George Washington Law Review
Book Review, 54 (1986): 452.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT by Stephen P. Halbrook.* Albuquerque, N.M.: University of New Mexico Press (1984) xii, 244 pp. $19.95.

Reviewed by Joyce Lee Malcolm**

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.[1]

For Nietzsche, democratic contrivances were "quarantine measures against that ancient plague, the lust for power," and, as such, "very necessary and very boring."[2] The American Constitution and its Bill of Rights have proven particularly effective "quarantine measures." Yet both the general public and, regrettably, the scholarly world tend to ignore these contrivances until a crisis occurs which rivets our attention upon them.[3]

The Second Amendment to the Constitution is surely among the least deserving of the epithet "boring." Yet it too has been a casualty of benign neglect. Only the recent escalation of gunrelated violence[4] has drawn scholarly attention to that terse guarantee¾and that attention has revealed a sorry state of affairs indeed. The language of the Second Amendment, considered perfectly clear by the framers and their contemporaries, is no longer clear to us. Changed circumstances and long years of indifference have made it difficult to reconstruct the philosophy behind the right, let alone ascertain with any confidence the intention of its drafters. While debates over free speech, freedom of the press, and the separation of church and state focus upon the proper boundaries of these guarantees, debate over the Second Amend-[Page 453] ment begins at a more fundamental level¾the meaning of the Amendment itself. It is at this level that scholarly¾particularly historical¾investigation can be of the greatest aid. Careful, impartial research can uncover the original aim of the Second Amendment and provide a perspective from which to evaluate the Amendment's relevance to current issues and to suggest where boundaries ought to be drawn. This essay examines the current state of such research, the complex nature of the underlying issues, and the latest offering on the history of the Second Amendment¾Stephen P. Halbrook's book, That Every Man Be Armed: The Evolution of a Constitutional Right.[5]

The current controversy over guns has excited new interest in the Second Amendment and elicited a series of articles purporting to clarify its meaning.[6] Unfortunately, much of this literature has failed in its purpose. The fault lies in the Second Amendment's role as the focus of a highly emotional controversy that has attracted belligerents rather than scholars. Too often, the object of the enterprise has been to furnish ammunition for one point of view rather than to analyze and inform. There is nothing inherently reprehensible about partisan debate: it can be healthy and instructive, and it lies at the very heart of our legal system. But it does not breed creditable history. Admittedly, no historian, however hard he tries, can be completely objective. Nevertheless, there is a core of plain facts that can, and should, be taken as the basis for any reliable analysis. It is this body of information that is desperately needed if the debate about the Second Amendment is to advance beyond its present sad state of trades in misinformation and arguments at cross-purposes.

Are such studies worth the effort? Does it matter why the Second Amendment was included in our Bill of Rights two hundred years ago? Is the historical background of only "academic" interest? There are those who maintain that the framers' original intent, whatever it was, is irrelevant today[7]¾a claim they would [Page 454] be unlikely to make about other constitutional rights. But peremptory dismissal of original intent has its dangers. The Second Amendment is part of a framework of "quarantine measures" that has succeeded in protecting Americans from tyranny. Thus, acquiescence in the casual discharge of the current relevance of this right both seriously threatens the integrity of the entire structure of rights and sets bad precedent for probing the meaning of our Constitution. In all fairness to the framers of our republic, who included the Amendment among our basic liberties, and in all fairness to ourselves, who must decide whether the framers' views are still valid, the original purpose of the Second Amendment must be uncovered and made as explicit as possible. If we are to proceed to a more informed and worthwhile debate about the applicability of this amendment to our times, we must be clear and confident in our grasp of the historical forces that shaped and created it. Nothing less will do.

The right of a citizen to be armed is a peculiarly, perhaps uniquely, complex right. Few would argue with Blackstone's judgment that among "the absolute rights of individuals" the right to personal security deserves priority.[8] And if an individual is to defend himself effectively, he should be permitted to possess a weapon. However, a collection of armed individuals or an entire armed population pose a clear threat to a ruler or ruling class and to the maintenance of order, a threat more potent and more direct than any posed by the freedom of speech, assembly, or the press. Yet Blackstone and other champions of the Anglo-American tradition envisaged the collective ownership of arms as something positive and potentially helpful, as the means whereby free peoples could maintain their liberty or recover it if lost.[9] From the outset, ownership of arms entangled the individual's right to self-defense with the dangers or advantages afforded by collective ownership of arms.

The character and composition of national armies also shaped Anglo-American attitudes toward an armed citizenry[10] and [Page 455] intruded into the language of the American, though not the English, right to bear arms. Although classical Greek and Roman histories extolled the virtues of a citizen-army,[11] it was not ancient attitudes but contemporary experience that urged upon Englishmen the need for such an army. During the sixteenth and seventeenth centuries, the rule of European monarchs became more absolute. The large, professional, and permanent royal armies that replaced feudal levies and militias were instrumental in the consolidation of royal power.[12] Englishmen thus had good reason to regard these standing armies as the tool of tyrants, and insisted that, at least for domestic defense, their king rely upon a citizen militia.[13] But if a people can preserve freedom only by relying upon a citizen-army, the citizenry must be armed and trained in the arts of warfare.

The Second Amendment reflects traditional English attitudes toward these three distinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing army. The framers' attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment.

Reliance upon a militia and the maintenance of an armed populace had been normal practice in England from the thirteenth century.[14] It was a policy forced upon English kings by financial constraints for, unlike their continental brethren, the kings were forbidden by the Magna Carta from taxing at will. Compared to a professional army¾then, as now, the most expensive item on a national budget¾a citizen-militia was a bargain. Citizens were required to contribute weapons and citizen-soldiers were paid only when mustering or on active service.[15] In an era before the establishment of police forces, subjects were expected to assume a number of peace-keeping tasks for which arms were useful. For [Page 456] example, a householder was obliged to take his turn standing watch at night or ward during the day, to raise a "hue and cry" and set off in hot pursuit of a culprit, and to join the sheriff's posse when summoned. In order to refine their skills, citizens were required to spend precious leisure time practising with bow and arrow or musket at targets erected on the village green.[16] Not surprisingly, these duties were considered so dangerous, expensive, and irksome that successive monarchs found it necessary to impose fines for noncompliance.[17] Ale houses were even closed on Sundays to keep men at their target practice.[18]

In order to convince disgruntled Englishmen of the benefits derived from personally performing military and police duties, they were duly reminded "how deeply every man is interested in [the militia]," and that "there is not the worth of the peny in a Kingdome well secured without the due use of Armes."[19] Yet the apologist's task was difficult. Although people feared and hated professional armies, most were exasperated by the alternative, especially during times of peace. In the end, it took a civil war, a revolution, the restoration of a king determined to restrict private weapons, and the succession of another monarch bent upon building a professional army while disarming the populace to bring Englishmen to prize their ability to be armed. Only then did they insist that the duty to have arms must become a right. In the history of individual liberty it is difficult to think of any other right that began as a duty.

The opportunity to transform the duty to have arms into a right arose during the Glorious Revolution of 1688. James II had fled, and, before another monarch ascended the throne, members of a convention parliament compiled a Bill of Rights, listing those "undoubted rights and privileges" that James had violated and that they hoped to protect from future kings.[20] Two of the thirteen rights involved weapons: one required parliamentary approval for maintaining professional armies within the realm in peacetime; the other gave Protestant subjects the right to "have Arms for their Defence suitable to their Conditions, and as allowed by Law."[21] The successive drafts and final language of the arms article, within the English Bill of Rights, indicate that despite the assertion that the English Bill of Rights contained only "auntient Rights and Liberties,"[22] this was untrue of the right to [Page 457] have arms. Moreover, the first two drafts of the Bill listed the right for subjects to have arms "for their common Defence," but in the final version Parliament omitted the word "common."[23] This exclusion demonstrates that Parliament intended an individual rather than a collective right.

English emigrants to North America carried with them the social, political, and legal traditions of their homeland. They were, of course, inordinately proud and jealous of their rights as Englishmen¾rights guaranteed them in their royal charters. Among these, they numbered the right to have arms. The use of an armed citizenry and a militia were admirably suited to life in the wilderness. Colonial experience, therefore, served to enhance the old tradition rather than create a new one. Nevertheless, there were developments. Under the circumstances, for example, it was impracticable and unwise to follow the English precedents of affording a right to have arms only to Protestants and restricting the types and number of weapons owned according to social status.[24]

A grasp of the English legacy of customs, attitudes, and rights is basic to a general understanding of American colonial history, and to the specific meaning of the Second Amendment. It is a relatively straightforward and uncomplicated record. The historical materials and the relevant legislation are, and have long been, available for examination.[25] Yet the scholarly neglect of this sub-[Page 458]ject and the preoccupation of modern American authors with modern American controversies have been so prevalent that this history has been badly misinterpreted. For instance, in contradiction to both the plain language of the English right to have arms and the historic record, George Newton and Franklin Zimring and Roy Weatherup claim Englishmen had only a collective and not an individual right to have arms.[26] The same refusal to credit the written record is evidence when, notwithstanding complaints within the text of the English Bill of Rights about forcible disarmament, Roy Weatherup claims that James II "did not disarm Protestants in any literal sense"[27]¾an assertion that would have astonished hundreds of gentlemen whose outrage at their disarmament led to a right to have arms. Nevertheless, these authors address the historical context of the Second Amendment in an effort to understand the Second Amendment, even if they misinterpret that context. But the nadir of Second Amendment scholarship is surely reached with Ben Miller's contention that "[i]t is doubtful that the Founding Fathers had any intent in mind with regard to the meaning of this Amendment."[28]

There is little point in reciting the errors that abound in many modern studies into the origins of the Second Amendment; superficial research and refusal to acknowledge the plainly documented record are recipes for failure. The Second Amendment is firmly rooted in the common law tradition and if we are to give full and unprejudiced consideration to its meaning and present relevance, we cannot deliberate in an historical vacuum. An appreciation of the genesis and evolution of this constitutional guarantee constrains the debate, but ensures a more steadfast focus. Without these constraints, our commentaries are likely to become distorted and obfuscatory¾the all too familiar fate of those who lately have taken the field intent upon promoting a particular point of view that is entirely ahistorical. That this state of affairs has been allowed to persist for so long is a scandal in constitutional studies.

British scholars generally have overlooked the right to have arms, which is not controversial in Britain.[29] No such excuse [Page 459] exists for American scholars. Our knowledge of the American colonial period, about which so much has been written, would surely be well-served if those well-versed both in common law and in English seventeenth-century history turned their attention to the historical origins of the Second Amendment. With the exception of Robert Shalhope's recent work on the ideological origins of the Second Amendment and a smattering of law review articles,[30] this crucial subject remains unexplored. Thus Stephen Halbrook, in the preface to his new book on the evolution of the Second Amendment, can boast that his book contains "the most extensive analysis yet published of the American Revolution and the adoption of the Second Amendment."[31] It is a comment on the poverty of previous research that the substance of Halbrook's claim is a single, thirty-three page chapter that finds time to address not only the American Revolution, but also the entire colonial era prior to it, the events leading up to the war, the controversy over the ratification of the Constitution, and the adoption of the Second Amendment.[32]

The urgent need for careful, impartial information makes Stephen Halbrook's monograph especially welcome. It is, we are told, the "most comprehensive constitutional history of the right to keep and bear arms published to date."[33] The book is undoubtedly comprehensive, beginning with classical Greek views of bearing arms and continuing right up to modern times. Halbrook has compiled a wealth of material from diverse sources. For that we owe him a great debt. The book is generally well written and the author's thesis, that the Second Amendment was intended to protect the right of individuals to keep and bear arms, is insistently argued with supporting evidence marshaled in chapter after chapter. Yet, as a scholarly essay in legal history, the book is flawed in its approach and presentation.

Halbrook is frank about his purpose. He mentions the recent debate over "gun control" and the "lack of attention to the meaning" of the Second Amendment.[34] He is dismayed with the judicial approval of the recent Morton Grove handgun ban, criticizing the district court judge's decision to uphold the ban by "strin- [Page 460] gently" interpreting the Second Amendment.[35] He further decries the Seventh Circuit's affirmance of the ban,[36] drawing our attention to the court's dismissal of "'the debate surrounding the adoption of the second and fourteenth amendments'" as of "'no relevance'" to the resolution of the Morton Grove controversy.[37] When, in the fullness of time, the Supreme Court finally rules on the scope and meaning of the Second Amendment, Halbrook hopes his work will be of aid. Indeed, at the back of the book alongside the usual subject index, he includes an index of relevant cases for just this purpose.

All well and good; yet warning lights flash from the outset. First, the sheer scope of the undertaking is worrisome. Any work that within two hundred pages purports to trace the history of, and views about, an armed citizenry from classical antiquity through Renaissance political theory and practice, common law development, the American colonial period, the drafting of the American Constitution and Bill of Rights, and the subsequent usage of the Second Amendment for nearly two hundred years must qualify as an overview. An overview is valuable for highlighting broad trends, but the appropriateness of this approach stems from its author's ability to draw upon limited studies that have been carefully researched. In the area of the Second Amendment, scholars have done few basic, focused studies. Both the wide scope of Halbrook's project and the lack of illuminating research, therefore, force the author to extend his investigation into areas where his own expertise is slim and his grasp correspondingly tenuous. Halbrook, thus, tends to fall into serious error, as illustrated by this treatment of the common law and English history.

In Chapter One, Halbrook contends that the "categorical imperative[ ]" that "all of the people all of the time (not just when called for organized militia duty) have a right to keep arms" derives from classical texts and seventeenth-century England.[38] The classical Greek authors, of course, never spoke of "all of the people"; slaves and women were excluded. Nor was there any right to have arms in seventeenth-century England, at least until 1689 when, as already noted, only Protestants were included.

This sort of rhetorical flourish and impatience with exceptions are recurring characteristics of Halbrook's work. In the second chapter, for example, the importance of firearms is much overblown; Halbrook informs us that "the death knell of feudalism [Page 461] was struck when serfs and burghers began to acquire the new instrument."[39] That the firearm played a role in the decline of feudalism is certainly true. But its real importance lay in diminishing the military value of the armored knight rather than raising the position of serf or burgher.[40]

If Halbrook's eccentric interpretation were an isolated instance, it would deserve no more than the reader's marginal exclamation mark. But in the same paragraph, Halbrook goes further astray, claiming that from the time firearms were introduced until 1688 they "were used primarily by peasants principally for hunting."[41] This is a compound error; firearms were not used primarily by peasants, and peasants, who were not allowed to hunt, sensibly preferred quieter methods of capturing game when they resorted to poaching.[42] Halbrook continues his mistakes in the sentence immediately following this assertion, stating that "[t]he king [Halbrook neglects to say which king] feared an instrument that signified the economic and political independence of the poor and middle classes, and legislation was promptly passed that barred the keeping and using of arms by all but wealthy landowners."[43] Halbrook seems unaware of the contradiction inherent in saying that those primarily using firearms over a period of more than one hundred years belonged to the group that was legally barred from having them. Moreover, the assertion that legislation was promptly passed to deprive all but wealthy persons of firearms is incorrect, and it is unclear what legislation the author has in mind. Although Henry VIII did attempt to restrict possession of firearms to the wealthy,[44] he retreated from this policy and from 1541 until 1671 only the ownership of handguns was restricted.[45] The clause [Page 462] of the Game Act of 1671,[46] which, unlike earlier game acts, barred commoners from owning any type of firearm, seems to have been rarely enforced and was void after 1689.[47]

Similar errors abound, and one is left with the impression that the author has relied upon secondary sources that have let him down. Halbrook's failure to examine his own information critically and to notice when it is contradictory is less excusable.

In the chapter on the American Revolution and the Second Amendment, Halbrook is on surer ground. He has done extensive, original research and provides valuable information about the drafting of the Second Amendment.[48] Halbrook's discussion of the debates over the ratification of the Constitution and the framing of the Bill of Rights are especially interesting.[49] Yet the discussion has its lacunae, perhaps because the author is obliged to tackle the extensive subject matter in brief compass. For example, there is little on colonial legislation, nothing on the Articles of Confederation, little on the first state constitutions, and only rather scanty coverage of state bills of rights. Yet all these areas are of prime importance for understanding colonial attitudes toward the possession of firearms and the intended meaning of the Second Amendment.

The gravest omissions indicate a fault that runs through the whole book. Halbrook's central thesis is that the framers of the Second Amendment intended an individual as well as a collective right for the people to keep and bear arms. His bias is apparent from the preface, where he describes the antagonists in the current debate over guns as, on the one hand, "the prohibitionists" who oppose "the constitutional right of private possession of firearms" and, on the other, groups who "believe that the Second Amendment means what it says."[50] Clearly Halbrook finds no source of confusion about "what it says." This personal perspective might have made Halbrook's book all the more stimulating had he faced up to the arguments raised by "the prohibitionists," laid out the support for their case, and freely acknowledged instances where his counterevidence is indirect, or even insufficient. But this he does not do.

The chapter on the American Revolution illustrates Halbrook's refusal to grapple with difficult and uncomfortable issues raised by the opposing side. There was a notable lack of debate in the Constitutional Convention about the individual's right to have arms. This can, and probably should, be written off as proof that there was no controversy about private ownership of firearms. [Page 463] Yet if we are to be candid, we ought to admit that records of the open discussion of this crucial issue are hard to find and sketchy.

The first state constitutions, on the other hand, afford the historian a valuable source of contemporary attitudes toward the private possession of handguns. Their treatment of it varied considerably. Some states appended declarations of rights to their new constitutions, others did not. Of those that included a list of rights, some, such as Pennsylvania, proclaimed "[t]hat the people have a right to bear arms for the defence of themselves and the state"[51]¾a clear indication that the framers intended both an individual and a collective right to bear arms. Other states, like Massachusetts and North Carolina, failed to mention the individual right to bear arms explicitly, but did mention the collective right.[52]

Halbrook has nothing to say about why some states omitted a bill of rights and what this might imply for a right to have arms. As for North Carolina's guarantee of "a right to bear arms, for the defense of the State,"[53] Halbrook assures us that this was merely "a subtle way of claiming not only the individual right to personal defense but also the right to overthrow the established (British) government by protecting the state against it."[54] Halbrook offers no evidence to prove such a subtlety, and we are left with the irony that Halbrook here invokes subtle interpretation after earlier eschewing interpretation of the Second Amendment, which simply "means what it says."[55] What must surely be taken into account here is something Halbrook later points out: the House and Senate explicitly "rejected a proposal to add 'for the common defense' after "to keep and bear arms."[56] Halbrook states that Congress intended this rejection to preclude "any construction that the right was restricted to militia purposes and to common defense against foreign aggression or domestic tyranny."[57] If the Congress realized the implications of the expression "common defense," why are we to believe that the men who drafted the Massachusetts and North Carolina Declarations of Rights lacked the same awareness when they decided to include that expression? Halbrook is probably correct in stating that an individual [Page 464] right to have arms was so broadly accepted that many did not feel it needed to be stated explicitly.[58] Nevertheless, if contradictory evidence exists, it should be stated and weighed. Halbrook is so determined to make a convincing, indeed airtight, case for his thesis and so shy of countenancing any difficulties that even an undiscerning reader would be led to adopt an increasingly skeptical attitude to the wealth of information presented so relentlessly.

Halbrook's approach is regrettable because, as I have said, he has assembled a wealth of information. The author's singleness of purpose, however, constantly intrudes. He devotes approximately one quarter of his book to considering whether the protections of the Fourteenth Amendment were intended to incorporate the Second Amendment. Halbrook argues cogently that it was.[59] He also picks his way through a tangle of constitutional efforts by southern states to confront the problem of an armed population that included newly freed blacks. Whatever the means adopted, whatever the evidence or lack thereof, Halbrook finds only confirmation of his thesis that an individual right to have arms, at least for whites, was intended.[60] He is not at all disturbed that some new state constitutions provide no right to have arms, and he shifts with agility from one explanation to another. Thus, he argues that Florida failed to include a right to have arms in order to pass legislation against blacks owning arms.[61] On the other hand, Halbrook reasons that Louisiana's antebellum constitution lacked a right to have arms because its state courts "had held that the Second Amendment applied to the states."[62] When Florida's new constitution was drafted and "neither the majority nor the minority reports on a bill of rights included the provision [for a right to have arms]," Halbrook concludes that "presumably no significance can be attributed to its deletion, and the right to have arms was apparently intended to be included in the unenumerated rights guarantee."[63] Such reasoning invokes too many assumptions with too little hard evidence as support.

Halbrook's zeal for his point of view has led to a skewed history and an even more skewed analysis. But a serious book on the history of the Second Amendment, however flawed, is a first step toward a better understanding. Halbrook himself says of his effort: "[I]t may represent only the tip of an iceberg. Many original sources remain hidden in old records, correspondence, and newspapers."[64] Nevertheless, the book is sufficiently provocative to drive other authors into print and to prompt an increasing stream of careful, scholarly work that will help clarify the purpose of an old and complex prop of Anglo-American democracy.

* Practices law in Fairfax, Va. J.D., Georgetown University; Ph.D., Florida State University.

** Director, New England Heritage Center, Bentley College; B.A., Barnard College; Ph.D., Brandeis University; Fellow, British Royal Historical Society.

1. U.S. CONST. amend. II.

2. THE VIKING BOOK OF APHORISMS 310 (W.H. Auden & L. Kronenberger eds. 1962).

3. Examples of this phenomena are the increased attention drawn to the Fifth Amendment during the 1950s' "red scare"; to the impeachment process and division of responsibility for war powers during the Nixon and Ford administrations; and to the separation of church and state during the recent debates over school prayer.

4. See J. WRIGHT, P. ROSSI & K. DALY, UNDER THE GUN: WEAPONS, CRIME, AND VIOLENCE IN AMERICA at xiii-xiv (1983).

5. S. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984).

6. See, e.g., L. KENNETT & J. ANDERSON, THE GUN IN AMERICA: THE ORIGINS OF A NATIONAL DILEMMA 25-27, 57-82 (1975); 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); Whisker, Historical Development and Subsequent Erosion of the Right to Keep and Bear Arms, 78 W. VA. L. REV. 171 (1975).

7. See R. POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 91 (1957); Miller & Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. CHI. L. REV. 661, 683 (1960); Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 885 & n.2 (1985). For an analysis of how the Supreme Court uses history and interprets the framers' intent, see C. MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969). In his conclusion, Charles Miller describes Justice Oliver Wendell Holmes s eagerness for "'a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them.'" Id. at 200 (quoting O.W. HOLMES, COLLECTED LEGAL PAPERS 195 (1952)).

8. See 1 W. BLACKSTONE, COMMENTARIES *129.

9. See id. at 143-44; T. MACAULAY, CRITICAL AND HISTORICAL ESSAYS, CONTRIBUTED TO THE EDINBURGH REVIEW 154, 162 (Leipzig 1850); 3 J. STORY, COMMENTARIES ON THE CONSTITUTION 746-47 (Boston 1833); N. WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION PROPOSED BY THE LATE CONVENTION HELD AT PHILADELPHIA (Philadelphia 1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE: 1787-1788, at 56 (P. Ford ed. 1888).

10. For information on the Anglo-American attitude toward militias and standing armies, see B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 48, 113 (1967); L. SCHWOERER, "NO STANDING ARMIES!" THE ANTIARMY IDEOLOGY IN SEVENTEENTH-CENTURY ENGLAND (1974). For a contemporary view, frequently reprinted and highly influential in America, see J. TRENCHARD, AN ARGUMENT SHEWING, THAT A STANDING ARMY IS INCONSISTENT WITH A FREE GOVERNMENT, AND ABSOLUTELY DESTRUCTIVE TO THE CONSTITUTION OF THE ENGLISH MONARCHY (London 1697), reprinted in 2 A COLLECTION OF STATE TRACTS, PUBLISHED DURING THE REIGN OF KING WILLIAM III 564 (London 1706). There are numerous references to the prevailing colonial view in the debates of the state conventions called to consider adoption of the new federal constitution. See, e.g., 2 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 97, 406 (Philadelphia 1836); 3 J. ELLIOT, supra, at 246-47, 380, 385-86.

11. See S. HALBROOK, supra note 5, at 9-20.

12. For information on the role of the professional army in Europe during the 17th and 18th centuries, see M. HOWARD, WAR IN EUROPEAN HISTORY 54-74 (1976); Roberts. The Military Revolution, in 1 SEARCHING FOR MODERN TIMES, 1500-1650: DISCUSSION PROBLEMS AND READINGS 221-31 (O. Ranum ed. 1969).

13. See L. SCHWOERER, supra note 10, at 56-57, 70-71, 103, 127.

14. See Statutes of Winchester, 13 Edw. (1285). For an interesting and concise account of this tradition, see C. CRUICKSHANK, ELIZABETH'S ARMY 1-16 (2d ed. 1966).

15. C. CRUICKSHANK, supra note 14, at 133-34.

16. See Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 HASTINGS CONST. L.Q. 285, 291-92 (1983).

17. See id.

18. See id. at 294; G. ROBERTS, THE SOCIAL HISTORY OF THE PEOPLE OF THE SOUTHERN COUNTIES OF ENGLAND IN PAST CENTURIES at viii-ix (London 1856); 6 COMMONS DEBATES, 1621, at 318 (1935).

19. R. WARD, ANIMADVERSIONS OF WARRE, OR A MILITAIRE MAGAZINE OF THE TRUEST RULES AND ABLEST INSTRUCTION FOR THE MANAGING OF WARRE 150 (London 1639).

20. 1 W. & M., Sess. 2, ch. 2 (1689).

21. Id.

22. Id.

23. Anonymous Account of the Convention Proceeding, 1688, Rawlinson MS D1079, fol. 8 (available in Bodleian Library, Oxford); 10 H.C. JOUR. 21-22 (1688-1693).

24. British subjects immigrating to the American colonies were promised liberty of fishing and fowling. None of the colonies restricted the possession of firearms by citizens according to social status. Rather, the emphasis was on requirements to own sufficient firearms and the legal requirement to bear them on certain occasions. See THE BOOK OF THE GENERAL LAWES AND LIBERTYES CONCERNING THE INHABITANTS OF THE MASSACHUSSETTS 35, 39-41 (1st ed. Boston 1648 & photo. reprint 1975); 1 THE DOCUMENTARY HISTORY OF THE STATE OF NEW YORK 88 (E. O'Callaghan ed. 1849); THE OLD DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY OF VIRGINIA, 1606-1689, at 35 (W. Billings ed. 1975); THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 285-86 (J. Trumbull ed. 1850); 1 RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE PLANTATIONS IN NEW ENGLAND 77, 94 (J. Bartlett ed. 1856).

25. Valuable and readily accessible sources for information about English legal practice include: Statutes of the Realm, Journal of the House of Commons, Journal of the House of Lords, and Calendars of State Papers, Domestic Series. There are also an increasing number of county quarter session records in print. See, e.g., Minutes of Proceedings in Quarter Sessions Held for the Parts of Kesteven in the County of Lincoln, 1674-95, in PUBLICATIONS OF THE LINCOLN RECORD SOCIETY vols. 25-26 (1931); Quarter Sessions Records for the County of Somerset, 1607-77, in SOMERSET RECORD SOCIETY vols. 23-24, 28, 34 (1907-1919); Warwick County Records: Quarter Session Order Books, 1625-90, in WARWICK COUNTY COUNCIL vols. 6-7 (1935-1953); Worcestershire County Records Division 1: Documents Relating to Quarter Sessions, in WORCESTERSHIRE HISTORICAL SOCIETY vol. 1 (1899-1900). For a good general work on the quarter session courts of this era, see A. HAMILTON, QUARTER SESSIONS FROM QUEEN ELIZABETH TO QUEEN ANN (1878).

26. G. NEWTON & F. ZIMRING, FIREARMS AND VIOLENCE IN AMERICAN LIFE: A STAFF REPORT SUBMITTED TO THE NATIONAL COMMISSION ON THE CAUSES & PREVENTION OF VIOLENCE 255 (1969); Weatherup, supra note 6, at 973-74.

27. See Weatherup, supra note 6, at 973.

28. Miller, The Legal Basis for Firearms Controls, in REPORT TO THE AMERICAN BAR ASSOCIATION § 3, at 26 (1975) (emphasis added).

29. Although there was heated debate during the nineteenth century and vigorous opposition in Parliament whenever proposed legislation placed even limited restrictions on the ownership of firearms, see, e.g., 41 PARL. DEB. (1st ser.) 1139-42 (1819), the restrictive legislation of the present century, see, e.g., Firearms Act, 1920, 10 & 11 Geo. 5, ch. 43 (current version within Firearms Act, 1968, ch. 27); Firearms and Imitation Firearms (Criminal Use) Act, 1933, 23 & 24 Geo. 5, ch. 50 (current version within Firearms Act, 1968, ch. 27), did not occasion the same resistance. Although this insouciance is difficult to explain, the English attitude has deflected scholarly attention from the issue. For the best account of the modern British experience, see C. GREENWOOD, FIREARMS CONTROL: A STUDY OF ARMED CRIME AND FIREARMS CONTROL IN ENGLAND AND WALES (1972).

30. See Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599 (1982); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST. 22 (1984); Cress, The Second Amendment and the Right to Bear Arms: An Exchange, 71 J. AM. HIST. 587 (1984); Levin, supra note 6; Weatherup, supra note 6; Whisker, supra note 6.

31. S. HALBROOK, supra note 5, at x.

32. See id. at 55-87.

33. Id. at xi.

34. Id. at ix.

35. See id. at xi. Halbrook juxtaposes Judge Decker's decision in Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D. Ill. 1981), aff'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), with his earlier broad interpretation of the First Amendment in Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.) (permitting Nazis to march in Skokie, Illinois), aff'd, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978).

36. Quilici v. Village of Morton Grove, 695 F.2d 261, 271 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

37. S. HALBROOK, supra note 5, at xi (quoting Quilici v. Village of Morton Grove, 695 F.2d 261, 270 n.8 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)).

38. Id. at 8.

39. Id. at 40.

40. See, e.g., M. HOWARD, supra note 12; Roberts, supra note 12.

41. S. HALBROOK, supra note 5, at 40.

42. Game acts effectively removed the peasants' privilege to hunt. The 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. See 13 Ric. 2, ch. 13, § 2 (1389). The act was entitled "None shall hunt but they which have a sufficient living." Id. Subsequent game acts continued the property qualification. See, e.g., 19 Hen. 7, ch. 11, § 2 (1503); 5 Eliz., ch. 21, § 3 (1562); 3 Jac., ch. 13, § 5 (1605); 7 Jac., ch. 13, § 4 (1609); 13 Car. 2, ch. 10, § 2 (1661).

43. S. HALBROOK, supra note 5, at 40. Halbrook refers generally to the "the fifteenth-and sixteenth-century statutes of Henry VII, Henry VIII, and James II," which he claims "sought to disarm the aspiring bourgeois and peasant classes." Id. He presumably meant James I rather than James II, because the latter lived and ruled during the seventeenth century, however, it is unclear which specific statutes he had in mind.

44. See 3 STATUTES OF THE REALM 215, 457 (compiling Henry VIII's early efforts to control firearms).

45. Two acts that established restrictions on ownership of firearms in England of more lasting significance were 33 Hen. 8, ch. 6 (1541), which restricted ownership of handguns to persons with an annual income of at least *100 (a very high sum) and 2 & 3 Edw. 6, ch. 14 (1548), which prohibited the use of gunshot and the firing of handguns in cities or towns. The former was not repealed until 1831, 1 & 2 Geo. 4, ch. 32 (1831), the latter not until 1695, 6 & 7 Will. 3, ch. 13 (1695).

46. 22 & 23 Car. 2, ch. 24 (1671).

47. See 4 & 5 W. & M., ch. 23 (1692); Malcolm, supra note 16, at 302-13.

48. See S. HALBROOK, supra note 5, at x, 55-87.

49. See id. at 65-87.

50. See id. at ix.

51. PA. CONST. of 1776, Declaration of Rights, art. XIII.

52. MASS. CONST., Declaration of Rights, art. XVII ("The people have a right to keep and bear arms for the common defence."); N.C. CONST. of 1776, Declaration of Rights, art. XVII (providing that the people have "a right to bear arms, for the defense of the State").

53. N.C. CONST. of 1776, Declaration of Rights, art. XVII.

54. S. HALBROOK, supra note 5, at 64.

55. See id. at ix.

56. Id. at 81 (citing S. Otis, Senate Journal, MSS (Sept. 8, 1789) (available in Virginia State Library, Executive Communications, Box 13)).

57. S. HALBROOK, supra note 5, at 81.

58. See id. at 81-82, 87.

59. See id. at 146-47, 153.

60. See id. at 133-34.

61. See id. at 126.

62. Id. at 127.

63. Id. at 128.

64. Id. at xi.