Cleveland State Law Review Volume 57 Issue 3 Article 3 2009 Arms for Their Defence - An Historical, Legal and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago Patrick J. Charles Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Second Amendment Commons How does access to this work benefit ou?y Let us know! Recommended Citation Patrick J. Charles, Arms for Their Defence - An Historical, Legal and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago , 57 Clev. St. L. Rev. 351 (2009) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol57/iss3/3 This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. “ARMS FOR THEIR DEFENCE”?: AN HISTORICAL, LEGAL, AND TEXTUAL ANALYSIS OF THE ENGLISH RIGHT TO HAVE ARMS AND WHETHER THE SECOND AMENDMENT SHOULD BE INCORPORATED IN MCDONALD V. CITY OF CHICAGO PATRICK J. CHARLES* That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.—English Declaration of Rights of 1689 I. INTRODUCTION .................................................................... 352 II. THE 1689 ENGLISH DECLARATION OF RIGHTS..................... 356 A. The Road to an Affirmed Allowance to “Have Arms”............................................................... 358 B. The Creation of the Allowance to “Have Arms”............................................................... 363 III. CORRECTING THE “INDIVIDUAL RIGHT” INTERPRETATION OF THE CONVENTION ............................... 383 IV. THE GAME ACTS AND UNDERSTANDING “ARMS FOR THEIR DEFENCE” .......................................................... 386 V. THE DISARMING OF PAPISTS AND THE ALLOWANCE OF ARMS FOR SELF-DEFENSE............................................... 398 VI. THE MILITIA ACT OF 1757................................................... 403 VII. GRANVILLE SHARP IN UNDERSTANDING THE ALLOWANCE TO “HAVE ARMS”........................................... 411 VIII. BLACKSTONE’S COMMENTARIES AND THE ALLOWANCE TO “HAVE ARMS”........................................... 414 IX. ST. GEORGE TUCKER ON BLACKSTONE’S COMMENTARIES AND THE ALLOWANCE TO “HAVE ARMS” ..................................................................... 418 X. THE AMERICAN PERSPECTIVE ON “HAVE ARMS” ................ 421 XI. CONCLUSION........................................................................ 454 * Patrick J. Charles is the author of The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009), Irreconcilable Grievances: The Events that Shaped the Declaration of Independence (2008), and Washington’s Decision: The Story of George Washington’s Decision to Reaccept Black Enlistments in the Continental Army, December 31, 1775 (2006). The recipient of the 2008 Judge John R. Brown Award for his research on the Second Amendment and States’ “bear arms” provisions, Patrick received his juris doctor from the Cleveland-Marshallg College of Law. Patrick would like to thank Colin Nicolson, David Konig, Carl T. Bogus, and Kristen Brown for their valuable advice, help, and assistance. He would also like to thank Laura Bedard and the Georgetown Law Library’s Special Collections staff for their help in finding materials and allowing access to their collection. Finally, Patrick would like to specially thank Lois Schwoerer and Erin Kidwell for their detailed critiques and improvements to the article. Their comments were especially helpful. 351 Published by EngagedScholarship@CSU, 2009 1 352 CLEVELAND STATE LAW REVIEW [Vol. 57:351 I. INTRODUCTION In early 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states.1 Coming less than two years after the Court’s landmark decision in District of Columbia v. Heller,2 the issues affecting the Fourteenth Amendment are two-fold. First, the Court will determine whether the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause. Second, the Court will determine if the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges and Immunities Clause. While the “privileges and immunities” issue will receive the overwhelming attention of the legal community, what will seemingly be ignored is the history of the Anglo-American tradition of “having arms,” for its history may prove crucial as to whether the Second Amendment is incorporated through either the Fourteenth Amendment’s Due Process or Privileges and Immunities Clauses. In the wake of Heller, the first and only court to issue an opinion incorporating the Second Amendment was the Ninth Circuit Court of Appeals’ vacated decision in Nordyke v. King.3 In incorporating the Second Amendment through the Fourteenth Amendment’s Due Process Clause, the court determined that “the right to keep and bear arms is ‘deeply rooted in this Nation’s history and tradition’” and “is necessary to the Anglo-American conception of ordered liberty that we have inherited.”4 There is no denying that the limited “individual right” to defend against standing armies— foreign or domestic—predated the Constitution. However, there is no substantiating historical evidence that a right to own and use guns in the home was ever meant to be “fundamental to the American scheme of justice.”5 Given the Supreme Court’s holding in District of Columbia v. Heller, the Nordyke court’s conclusion was not at all surprising. The Court majority had already determined that the “District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”6 The Second Amendment reads, “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.”7 Most legal scholars and historians argue that this right mirrors a provision in the 1689 English Declaration of Rights, which ensures that “subjects which are Protestants may have arms for their defence suitable to their conditions 1 NRA v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted sub nom. McDonald v. City of Chicago, 2009 U.S. LEXIS 5150 (U.S. Sept. 30, 2009) (No. 08-1521). 2 District of Columbia v. Heller, 128 S. Ct. 2783 (2008). 3 Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), vacated en banc, 2009 U.S. App. LEXIS 16908 (D.C. Cir. July 29, 2009) (No. 07-15763). 4 Id. at 457. 5 Duncan v. Louisiana, 391 U.S. 145, 149 (1968). 6 Heller, 128 S. Ct. at 2821-22. 7 U.S. CONST. amend. II. https://engagedscholarship.csuohio.edu/clevstlrev/vol57/iss3/3 2 2009] ARMS FOR THEIR DEFENCE 353 and as allowed by law.”8 It is more than reasonable to assert that this provision heavily influenced the Second Amendment, because the Founding Fathers viewed the American Revolution as a reaffirmation of the Glorious Revolution.9 Therefore, it is fair to say that the Declaration of Rights’ “have arms” guarantee was the precursor to, if not the inspiration for, the Second Amendment. This fact is not only historically significant, it is also legally significant. It was the means by which the Supreme Court majority came to its determination in Heller. The Court stated that the English “right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.”10 In other words, the Supreme Court majority interpreted the English “have arms” provision as a right to personal armed self-defense—an interpretation it thought the Founders understood to be the Second Amendment’s “central component.”11 This historical interpretation of the “have arms” provision laid the foundation for the decision in Nordyke. The Ninth Circuit Court of Appeals did not touch upon the history of the English right to “have arms.” Instead, it merely took the Heller majority’s analysis as sufficient to prove that an alleged right to own a gun for defense of the home was firmly rooted in the Anglo-American tradition. Both the Ninth Circuit Court of Appeals and the Supreme Court majority have been misled. They have relied upon incomplete and misguided research of both the English “have arms” provision and the Founders’ understanding of that limited right.12 Both courts have been led to believe that lower-status Englishmen’s discontent with the gaming laws, coupled with their required duties in the militia, created a constitutional right to own arms to defend the home—a right that has never historically or legally existed. The problem is that Individual Right Scholars have seemingly ignored the abundant sources that explain exactly what the English allowance to “have arms” was meant to protect. First, the provision is an allowance—not a right—because it states that Protestants “may have arms.” Furthermore, it was conditioned on the arms being “suitable to their condition and as allowed by law.” Both phrases greatly limit an individual’s ability to possess arms. This was done intentionally,