How a medieval English law affects the US gun control debate

BY Herschel Smith
1 year, 2 months ago

BBC.

The case – which stems from a New York legal battle – challenges a state law that requires that gun users who want a concealed carry permit first prove they have a valid reason.

To help them determine how broad the rights of America’s many gun owners go, the country’s nine supreme court judges are also looking back to the 1328 Statute of Northampton, which dates back to the reign of Edward III.

[ … ]

In a separate 2008 Supreme Court case that struck down strict Washington DC handgun laws, the late Justice Antonin Scalia argued that the Second Amendment to the US constitution codified “a pre-existing right” from England.

He added that by the time the United States was founded in 1776, the “right to have arms had become fundamental for English subjects.”

Some historians, however, have disagreed with that assessment, noting that by the late 1200s, English authorities had passed laws restricting the right to carry weapons while traveling in public or in London.

The later 1328 Statute of Northampton – which predates the first recorded use of a firearm in Europe by several decades – declared that nobody “except the King’s servants in his presence” will “go nor ride armed by night nor by day” in fairs, markets “nor in no part elsewhere”.

Lawyers for New York, for their part, have written to the Supreme Court that from the Middle Ages onward, laws “broadly restricted the public carrying of firearms and other deadly weapons.”

Saul Cornell, an American history professor at Fordham University, said he believes it is “beyond ironic” that US gun advocates would look to England as the foundation of their view on gun rights.

“England was a super hierarchical society, and one in which the King has a monopoly of force and violence,” Mr Cornell told the BBC. “I’m not sure how anyone could conclude that this was a society that nourishes this robust, libertarian view of arms.”

“It just doesn’t make any sense whatsoever to any who really understands the complexity of English history,” he added. “Obviously, that doesn’t include many people in the gun rights community or many people sitting on some courts in America.”

Ah, we’re to the crux of the matter, yes?  So let’s help explain this to the article author and the Fordham professor.

As we observed earlier,

Briefly, I couldn’t care less what English common law says about anything.  The colonists fought a war over many things, including gun control (see Kopel, “How the British Gun Control Program Precipitated the American Revolution“).

The colonists fought a war against the government to overthrow tyranny.  It’s ridiculous and sophomoric to pretend that they ever assumed that men wouldn’t engage in RKBA, or that they wouldn’t turn those guns against tyranny.

Presuppositions.  This is the stuff of life.  The 2A makes no sense unless seen in the light of the lives of the men who wrote it and their own assumptions, value judgments and world and life views.

Any lawyer who begins with, discusses or ends with English common law isn’t worth his weight in salt.

But you see, most lawyers aren’t worth their weight in salt, or they are tipping their hat to the ruling elite inside the beltway.  As for the judges and justices, look at just how badly they got it wrong.  Consider Scalia’s own words, and after reading them again, don’t ever again laud the ridiculous Heller decision or Scalia as it pertains to rights.

In a separate 2008 Supreme Court case that struck down strict Washington DC handgun laws, the late Justice Antonin Scalia argued that the Second Amendment to the US constitution codified “a pre-existing right” from England.

He added that by the time the United States was founded in 1776, the “right to have arms had become fundamental for English subjects.”

The professor from Fordham is correct in that “England was a super hierarchical society, and one in which the King has a monopoly of force and violence.”  Not only was Scalia wrong in this sentiment or analysis, he founds the RKBA solely in English common law after the founders waged a war against England, with that war precipitated by the very thing under debate, i.e., gun control.

It does indeed boggle the mind.  But not really so much when one considers that the Heller decision was all about making the RKBA semi-palatable for the nobility inside the beltway.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

We must keep the chattering class and the wine and cheese crowd happy at all costs.

The secret that the Fordham professor and the author of this piece doesn’t understand is that most Americans see the 2A as a covenant, not a source of rights.  Most gun owners see their RKBA as given by God, not bestowed by the state.

Arguing the way these lawyers have, and judging the way even Scalia did, is not representative of America.  So the professor is utterly wrong when he says “Obviously, that doesn’t include many people in the gun rights community …”

Oh my.  He may correctly observe that of the legal community who is hell bent on pleasing their masters, but neither the author nor the professor are very much in touch with gun blogs, gun web sites, discussion threads (like reddit/Firearms or AR15.com), or even perhaps just knowing gun owners throughout flyover country.  We must be careful to distinguish between those who believe that we need the king’s permission to hunt the royal forests (because he owns the land), and we need the constable’s permission to carry a weapon (because he owns the roads), versus those who see such demands as a breakage of covenant leading to divorce.  We’ve been through divorce before, and it’s ugly.

What God grants cannot be removed by man, for it is as immutable as His nature.  This belief is hard wired into the American soul.  If the “nobility” presses this too far, these are lessons they may [re]learn the hardest of ways.


Comments

  1. On November 4, 2021 at 10:37 pm, Frank Clarke said:

    It simply stuns me that any American can pen the words “…codified “a pre-existing right” from England” when the text of the Declaration of Independence (that documented the philosophical base of the entire revolutionary idea) plainly says “…endowed by their Creator with certain unalienable rights…” We aren’t endowed by the ‘1328 Statute of Northampton’. The 1328 Statute of Northampton is completely irrelevant to the 2A. SCOTUS even made that plainer (than Scalia did) in Cruickshank when Taney wrote “neither is it (the 2A) dependent on the Constitution for its existence”.

    Sheesh!

  2. On November 5, 2021 at 12:10 am, Tac said:

    We abolished British law when we Took our freedom from the crown.

    All gun laws are unconstitutional. If the founders would have wanted more gun laws, they would have included them in the articles of the constitution. They didn’t.

    Instead, they amended the constitution and said no gun laws would be constitutional. Ever. And if the United States government threatens your personal sovereignty, then you have a right to stand up and fight them with your firearms.

    There is zero relevance in any British law. I don’t care about the history of any pre-constitutional firearm law, as it was not included in our constitution.

    All of this dog and pony show is nothing more than grasping at straws out of desperation. The Constitution does not make any gun law legal, in fact, it makes all gun laws illegal. There is no Dodge. All of the trumped-up justification in the world does not change the constitution. It takes two-thirds of the house, two-thirds of the Senate, and three-quarters of all the states to change the constitution. So please, anti-gun lobby, follow the instructions. You’ll find them in article 5 of the Constitution.

    It might be easier for them anti-gunners to start their own country. Job one, go find yourselves some land somewhere. This land that belongs to Americans.

  3. On November 5, 2021 at 7:33 am, Brandon said:

    These idiot justices, like Barrett, who talk about the need to compromise regarding “sensitive” places where arms are “inappropriate” should be impeached. It is not their purview to discuss what they think is proper, wise, or even just. The second amendment is clear that no infringement ion RKBA is lawful. If any judge thinks it is insufficiently restrictive they need to be reminded that they betray their oath when then insert their opinion into a ruling. There is a mechanism to curtail the RKBA: it is the process of amending the constitution. That process belongs to the citizenry – not the any agent of the federal government.

  4. On November 5, 2021 at 7:56 am, Longbow said:

    English Common Law is/was the foundation of all of our Statute Law and jurisprudence. This is the tradition which the colonists followed and the framework within which all statute law was written after Independence.

    The founders’ generation did not throw the old guidebook away and have at it writing a new one based on nothing. If they had done that, our independence would have looked much more like the French Revolution. Unlike French Peasants, our ancestors were mostly property owners with a body of law and jurisprudence to protect that property. Don’t you see? This is what communist revolutions within peasant societies, so quickly dissolve into blood baths (there is no law higher than our whim!)?

    So, the reason to look back at English law, particularly the English Bill of Rights, Is to show how these rights have been exercised by the people for centuries and have become a part of their culture and traditions, indeed their very lives. The free exercise of rights has never led to chaos over these centuries (This parallels the dooms day arguments vs. the actual results of increase concealed carry where it has been liberalized). The suppression of the rights, enjoyed by free men from birth, “evinces a design to reduce them under absolute despotism”.

    The framers of our Constitution didn’t lay the foundation upon nothing.

  5. On November 5, 2021 at 8:10 am, Done. said:

    No one gives a toss what the English think about gun rights.

  6. On November 5, 2021 at 8:52 am, Herschel Smith said:

    @Done,

    Unfortunately, the courts do.

    @Longbow,

    We must be careful to distinguish between common law as it relates man to man (e.g., laws concerning divorce, theft, murder, rape, kidnapping, trespassing, contracts, etc.) and law as it relates man to government.

    Many laws relating man to man are the same, some are not. As for the constitution and BoR, there is ….. *NOTHING* …. like that in English law.

    There are no concepts of rights like you see in the American constitution, esp. the right of resistance to tyranny, the most obvious.

    The right of resistance to tyranny is based squarely on continental Calvinist doctrine of the state, church and family being subservient to God’s law-word as found in the Scriptures, and English law is based squarely on the [mistaken] right of kings to rule. English law doesn’t recognize there being any covenant between king and the people, or king and God.

    For more reading on this, see:

    R. J. Rushdoony, “The One and the Many,” “This Independent Republic,” and “The Nature of the American System,” and Douglas Kelly, “The Emergence of Liberty in the Modern World.”

  7. On November 5, 2021 at 9:20 am, Swrichmond said:

    I am here on the planet for my own purposes and no one else’s. Those purposes are guided by this thing called “enlightened self interest”. Self interest enlighten through historic study of what works and what doesn’t, developing into a sense of right and wrong, morality, etc. Emotion tempered by intelligence, and vice versa. Forced collectivism is slavery and everyone knows it.

    There are no special secrets, theories or strategems here. The entire history of the planet shows what happens when people have no means to defend themselves from sociopaths and tyranny. I don’t care about “legal precedent”, lawyers can suck my dick.

    You can’t have my guns. Not playing games in courts, don’t care. Hope we win but don’t care. Given what’s been going on in the courts, and Kavanaugh and Barrett’s cowardice, not hopeful.

  8. On November 5, 2021 at 9:48 am, Ranger Up said:

    There is no federal common law. What we have is Admiralty Maritime mixed with other bullshit. As we have seen recently the current “law” is for the peasants so perhaps this is resemblance to the French Revolution. Read Borks book The Tempting of America. The overthrow has been completed.

  9. On November 5, 2021 at 10:48 am, pyrrhus said:

    As many of us who practiced Constitutional Law observed at the time Heller was decided, what is so difficult to understand about the words “Congress shall make no law”?

  10. On November 5, 2021 at 11:46 am, X said:

    The entire business of parsing English common law is an exercise in sophistry. Yes, the Second Amendment was influenced by the English Bill of Rights of 1689. But the English Bill of Rights limits the RKBA to “loyal Protestants” and is regulated “by law.” In other words, it is a privilege granted by Parliament that can be, and has been, revoked — not and immutable “right.”

    The Second Amendment contains no qualifying language whatsoever. The “right of the people to keep and bear arms, shall not be infringed,” period. Further the entire American government is predicated on Jefferson’s discussion of God-given natural rights.

    As Herschel points out above, it is simply absurd to cite the English government as a source in discussing American law when the country was founded on an armed revolution sparked by Gen. Howe’s militarized gun confiscation attempt in 1775.

  11. On November 5, 2021 at 11:28 pm, SemperFi, 0321 said:

    @RangerUp;
    again, people refuse to understand they were sold out decades and even centuries ago to a false court system, and lied to by their Bolshevik school system into believing they were free men, all the while being slaves to a foreign corporation. Explain Admiralty Law and they laugh at you. Tell them they’re owned as tax slaves by the FedRes and they mock you.
    Fuk’m all, they’ve earned this. And never interrupt someone trying to off himself, he’s doing the planet a favor, just like with the vax, if they’re that stupid they’re not worth saving.

  12. On November 6, 2021 at 9:34 am, SamlAdams said:

    Any reading of English history (even cursory) will turn up no shortage of armed rebellions by commoners, right up to the English Civil War and its obvious outcome.

  13. On November 6, 2021 at 10:34 am, William Cleveland said:

    The words of relevance are: “Unalienable God Given Rights”. Considering any history at all is only usefull in reminding us of the “depths of evil that some men have willingly and would yet again inflict against the rest of mankind”. After the useless conversations are completed the “trigger pullers of God and Country” will be obliged to make the decision in earnest. Only one side will see the dawn and Gods Will is the only arbitration to be considered. All else will be forced, by the Communist Left, to be settled by Patriots and Believers. Only by Force Of Arms and our committment to God, Family and Country will Freedom survive. This is not something we chose; all we ever wanted was to be left alone. All that remains to be established is the date upon which our destiny will be settled. Harden your hearts and assume that date could be tomorrow.

  14. On November 6, 2021 at 1:52 pm, TRX said:

    > We abolished British law when we Took our freedom from the crown.

    We adopted the British Common Law in its entirety after the Revolution. The Crown Court disbarred all American Colonial lawyers then. Vice-President Aaron Burr took his case before the Court in London and got his (and everyone else’s) existing bar status restored.

    Even now, in 2021, anything that hasn’t been specifically ruled on by an American legislature or court still falls back to the Common Law

  15. On November 7, 2021 at 12:15 pm, D said:

    Nothing for nothing, it is amazing that this moronic debate continues in the 21st century-its not like we have access to nearly any information instantly and can communicate instantly with anyone anywhere. Yet the us still has 20k gun laws…incredibly idiotic and evil.

  16. On November 7, 2021 at 11:24 pm, luke2236 said:

    Luke 22:36. This is all the ‘right’ / permission I need quite frankly.

  17. On November 9, 2021 at 2:09 am, Ohio Guy said:

    Some folks just get accustomed to their chains I guess. Hope I die in a pile o brass. (before I get old)

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