The Right To Keep And Bear Arms In Canada
Canadians regularly hear some media pundit or columnist informing them that no right to keep and bear arms exists in Canada, and those who refer to such a right have been watching too much American television. Similar opinions are often voiced by some politicians - such as Allan Rock, former Justice Minister of Canada, who apparently was not paying attention during his Constitutional Law classes while at university.
Regrettably, it appears to be more a case of an uninformed and ignorant media and select public figures than an accurate observation regarding the right to keep and bear arms in Canada. The right to keep and bear arms is an inherent right that stems from the English Bill of Rights - not from the U.S. Bill of Rights ratified over a hundred years later and whose Framers merely included an existing right they had held at the time they were still English subjects. The discussion of whether this and other rights such as the right to freedom of religion exist because of an act of government (which can by inference also remove them) or because certain rights are inherently the property of every human being simply through the fact we exist is another discussion that will not be addressed here.
This paper simply addresses the origin of the right to keep and bear arms - a right recognized by government at the same time and in the same document that other rights held by Canadians were recognized which exist today without question or attack as the right to keep and bear arms does. It also details how that right came to exist in Canada.
Terminology: "To Keep Arms."
In eighteenth-century English, an individual could "keep arms," and keep them for private purposes, unrelated to militia duty, just as he could keep any other private property, and the phrase was commonly used in this sense. For example, in Rex v. Gardner (K.B. 1738), a defendant charged with "keeping a gun" in violation of a 1706 English statute (which prohibited commoners from keeping specified objects or "other engines" for the destruction of game) argued that "though there are many things for the bare keeping of which a man may be convicted; yet they are only such as can only be used for destruction of the game, whereas a gun is necessary for defence of a house, or for a farmer to shoot crows." The court agreed, reasoning that "a gun differs from nets and dogs, which can only be kept for an ill purpose." (1) The Court of Common Pleas six years later treated Gardner as having "settled and determined" that "a man may keep a gun for the defence of his house and family," (2) and in 1752 the King's Bench reiterated that "a gun may be kept for the defence of a man's house, and for divers other lawful purposes." (3) The same usage appeared in an earlier prosecution of a man for "keeping of a gun" contrary to a statute that barred all but the wealthy from privately owning small handguns. (4)
William Blackstone, whose Commentaries on the Laws of England, first published in 1765 and recognized as the authoritative reference on English constitutional law for centuries, wrote, without any reference to the militia, of "person[s]" who are "qualified to keep a gun" and are "shooting at a mark," apparently on their own property. (5) He also noted that certain persons could not "keep arms in their houses," pursuant to a statute that used "keep" to signify private ownership and control over arms, wherever located. (6)
In short, the phrase "keep arms" was for centuries in England commonly understood to denote ownership of arms by private citizens for private purposes. It was not a right pertaining to government or even to people in organized groups.
"To . . . Bear Arms."
To "bear" was, in its' time and now, a word with numerous definitions - used with great "latitude" and "in very different senses," as Samuel Johnson noted in his dictionary. (7) Its basic meaning was simply to "carry" or "wear" something, particularly carrying or wearing in a way that would be known to others, such as in bearing a message, bearing another person, or bearing something as a mark of authority or distinction. (8) As a result, "bear," when taking "arms" as its object, could refer to multiple contexts in which one might carry or wear arms in this way. It is true that "bear arms" often did refer to carrying arms in military service. But the phrase was not a term of art limited to this sense. Arms also could be "borne" for private, non-military purposes, principally tied to self-defense.
A 1780 opinion of London's Recorder (the city's legal adviser and the primary judge in its criminal court) on the legality of a private self-defense association acknowledged "the rights of the people of this realm to bear arms, and to instruct themselves in the use of them, collectively," albeit within limits. (9)
James Burgh, a Scotsman whose 1774 Political Disquisitions were well-known in England and abroad, including being cited in The Federalist during the debate that would lead to the US Bill of Rights, wrote that "[t]he possession of arms is the distinction between a freeman and a slave. . . . [H]e who thinks he is his own master, and has anything he may call his own, ought to have arms to defend himself and what he possesses, or else he lives precariously and at discretion." (10) Blackstone's summary of key English rights explains this point. With no mention of the militia, he described the "right of having and using arms for self-preservation and defence" as the last security of individual English subjects for keeping the state, including themselves, free:
[T]he rights, or, as they are frequently termed, the liberties of Englishmen . . . consist primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary, that the Constitution of Parliament be supported in its full vigour; and limits, certainly known, be set to the royal prerogative. And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.
This right to arms, Blackstone added, facilitates self-defense "when the sanctions of society and laws are found insufficient to restrain the violence of oppression." (11) John Locke, although not explicitly discussing arms, similarly explained the individual right of self-defense that a free society allows. Discussing the right of self-defense against a robber, he wrote: "I have no reason to suppose that he who would take away my liberty, would not, when he had me in his power, take away everything else." Therefore "the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which if lost, is capable of no reparation, permits me my own defence." (12)
The Right Inherited from England
The right to arms that Canadians inherited from England had been set out first in the English Declaration of Rights of 1689, and then had been expounded by William Blackstone in his authoritative Commentaries on the Laws of England in the century prior to Canadian Confederation. Blackstone made clear that the English right was a personal, individual one, not a "right" belonging to any government or restricted to persons in governmental service. The English right could not have been a federalism provision, because while Canada was constituted as a Federalist nation, England lacked a federal structure; and the law as expounded by Blackstone did not condition the right on a subject's service in any militia.
The Declaration of Rights was a product of the English Revolution of 1688-1689 (commonly known as the Glorious Revolution). In 1660, a special "Convention" Parliament had restored the English monarchy by crowning Charles II, (13) and two statutes enacted under him provided background for the Declaration's provisions on arms. First was the Militia Act, enacted by the royalist Parliament in 1662. It authorized militia officers on their own warrants "to search for and seize all arms" (uncomfortably similar to the right to search without warrant now authorized by the new Firearms Act) of anyone they judged "dangerous to the peace of the kingdom," including through entering houses by force if necessary, the arms to be handed over to the militia and no judicial recourse being available. Charles II repeatedly used this power, (14) aided not only by the regular militia but also by a volunteer army that he had organized unilaterally, (15) and by a select militia of about 15,000 that he formed in 1666. (16) The second statute was the Game Act of 1671, which, in the name of protecting wildlife, was "the first law in English history that took from the majority of Englishmen the privilege of having firearms." (17) It outlawed possession of guns (not just their use in hunting) by anyone not among the few rich qualified to hunt game. (18) Until that time, there had been no question that an Englishman's "ancient rights and liberties" included the right to keep and bear arms.
Concerns escalated after the accession in 1685 of Charles's brother, King James II. He was openly Roman Catholic, at a time of sharp political distrust between England's Protestants and Catholics. (19) He disarmed the Protestant militia of Ireland by seizing their arms and placing them in government magazines, while returning the arms of Ireland's Roman Catholics. In England, he continued to use the militia to disarm persons of questioned loyalties, including through strictly enforcing the Game Act, although he ultimately preferred to undermine the militia (whose loyalty he questioned), by restricting musters. He also accelerated and expanded his brother's policy of purging opponents, and Protestants in general, from the militia's and army's officer corps, and geometrically enlarged the standing army. (20)
James II fled soon after William of Orange landed in England in late 1688 at the invitation of leading Englishmen. A Convention Parliament in early 1689 adopted the Declaration of Rights, which William and his wife Mary (James's daughter) accepted before Parliament proclaimed them King and Queen, and which the ensuing regular Parliament enacted as the Bill of Rights. (21)
The Declaration first listed twelve indictments of James II for having attempted to subvert "the laws and liberties of this kingdom," including:
E. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.
F. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.
Then, in a roughly parallel list of thirteen "ancient rights and liberties," the Declaration stated:
6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
7. That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
This seventh article is most relevant here, and it set out a personal right. Neither this article nor the parallel sixth indictment ties possession of arms to service in the militia, which the Declaration never mentions. The sixth indictment instead indicates that being "armed" and being "employed" by the government are distinct - a distinction confirmed by the historical context, which, as we have explained, included subjects being disarmed by the militia. Furthermore, the right belonged to "Subjects," not to any government, and these subjects were allowed arms "for their Defence." (22)
Critics of the individual-right view recognizing a Canadian right to keep and bear arms contend that the two concluding clauses of the seventh article - "suitable to their Conditions, and as allowed by Law" - so restricted the right that it was a dead letter. Among the restrictions to which these clauses referred was the Game Act, which literally, albeit likely not in practice, barred most subjects from owning firearms. (23) As Lois G. Schwoerer has argued: "English-men did not secure to 'ordinary citizens' the right to possess weapons. . . . Drafted by upper-class Protestants who had their own interests at heart, Article VII was a gun control measure." (24) The Declaration, therefore, the argument goes, could have had little relevance to a Canadian right to keep and bear arms.
But this argument regarding the scope of the right does not speak to the question that we consider here, which is whether the English right was a right of individuals, a right of government, or a right specifically connected with military service to the government. On that question, the answer is clear. Schwoerer herself recognizes that many articles of the Declaration "guaranteed rights to the individual," including the right "to bear arms (under certain restrictions)." (25) Class- and religion-based restrictions did not destroy the personal nature of the right, whatever its scope. The precedent for Canadians - and Americans - was an individual right.
In addition, that Article 7 of the Declaration (and the Bill) only recognized a right to possess arms "as allowed by Law" does not mean that it did not secure a true right. In England's constitutional tradition, particularly evident in the events surrounding the Declaration of Rights described above, formal English rights restricted only the Crown's prerogative, not the legislature's power, which was unrestricted. Thus, although Blackstone was able to explain many years after the English Revolution that a royal proclamation "for disarming any protestant subjects, will not bind," (26) the right to arms, like all other English rights, remained subject to revision or abolition by Parliament. (27) That is true not only for rights such as the right to keep and bear arms, but other rights included in the English Bill Of Rights such as "election of members of Parliament ought to be free"). Thus, while English Parliaments could extinguish rights by enactment of legislation - just as current Canadian Parliaments can extinguish most of the rights in the Charter of Rights and Freedoms by a simple majority vote - the fact that rights are extinguishable by government does not mean they are not true and existing rights in the English/Canadian context.
Finally, whatever the actual ability of ordinary English subjects to have arms for their defense in 1689, by the time of Canadian Confederation nearly two hundred years later, the right to bear arms extended to the entire English citizenry and those English citizens about to become Canadians at the act of confederation. In new game laws, particularly that of 1706, Parliament deleted guns from the list of implements that those not qualified to hunt game were prohibited from owning. (28) English appealate courts determined that Parliament had made this deletion "purposely." (29) Thus, notwithstanding the list's catch-all prohibition of "any other engines," they interpreted the deletion - together with the existence of "divers . . . lawful purposes" for which one might keep a gun, such as "for the defence of his house and family" - as protecting the right of individuals to keep guns even if they were not qualified to hunt game, so long as they did not hunt with them. (30) This interpretation of the 1706 game act was considered "settled and determined" by 1744, and in 1752 the Chief Justice of the King's Bench reaffirmed that it was "not to be imagined" that Parliament in that act had intended "to disarm all the people of England." (31) By 1780, London's Recorder - the city's legal adviser and the primary judge of its criminal court - in an opinion supporting the legality of the city's private armed associations formed for self-defense against riots, could announce as "most clear and undeniable" the "right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes," adding that "this right, which every Protestant most unquestionably possesses individually" also "may, and in many cases must, be exercised collectively," subject to certain restrictions. (32) Similarly, an English commentator in the early 1790's wrote that "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game." (33)
Blackstone's Commentaries, first published in 1765-1769, were for centuries the leading exposition of England's laws and constitution. In them, he confirmed that the English right to arms was an individual one and explained that it had grounds broader and deeper than the right that had been declared in the Revolution of 1688-1689.
In the first chapter of the first book, Blackstone detailed the "absolute rights of individuals," (34) that is, "such as appertain and belong to particular men, merely as individuals or single persons" and which "every man is entitled to enjoy, whether out of society or in it." (35) It was the purpose of law "to maintain and regulate" these rights in society, but "wanton and causeless restraint" was "a degree of tyranny." (36) He delineated three "principal or primary . . . rights of the people of England": "the right of personal security, the right of personal liberty, and the right of private property."
But Blackstone recognized that declaring these three primary rights would be "in vain" and a "dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment." He therefore identified five "auxiliary subordinate rights of the subject" - "outworks or barriers to protect and maintain" the principal rights. (37) The first two were maintaining the constitution of Parliament and clear limits on the King's prerogative. Because these were more properly issues of governmental structure, he postponed their discussion to later chapters. (38) The other three, however, were plainly individual rights: (a) the "right of every Englishman . . . of applying to the courts of justice for redress of injuries"; (b) the "right, appertaining to every individual . . . of petitioning the king, or either house of parliament, for the redress of grievances," so long as no "riot or tumult" resulted; and (c) the "right of the subject . . . of having arms for their defence suitable to their condition and degree, and such as are allowed by law." He noted that the latter two rights both had been recognized in the 1689 Bill of Rights. (39)
Blackstone explained the subject's right of having arms as "a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." (40) By tying the right to the natural - and thus individual and pre-political - right of self-defense, he recognized a deeper foundation than its declaration and enactment in 1689 and confirmed that the right existed independently of any bearing of arms in service to the militia, a subject that he did not mention in connection with the right. (41)
He returned to the right in concluding the first chapter. Again grouping together the last three auxiliary rights (suing, petitioning, and having arms), he explained that all were means for "the subjects of England" to "vindicate" the three primary rights "when actually violated or attacked." Thus, subjects were "entitled . . . to the right of having and using arms for self-preservation and defence." (42) By his repeated reference to "self-preservation" and his description of the right as including both "having and using" arms, Blackstone reiterated that the right had a personal aspect and was linked to self-defense - to the right to use one's "limbs . . . to protect himself from external injuries," which was part of the individual right of personal security. (43)
Finally, Blackstone's view of the right as belonging to individuals re-appears in his repeated disparagement of game laws as a pretext to undermine commoners' ability to use or have arms. He traced them to "slavery" imposed after the fall of the Roman Empire by invading generals, who sought to "keep the rustici or natives . . . in as low a condition as possible, and especially to prohibit them the use of arms." Thus, "we find, in the feudal constitutions, one and the same law prohibiting the rustici in general from carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game." (44) He denounced those arising in England after the Norman Conquest of 1066 as a "tyranny to the commons," (45) and thought their real rationale was an aristocratic desire to "disarm[ ] the bulk of the people." (46) He briefly described England's existing criminal game laws as confused and having a "questionable" nature, their "rational footing" being elusive. (47) But he approved hunting restrictions against trespassing (48) and did not criticize several other restrictions on the use and carrying of arms, where breaches of the peace were occuring. (49)
Thus, the right to arms that Canadians inherited from England was a right of individuals, and had deep roots by the time British colonists brought about Canadian confederation. It did not depend on service in any government militia, nor was it a federalism-related "right" of any government.
And that right to keep and bear arms exists for Canadians today, despite the ignorance of the media and some members of government who claim it does not exist, and who deride those who refer to this right as being confused as to which country they are in. It is a sad fact that our members of government, the media in particular, and the population in general of Canada have little or no knowledge of Canadian rights, their origins, their nature, their current extent - and perhaps worst of all, how tenuous the security of our individual rights is.
As we have seen, the right to keep and bear arms existed in Canada at the time of Confederation as the inhabitants of Canada at the time were British subjects. That right - and all the other rights stemming from the English Bill of Rights that we more readily embrace - were retained in Canada after confederation. The British North America Act stated that Canada would have a federalist style of government unlike Britain, but Canada would retain the British constitution and British rights and freedoms. That included the right to keep and bear arms, repeatedly confirmed over two centuries by English governments and courts, as noted above. When the Constitution Act was passed in 1982, s. 26 of the Charter was included, which states that the Charter shall not be construed as denying the existence of any other rights and freedoms that have existed in Canada. This section is usually brought to our attention in respect to historical aboriginal rights, but it includes the right to keep and bear arms as well.
In conclusion, Canadians still retain a right to keep and bear arms - a right grouped with all the other rights Canada adopted from England that have passed through to Canadians over the years. That right is extinguishable due to the supremacy of Parliament in our system of governance, but to this date no parliament has ever acted to pass legislation extinguishing that right. Furthermore, as pointed out by the Supreme Court of Canada in R v. Sparrow:
As noted by Blair J.A., academic commentary lends support to the conclusion that "existing" means "unextinguished" rather than exercisable at a certain time in history... Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it...We would conclude then that the Crown has failed to discharge its burden of proving extinguishment.
Given the current state of public fear and politics in Canada, it appears inevitable that the government will eventually specifically extinguish the right to bear arms for defense and the right to self defense itself, no doubt later followed by the removal of other individual rights deemed "unnecessary". Until that legislation is enacted, however, the right to keep and bear arms is if anything more an existing Canadian right than an American right.
1 2 Strange Rep. 1098, 1098 (applying 5 Ann., c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep. 1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case, but similar); id. at 1241 (defendant, arguing that "to charge only that he kept a gun is improper, for it includes every man that keeps a gun," and that guns are kept "for the defence of a man's house"); id. (Lee, C.J.) (words of statute "do not extend to prohibit a man from keeping a gun for his necessary defence"); id. (Probyn, J.) ("farmers are generally obliged to keep a gun, and are no more within the Act for doing so than they are for keeping a cabbage-net").
2 Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).
3 Wingfield v. Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).
4 King v. Silcot, 87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting 33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not specifically allege that defendant's income was insufficient when he kept the gun).
5 4 Blackstone at *182. The qualification to which Blackstone refers is a wealth requirement tied to the game laws, see id. at *174-75, which we discuss in Part III.A, below, and elsewhere.
6 4 Blackstone at *56; see id. (person barred from "keeping arms in his house"). See 1 W. & M., Sess. 1, c. 15, § 4 (1689) ("no papist . . . shall or may have or keep in his house, or elsewhere, or in the possession of any other person to his use, or at his disposition, any arms, weapons, gunpowder, or ammunition").
7 Johnson, Dictionary (unpaginated).
8 See id. (defining "bear" as to "carry as a burden," "convey or carry," "carry as a mark of authority" (such as a sword), "carry as a mark of distinction" (such as to "bear arms in a coat"), and "carry as in show").
9 "Legality of the London Military Foot-Association" (July 24, 1780), reprinted in William Blizard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59, 59 (London 1785) (emphasis omitted). Regarding this opinion, which was "of wide interest," Leon Radzinowicz, 4 A History of English Criminal Law 107 (1968), see id. at 107-10; Malcolm, To Keep and Bear at 133-34. Regarding the Recorder, see 1 Blackstone at *76; 3 id. at *80-81 n.i; id. at *334; John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1, 8, 17-19, 34-36 (1983).
10 James Burgh, Political Disquisitions, reprinted in part in 3 Founders' Const. at 126, 125; see Federalist No. 56 at 382 n.* (J. Madison); see also 2 Tucker's Blackstone at *245 n.7 (quoting Burgh's Disquisitions). In both passages, Burgh was loosely quoting Andrew Fletcher, a prominent member of the Scottish Parliament prior to union with England in 1707. See A Discourse of Government with relation to Militias (1698), reprinted in Andrew Fletcher, Political Works 21-22 (John Robertson ed., 1997); Speeches by a member of the Parliament, No. 7 (1703), reprinted in id. at 149-50. Regarding Fletcher and Burgh, see David Thomas Konig, The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms," 22 Law & Hist. Rev. 119, 125-26, 136-39 (2004).
11 1 Blackstone at *144. Blackstone also described the fundamental "right of personal security" as including protection against "loss of limb," so as to guard a man's ability "to protect himself from external injuries in a state of nature," and condemned any destruction of limbs as "a manifest breach of civil liberty," id. at *129, 130; and he set out the basic common-law rule of self-defense, "the primary law of nature," by which it is lawful for a person "forcibly attacked in his person or property . . . to repel force by force" without being liable for breach of the peace or a resulting homicide, 3 id. at *3-4. The importance of this right of self-defense was reinforced by the absence of any constitutional duty of government to defend citizens' lives, liberty, or property.
12 John Locke, Second Treatise of Government §§ 18-19, at 12-13 (Richard H. Cox ed., 1982) (1689); see also id. §§ 204-10, at 126-29 (similar). Blackstone and Locke disagreed on the exact scope of the right of self-defense. 4 Blackstone at *181-82; see also 1 id. at *251. Locke was, after Blackstone and Montesquieu, the writer whom American political writers of the Founding cited most. Malcolm, To Keep and Bear at 142 & 214 n.44. His thinking is particularly evident in the Declaration of Independence. See also 2 Tucker's Blackstone at *161 & n.25.
13 See 1 Blackstone at *151.
14 Malcolm, To Keep and Bear at 36, 38, 43, 45-48, 50-53, 85, 100, 115-16, 123; see also id. at 92-93, 95; Lois G. Schwoerer, The Declaration of Rights, 1689, at 76 (1981) ("Charles II had made effective use of" the militia acts "to try to snuff out political and religious dissent," disarming individuals and towns and confiscating weapons). He had begun doing so as soon as he assumed the throne. An interim act in 1661 approved his actions and provided indemnity to militiamen. 12 Car. II, c. 6, § 3 (favorably recognizing that "divers arms have been seized and houses searched for arms");
15 Malcolm, To Keep and Bear at 36-39.
16 Id. at 63. See also Schwoerer, Declaration at 75-76 (describing Charles II's actions, including disarmament, and noting rise of complaints from Commons beginning in 1668).
17 Malcolm, To Keep and Bear at 12; see id. at 69-76; Schwoerer, Declaration at 78 (describing it as "the most stringent and comprehensive of the game laws") (internal quotation marks omitted).
18 22 & 23 Car. II, c. 25, § 3 (providing that all who did not have estate "of the clear yearly value of one hundred pounds" per year were "not allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds . . . or other engines").
19 See 4 Blackstone at *55 (explaining various legal disabilities on certain Roman Catholics, including several dating from English Revolution or earlier, by stating that such persons "acknowledge a foreign power, superior to the sovereignty of the kingdom"); id. at *58 (hoping that "a time . . . should arrive" soon when it would be safe to "review and soften these rigorous edicts").
20 See Malcolm, To Keep and Bear at 95-106; Schwoerer, Declaration at 71-73, 75-76.
21 The Bill of Rights is at 1 W. & M., Sess. 2, c. 2 (1689). Its first three sections, except for the initial preamble, consist of the Declaration, see Schwoerer, Declaration at 295 (App. 1, reprinting Declaration), and it recounts the events of the Revolution. See also 1 W. & M., Sess. 1, c. 1, § 2 (1689) (noting presentation and acceptance of crown, and proclaiming Parliament to be regular from that date); id. c. 6 (establishing coronation oath); 1 Blackstone at *128, 152, 211-16, 245 (discussing events).
22 Similarly, the same Parliament enacted a law providing that a "papist or reputed papist" could "have or keep . . . such necessary weapons, as shall be allowed to him by order of the justices of the peace . . . for the defence of his house or person." 1 W. & M., Sess. 1, c. 15, § 4 (1689) (emphasis added).
23 See Malcolm, To Keep and Bear at 86-89 (noting effect of wealth qualification but also dearth of prosecutions merely for possession). Blackstone complained that there was "fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire." 4 Blackstone at *175. In addition, these clauses probably referred to two statutes from the 1540's restricting ownership and use of short handguns based on wealth, outlawing shot, and regulating the use of guns in cities or towns, see 33 Hen. VIII, c. 6 (1541); 2 & 3 Edw. VI, c. 14 (1548), and they may also have referred to the Militia Act, see Malcolm, To Keep and Bear at 120.
24 Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 59 (2000). She seems to misunderstand the individual-right view as requiring an unlimited right. See id. at 56, 60.
25 Schwoerer, Declaration at 283; see Malcolm, To Keep and Bear at 119-20. See also Jean L. De Lolme, 2 The Rise and Progress of the English Constitution 886 (A. J. Stephens ed., 1838) (1784) (Declaration "expressly ensured to individuals the right of [petition and] of being provided with arms for their own defence").
26 1 Blackstone at *271.
27 See Federalist No. 84, at 578-79 (A. Hamilton) (arguing "that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince," and "[s]uch . . . was the declaration of rights presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the bill of rights").
28 5 Ann., c. 14, § 3 (1706); see 4 & 5 W. & M., c. 23, § 3 (1693) (similar). Parliament also repealed the later of the two statutes of the 1540's mentioned in note 167, noting its desuetude. 6 & 7 Will. III, c. 13, § 3 (1695). Enforcement of the other was, at least in the 1600's, lax and selective. See Malcolm, To Keep and Bear at 80-81, 87. Efforts to revise the Militia Act failed, but the right in the Bill may have sufficed to restrain the King from disarming Protestants. See id. at 123-25; see also 1 Blackstone at *271; Schwoerer, Declaration at 75-78, 267, 283.
29 Rex v. Gardner, 87 Eng. Rep. 1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).
30 Wingfield v. Stratford, 96 Eng. Rep. 787, 787-88, Sayer Rep. 15 (K.B. 1752) (Lee, C.J., citing Rex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738)); Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744), respectively; Malcolm, To Keep and Bear at 128 (quoting commentator of early 1800's reaffirming rule of these cases). In addition, it appears that courts strictly interpreted indictments under the game laws. See King v. Silcot, 87 Eng. Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690) (reporter's note from 1793).
31 Mallock, 87 Eng. Rep. at 1374; Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).
32 "Legality of the London Military Foot-Association" (July 24, 1780), reprinted in William Blizard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59, 59-60 (1785) (italics omitted). The Recorder found it "a matter of some difficulty to define the precise limits and extent of the rights of the people of this realm to bear arms, and to instruct themselves in the use of them, collectively." Id. at 59. At the very least, he opined, such a group needed to (1) have a "lawful" "professed purpose and object," (2) "demean themselves in a peaceable and orderly manner" consistent with that purpose, (3) not assemble in numbers that "manifestly and greatly exceed" that purpose; and (4) not "act without the authority of the civil magistrate" except to suppress "sudden, violent, and felonious breaches of the peace." Id. at 62 (italics omitted). See also William Hawkins, 1 A Treatise on the Pleas of the Crown ch. 63, at 136, § 10 (1724; reprint 1972) (noting legality of person "arm[ing] himself to suppress dangerous Rioters, Rebels, or Enemies" and "endeavour[ing] to suppress or resist such Disturbers of the Peace or Quiet of the Realm"); id. ch. 65, at 161, § 21 (noting right to do so when assisting Justice of Peace against riot).
33 See William Blackstone, 2 Commentaries on the Laws of England *412 n.8 (William Draper Lewis ed., 1900) (reprinting annotation of Edward Christian). Christian's posthumous Blackstone was published in 1793-95, see Malcolm, To Keep and Bear at 134, 210. Although the law was clear, some questioned how much as a practical matter the revision of the game laws had benefited commoners.
34 1 Blackstone at *121; id. at *123, 124.
35 Id. at *123. He contrasted "relative" individual rights, "which are incident to [persons] as members of society, and standing in various relations to each other." Id.
36 Id. at *124-28.
37 1 Blackstone at *140-41.
38 See id. at *141.
39 Id. at *141, 143-44.
40 Id. at *144.
41 See also 4 id. at *55-58 (elsewhere describing prohibitions against certain Roman Catholics keeping arms as hopefully temporary suspensions of rights). He summarized the militia in Chapter 13, 1 id. at *412-13.
42 1 id. at *144.
43 Id. at *130. See id. at *134 (summarizing common law's special protection for "those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy").
44 2 id. at *412, 413.
45 4 id. at *416; see 2 id. at *415-16 (forest laws produced "the most horrid tyrannies and oppressions").
46 2 id. at *412. As an example, he cited a popular book, by a bishop (and thus lord), that praised banning "Peasants and Mechanics" from hunting game: "It was not at all for the public Good to suffer [them] . . . to run up and down the Woods and Forests, armed; which . . . draws them on to Robbery and Brigandage: Nor to permit the populace, in Towns and Cities, to have, and carry Arms at their pleasure; which would give opportunity and encouragement to Sedition, and Commotions." William Warburton, 1 The Alliance Between Church and State: Or, the Necessity and Equity of An Established Religion and a Test Law Demonstrated 324 (London 4th ed. 1766).
47 4 Blackstone at *174-75.
48 See 2 id. at *411-12 (approving as "natural" a ban on unauthorized hunting on private property); see 4 id. at *174 (being less critical of the "forest law," which simply prohibited hunting in the king's forests).
49 See 4 id. at *144 (unlawful hunting - being disguised and "armed with offensive weapons" in breach of peace and to terror of public); id. at *145 (affray (public fighting), including attack with or drawing of weapon on church grounds); id. at *148 (forcible entry or detainer, "such as is carried on and maintained with force, with violence, and unusual weapons"); id. at *149 ("riding or going armed, with dangerous or unusual weapons . . . by terrifying" the people); see also id. at *146-47 (riots, routs, unlawful assemblies, and tumultuous petitioning); id. at *168 (quasi-nuisance of "making, keeping, or carriage, of too large a quantity of gunpowder at one time or in one place or vehicle"); cf. id. at *182 (excusable homicide by misadventure, such as "where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man: for the act is lawful, and the effect is merely accidental"); 3 id. at *4 (noting limitation of self-defense to "resistance" that "does not exceed the bounds of mere defence and prevention").