued his father’s policy of disarmament, but was viewed with further suspicion due to his Catholicism.  When the Duke of Monmouth, the illegitimate son of Charles II, attempted a rebellion, James II seized the opportunity to double the size of the standing Army and install Catholic officers before crushing the insurrection.  James also quartered troops in private homes in violation of long-standing law. The population grew more wary that James II was preparing to impose Catholicism on the realm through force of arms.

In 1688, James’ son-in-law, William of Orange, crossed the channel with a battle-hardened Dutch force of 20,000 men and deposed the King. James fled to France, and William and his spouse, Mary, became the monarchs of Britain in the Glorious Revolution. Parliament restricted  their power by publishing the Declaration of Rights (enacted by Parliament as the Bill of Rights of 1689 or simply, the English Bill of Rights) which listed the numerous grievances against James II including disarming foes of the crown and nationalizing  the militias. The Bill of Rights of 1689 also specifically laid down, in written form, the preservation of the right to bear arms.

There was considerable wrangling over the language with the first draft reading, “”[I]t 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 .” The collective nature of right tied to common defense and public safety being the paramount concern. A second draft was modified to delete “Publick Safety” but retained the language of a collective right stating: “[T]hat the Subjects, which are Protestants, may provide and keep Arms, for their common Defence.”

The final draft approved by Parliament read:”[T]hat the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”  The right thus became a right of individual freedom and not a collective right of defense of the Crown as it had been in Alfred the Great’s time.

Next Week: The American Experience With The Right to Keep and Bear Arms

Submitted by Mark Esposito, Guest Blogger