Your Right to be Armed
Whatever happened to the right to keep and bear arms?
by RKBA
SRA Secretary Richard Law was invited to tease out the answer to this question in a presentation to the British Constitution Group’s conference in Sutton Coldfield on 1November 2014, and this summary is derived from his notes. Faithful readers of the Shooter’s Journal and of this blog may find some of the history familiar, but it remains as true and relevant as it ever was. We should add that Mr Law didn’t use these notes during his presentation, as the print was too small and the light wasn’t good enough to refer to them; and they’ve been lightly edited for publication here.
The short answer to the question is this: the right to keep and bear arms (RKBA) is hiding in plain sight, but to find where it’s hiding and to test whether it’s still real or not, one has to reach back through time to find its beginnings and then follow it to the present.
The dawn of English legislation—the root of what we have today—was originally compiled by King Alfred the Great (AD 849-899), as the Doom (pronounced Dome) Book. Alfred amalgamated several pre-existing Saxon codes of law from the earlier kingdoms and prefixed it with Mosaic Law from the Bible. Biblical law from the Pentateuch tends to be people-oriented, while the early Saxon codes were more concerned with property and inheritance.
Christians are familiar with the Ten Commandments, while Jews recognize a further 603, one of which, at Leviticus 19:15, says: Do not pervert justice; do not show partiality to the poor or favouritism to the great; but judge your neighbour fairly.
Every four-year-old understands the principles of fairness, articulated, often loudly, at that age by a simple phrase: “It’s not fair!”—and often enough they’re right.
King Alfred originated the requirement that the able-bodied men of his counties should turn out when he called them to defend the realm. It was an obligation, rather than a right, but it presumed a right.
Alfred made no legislative or financial provision to arm or train his men. When called upon, they had to turn up ready to go toe-to-toe with the Vikings/French/Irish/etc., so the obligation was both to be armed and to have trained ready for that eventuality. There was nothing in his law that would prevent the men turning out in response to a threat; either individually, or collectively as the militia, to meet any enemy with appropriate force, defensively. Clearly, no one could fulfil his obligation if he didn’t have the right to bear arms in the first place.
This concept survived the Norman invasion, as all William I won at Hastings was the Crown—the right to be recognized as successor to Edward the Confessor. That came with all the legislative baggage of the kingdom. The victorious knights who came with William to enforce his claim to the throne became a tier of government, and the obligation to turn out as necessary followed the top-down style of Norman-French governance. The king called the barons, and they called out their retainers.
The phrase ‘common law’ comes from Henry II (1133–89)’s drive to improve the judiciary in the 1160s. He sent out judges from his own court to the counties to hear matters, so that there was one law common to all the people, reflecting the fairness principle in Leviticus and becoming the proto–quarter sessions and circuits. The common law principles came out of cases being recorded, and judges regarding each other’s decisions as binding in similar cases—the principle known as stare decices.
This wasn’t, in Henry II’s time, the common law as we know it. There were still alternatives to the courts in the form of trial by ordeal and trial by combat, and court hearings did not necessarily trouble to hear evidence. Trial by ordeal was still in use in the witch hunts of the 1640s, and the right to silence that defendants had until Michael Howard’s tenure at the Home Office was actually an obligation until fairly recently.
King John’s Magna Carta in 1215 is sometimes regarded as the first Human Rights Act, although Alfred would probably want his Doom Book regarded as such. King John had a go at revoking Magna Carta the following year, and it was King Edward I who issued a statute reconfirming it in 1297.
So, the common law obligation has been there since before the Norman Conquest: it being a requirement for each man to arm himself as best he could afford (“suitable to his condition”) and to train in preparation for the call-out should it ever come. The time and effort weren’t wasted because, if the realm wasn’t in peril, there could and would be threats to the peace closer at hand.
Also, nobody should set out to take on the Vikings without having trained with the weapons beforehand. The obligation to train is best remembered from a recently repealed archaic law that made it a requirement for yeomen to practice archery on the village green on Sundays. The archers who went to France with Henry V put some 42 tons of arrows on the advancing French in less than fifteen minutes at Agincourt. Their descendants will repeat the performance at the 600th anniversary re-enactment next year.
The individual right to arms was legislated against by King James II (who used militia to enforce his laws, or more particularly to solve his tax-gathering problems). James’s abuses led to his gentle overthrow, and the Bill of Rights in 1689 restated the common law—among other things restoring to Protestants various rights that James had sought to curtail while not denying them to his fellow-Catholics.
The Pilgrim Fathers carried the Bill of Rights to America as the founding principles of their legislation. Their successors had run-ins with George III (1738–1820), who sought to curtail their rights and had a go at collecting their weapons up in lieu of taxes. His local agents failed on both counts because they were up against men who knew their Bible and their rights. And who were, of course, armed.
The United States Constitution was hastily drafted in the 1770s. Hence the need for the rather more leisurely series of amendments promulgated in 1791; and it’s their Second Amendment that muddles thinking somewhat by seemingly tying the individual right to arms inextricably to the militia concept. There are variations of the wording, depending on source, but the US National Archive has it as: 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.
Back in England, the individual right had been settled in 1689, and thereafter two Acts of Parliament sought to prevent the militia forming without having a direct threat to meet—the Unlawful Drilling Act, 1819, and the Public Order Act, 1936. But no one moved to prevent a spontaneous militia forming in defence of the realm in 1859 (volunteer rifle regiments, rifle clubs and the National Rifle Association, all in reaction to a possible invasion from France) and in 1939, when Essex men formed up as the Legion of Frontiersmen long before the Government called out the militia as Local Defence Volunteers, later renamed the Home Guard.
In 1870, the Gun Licensing Act taxed the volunteers and other gun owners in the sum of ten shillings a year each: to be paid unless you held a licence to kill game, which was another tax, or benefitted from an exemption. The 1903 Pistols Act was likewise a tax. You needed only one of these three licences to have a gun beyond the confines of your home, and only then if not exempted.
The government separated shooting clubs from rifle regiments in 1908 with the formation of the Territorial Army. After that, the clubs continued with charitable status for training men in peacetime for the defence of the realm in wartime, until service rifles were ‘prohibited’ in the 1980s, and club charitable status was revoked in the 1990s. Both by the same politician, as it happens: Douglas Hogg (Conservative, Grantham), who left Parliament in 2010 with a moat kept clean at taxpayers’ expense.
Government was generally positive about the possession of rifles by the public, certainly from 1859 on, after they got caught napping and the defence of the realm really was in the hands of the people who lived here; that positive attitude carried through until the Great War and the call-out of the citizen’s army in 1915.
The problem the government had after that was the Irish rebellion in 1916, appallingly handled; combine that with the Russian revolution and a world war which ended with four empires collapsed, twenty-seven royal families redundant or murdered; and all those new, bankrupt countries with inexperienced political leaders and a surfeit of weapons.
The government asked Sir Ernley Blackwell to consider the problem of how to prevent European war surplus being sold off to wannabe rebels in countries like Afghanistan and Ireland. He decided the best thing to do was to ignore the question and crack down on the domestic market, particularly on pistols, and his report became the basis for the Firearms Act, 1920.
Meanwhile, the government had given away captured German rifles, machine guns and field artillery to the public as inducements to buy war bonds. Servicemen returned from foreign battlefields with souvenirs could keep them, and they got a pay off—known as the Dole—of £1; or £2 if they handed the great coat in.The land fit for heroes was clearly nervous about them returning. This combination of events and the Liberal government’s reactive policies help explain why the Liberals became unelectable after 1918.
Commander Kenworthy asked the Home Secretary during the debate if the 1920 Bill affected the right to defence and was told it didn’t. The 1920 Act wasn’t retrospective and contained a lot of exempted occupations. Its intention was to limit the acquisition of firearms, and more particularly of ammunition, to those whom they deemed friends of the government.
The step change came in the 1930s, probably in reaction to developments in the United States, where the prohibition on the manufacture and sale of alcoholic beverages had led to organized crime and a lot of gunfights. The Federal Government passed the Gun Control Act of 1934, which imposed a transfer tax of $200 on machine guns and silencers. Individual states and cities had passed laws before that; Texas banned concealed carry in 1892 and New York prohibited carrying handguns in public places in 1911.
The other reasoning was pragmatic. While you didn’t need a firearm certificate in the UK to possess a firearm for defence, it was and is a handy thing to have when you want to buy ammunition. So having a firearm certificate became worthwhile credential for people who used their firearms a lot.
The Bodkin Committee (which reported in 1934) heard evidence that machine guns had no sporting application against deer, and the subsequent (1937) firearms act created a ‘prohibited weapons’ category, to possess any of which one had to obtain Defence Council authority. This wasn’t a tax. It became Section 5 of the 1968 Act, and applications for such authority are—to this day—free. The issuing authority, which mostly seems to do its best to avoid doing its job, became the Home Office in 1973.
The Prevention of Crime Act, 1953, led to police forces advising people who had firearm certificates for arms they kept for defence, that ‘defence’ was no longer a good reason for possessing a firearm on certificate. Some people changed their good reason—target practice or pest control; others handed their guns in; and some took them off ticket and kept them for defence. The seismic change in government policy—at a time when Winston Churchill was Prime Minister—seems to have come about in reaction to the nuclear bomb.
In 1938, dying Prime Minister Chamberlain went to Germany and returned with Hitler’s autograph on a piece of paper, which he hailed as ‘peace in our time’. He knew perfectly well that he was lying; what he bought was time, during which the Chain Home radar stations were completed, the Observer Corps recruited and trained, conscription started, gas masks issued and Anderson shelters supplied to such of the urban public who had gardens to put them in, and the RAF took delivery of eight-gun monoplane fighter aircraft. So when war came in 1939, Britain had done as much as could have been done to prepare for it.
In 1953, Britain could not afford to do anything to protect the public in the event of an atomic war, so they opted for doing nothing. The assumption was that an exchange of missiles would not be followed up by boots on the ground. The Russians would not invade the UK after polluting it with radiation. War was thus assumed to be a short-term affair, after which government’s problems would all be coming from erstwhile voters.
The (post-nuclear) war-game scenario was that roving bands of heavily-armed and probably rather peeved citizens would appear outside the government bunkers. The scenario never saw them as the voters the government had let down so badly: it saw them only as the problem. So, one solution was to make it harder for these roving bands of common-law militia to get weapons, hence the new policy in 1954: after which firearm certificates would be issued only for possession of firearms for sporting purposes.
Richard Law did some research in the 1980s and could find no evidence that Winston Churchill had ever held a firearm certificate. Churchill wasn’t into shooting as a sport, but he certainly kept firearms for defence, notably a Colt M1911, which was last seen on display in the underground Cabinet Rooms museum in Whitehall. From 1920 until the late 1980s, Scotland Yard recorded details of firearms on certificates in their area on a card index in serial number order. That Colt didn’t have a card.
Following the murder of three London policemen in 1966 by Harry Roberts (just recently released from prison), Home Secretary Roy Jenkins rushed in shot gun certificates, after which the Firearms Act, 1968, was passed as an Act of consolidation. The Home Office commissioned (Sir) John McKay to report on firearms matters. McKay recommended a crackdown on the sporting public and what they used, and most of his recommendations eventually became the Firearms (Amendment) Act 1988, barring most ‘military’–type weapons from civilian sport.
We note at this point that all the restrictions from 1920 onwards relate to firearms used for sporting purposes, and the earlier ‘restrictions’ were all taxes.
In 1998, Mike Burke applied to the Home Office for a Section 5 authority for some prohibited weapon or other. He was refused as a matter of policy and appealed to the High Court, which in turn refused his appeal on the grounds that the Firearms Act, 1968, by implication repealed the Bill of Rights. (FC3 98/7400/3)
In 2002, in the Metric Martyrs case (CO/3308/2001, Thorburn v Sunderland City Council), Lord Justice Laws said that there were ordinary statutes and constitutional ones, and an ordinary statute could not repeal a constitutional one merely by implication. The way to amend constitutional statutes was for a new act to say that that is what it is doing on its face.
Taken together, Burke’s dismissed appeal and the Metric Martyrs case agree that the Bill of Rights has not been amended. The Firearms Acts are relevant to and control sporting guns, not military, militia or personal defence ones. Law, with Peter Brookesmith, set out this train of thought in the book Does the Trigger Pull the Finger (Spitfire 2011). Nobody has challenged what the book says as incorrect. The book also sets out a solution to the various problems the government has created for itself and us.
Currently, the only people regularly benefitting from your common law rights are cops and robbers. Cops because they have always carried firearms under the common law, exercising their (and your) right to be capable of defending themselves; and bad guys because, the anecdotal evidence is, when they claim that a firearm in their possession is for their own defence, they are not charged. The police don’t want to test the common law defence in court, and there are already several precedents confirming that your rights remain untroubled by legislation since the right was re-affirmed in 1689.
In 2008, the United States Supreme Court heard District of Columbia v Heller. This case came about because Washington DC had banned handguns to virtually all its residents, except of course cops and robbers, and the few people who did have permission [sic] to keep a gun at home had to keep it dismantled and unserviceable, in which case it could not be used in the event of a home invasion or police raid.
This turned DC into the murder capital of the United States: statistically the most dangerous place on Earth outside of some war zones. Mr Heller sought to overturn DC’s handgun ban and succeeded because the Supreme Court held that the city’s law infringed Heller’s Second-Amendment rights. The court recognized the right to keep and bear arms as an individual one. DC’s problem was that while the Constitution did not prevent them setting qualifications or taxes on the right, their law prevented the exercise of it altogether, and that was unconstitutional.
The outcome was that DC had to revise its laws and create a carry permit law—thus following many other states in the past twenty years—so that its citizens could be armed for their defence as necessary. The increase in armed citizens, real or imagined, is certainly reflected in the downward trend of crime statistics in America.
Reading between the UK’s lines, we note that our Home Office treads a delicate path; in declining applications to register weapons for defence as a matter of policy, they are actually saying that you don’t need one for the purpose.
But it seems to be the position that the law never has impeded the possession of arms for defence, so a Section 5 application is redundant. But if you make one and get turned down, it would not subsequently be possible for the police to prosecute you for not having one without charging the Home Secretary with complicity, unless the refusal was for some weighty and lawful matter and not issued as a matter of policy.
In 2014, and after several false starts, the Scottish Government published a bill to create an air weapons certificate. In announcing it, Kenny MacAskill said that there was no right to bear arms in modern Scotland.
We asked the question about implied repeal in modern Scotland, and they quoted the Metric Martyrs case back at us in a letter dated 17 September 2014; in effect, this is the argument from our book Does the Trigger Pull the Finger? So, either they’ve read our book and agree with us, or they’ve read the law and come to the same conclusions as we did.
What they haven’t done, yet, is explain the attitude toward the RKBA of Kenny MacAskill—who has also avoided explaining to us, or to anyone, the lawful authority police in Scotland have for being routinely armed (a move made, possibly, because he’s in the process of reducing the drink-drive limit in Scotland in time for Christmas). The Scottish air weapons bill, if passed as drafted, violates the Scotland Act, the Human Rights Act, the European Convention on Human Rights, the Bill of Rights and the Claim of Right, and thus the Treaty of Union and the Firearms Act, 1968, as amended, to name but a few.
So there it is. The Bill of Rights reasserts your common law right and obligation to arm yourself as best you can afford and to be prepared. It cannot be repealed by implication, according to Lord Justice Laws, and no attempt has been made to put your rights asunder overtly. The right (and obligation to train) you’ve had for over a thousand years is still there, hiding in plain sight.
This is an old debate. It is indeed true that in both Germanic and Classical law (the laws of the Greek city states and the Roman Republic – before the rise of the Empire) that the right to keep and bear arms was the mark of a free man (as opposed to a slave or a serf), and the Norman Conquest did not change this (at least not in law). Indeed Henry the 1st (who married a direct descendant of Alfred the Great – many Norman nobles married Anglo Saxon heiresses, almost as if they did not want the words “usurper” or “thief” whispered behind their backs) called upon the English to fight for him against his elder brothers – without the support of the English, Henry (the youngest son of William the Bastard) would not have remained King, and he issued a Declaration in 1100 (more than a century before the Great Charta of 1215) promising to uphold the principles of the English law, even his father had sworn to do so (although William broke his oath almost as soon as he swore it).
There were many efforts by the government to control weaponry, especially in the gun power age. But there was always a school of thought that held that such efforts were unlawful – that the powers of the King-in-Parliament were not unlimited, that certain principles of law could not be violated by the King – or by Parliament. “Dr Bonham’s case” in the time of Chief Justice Sir Edward Cook is rightly famous – when the Chief Justice ruled that neither the King or Parliament could declare not having a piece of paper (a “license” to engage in the trade of medicine) a “crime” punishable by fines and imprisonment and, that the government (the Crown) could not sit in judgement over such a “crime”, not a crime at all, and then profit by collecting fines for a non-existent crime (i.e. something that the Common Law did not recognise as an aggression, a crime, at all) – the fines being shared between the Crown and the Royal College of medicine.
However, more directly relevant is Chief Justice Sir John Holt the Chief Justice in the period of the “Glorious Revolution”. If Sir John Holt is remembered at all today it is for his mockery of witchcraft charges (people forget how radical a departure from established practice that was – both Selden and Hales had assumed, taken for granted, that witchcraft was a real aggression – and, therefore, a real crime) and for his demand that defence council be allowed to the accused in treason trials – personally (as the presiding judge) acting as the protector of the accused from the bench. But at the time Sir John Holt was thought of primarily as a Constitutional lawyer – someone who was an expert on the powers, and the limits on the powers of the King and of Parliament.
Chief Justice Holt assumed (took it as established fact) that the powers of both King and Parliament were limited – that, for example, if Parliament passed a statute forcibly disarming the population this would be unlawful in England and Wales.
However, only a few years after the death of the generation of Sir John Holt, new legal doctrines became fashionable. Posing as a traditionalist (he never claimed to be changing the principles of law) Sir William Blackstone declared that Parliament could do anything it liked by statute. This doctrine caused absolute outrage in the American colonies (although establishment legal writers in America had long now adopted Blackstone, which would have led the generation of 1776 to tar and feather them, rather more than a ritual humiliation – one could die in this process) and may well have been the eventual cause of the American War of Independence. But in Britain the writings of Blackstone, couched as they were in moderate language and claiming to be entirely traditional, caused snores rather than outrage – after all Parliament was dominated by country gentlemen, property owners, it could be trusted.
Even as late as 1914 there was a massive “National Rifle Association” in Britain, some two million members, and a “Constitutional Club” network The universities might teach the legal doctrines of Sir William Blackstone or even of Jeremy Bentham (who dispensed with Blackstone’s traditional language and lip service to Natural Law – Natural Justice, and basically replaced the limited government ideas of the “Common Law of England” with the unlimited despotism of Thomas Hobbes), but most people still thought that the county has a “Constitution” and that the right and keep bear arms was a central part of it.
The idea that such thing as the English “Bill of Rights” was just an “Act of Parliament” “granting rights” (not recognising pre existing rights) that could be taken away by any subsequent Act of Parliament, was still alien – even in 1914. The universities might be teaching Maitland and other writers who assumed Blackstone to be correct – but the public had not “got the message” yet. Indeed there was “gun control” in New York City, since 1911 (there still is), not in London – “is the great Republic frightened of its own citizens?” mocked the British in relation to the United States. Yet now……….
Now all of the above is known to about one in a hundred people in this country – if that many. Any suggestion that the right to keep and bear arms was once widely accepted in this country would be me with shock or mocking laughter. As would the idea that their were any limits on the power of Parliament to loot property and order people about.
In case any Americans are smiling with contempt about all this……
Check what the “educated” elite think in your own country, The children who were hardworking at school – the students who do well at university, and get powerful positions. If there is a “Constitution” that the elite favour it is the principles of say the Soviet Constitution of 1936 (education, healthcare, housing, employment, art……) not the limited government principles of the United States Constitution or, for example, the Texas Constitution of 1876.
Natural law? Natural Justice? Property rights existing prior to government? The right to keep and bear arms? How “reactionary” – Thomas Hobbes (and so on) “refuted” all this centuries ago….. Why next you will be declaring that individuals have moral responsibility (real choice over) for their actions, whereas everyone (bar “stupid Rednecks”) know that “people” are just machines, and not real examples of A.I. either, who should be totally controlled for-their-own-happiness by the collective.
Clearly your conclusion was a tongue-in-cheek “thumb in the eye” to the postmodern individual, no? Ah, it appears so 🙂
Fascinating. Thank you.
Currently, the only people regularly benefitting from your common law rights are cops and robbers. Cops because they have always carried firearms under the common law, exercising their (and your) right to be capable of defending themselves; and bad guys because, the anecdotal evidence is, when they claim that a firearm in their possession is for their own defence, they are not charged.
I don’t think anyone gets away with carrying a gun by claiming it’s for self-defence.
You didn’t mention that the police can now enter your house without a warrant and without giving advance notice if they believe a legally-held firearm you own is not properly secured against theft.
Interesting and informative article.
What makes this hypothesis questionable is the Northern Ireland doesn’t have a pistol ban and FAC are issued with “self defence” as “good reason” (or maybe were, there have been various political pronouncements about putting a stop to this practise).
“In considering whether an applicant has a good reason for a firearm certificate for a personal
protection weapon (normally a handgun) the Chief Constable must be satisfied that there is a real
and immediate risk to his life from terrorists.”
ref http://dvc.org.uk/dunblane/ni.html
https://www.gov.uk/government/publications/guidance-on-northern-ireland-firearm-controls
In a slightly different context see also:
http://www.allaboutshipping.co.uk/2013/09/02/eos-receives-home-office-approval-for-section-5-of-firearms-act/
It would appear to me that requesting a Section 5 authority for a pistol and/or semi-auto rifle for self defence and using the government’s own terrorism fear mongering propaganda as your justification would be a viable strategy… at least for embarassing a few politicians and officials.
I also imagine that questioning the fact your human rights are at the whim of jumped up bureaucrat (the Chief Constable or HO official depending on where you are) with no meaningful methodology to challenge decisions is a avenue rich for debate, though more on ethical grounds rather than any hope of legal success.
Face it – we live in a police state and that state is determined to ensure that the mainstream populace is as disarmed as is practicably feasible.
http://rt.com/uk/217343-london-lone-wolf-police/
It would still, however, be humorous and interesting to produce something like a “radar-directed and driver-iApp-controlled trailer-borne machine-longbow …
Now, I wrote a long piece just now about this, but I have decided for the sake of this blog and our readers’ safety to delete it. You don’t know who is watching us these days. (well, you do, in fact.)
With regard to the distinction sometimes made between arms of a military type as distinct from sporting use, especially the recurring agitation in the US to ban “assault weapons,” mention should be made of the Miller case. American gun control advocates for decades trotted out this 1930s test of the law that placed onerous taxes on machine guns and short shotguns because the US Supreme Court upheld the constitutionality of Miller’s conviction for possessing a shotgun with too short a barrel in viollation of the statute.
There are scholars who contend the case might have been decided otherwise if Miller had been represented in the Supreme Court proceedings, but he was not. The Court based its reasoning on the idea that the class of weapons ownership of which was protected by the Second Amendment was comprised of weapons suitable for military use. And, the Court simply accepted the assertion of the Department of Justice that shotguns of the length of Miller’s had no military application. The truth, however, was that shotguns even shorter than Miller’s had been issued and used during WW1 where they were commonly called trench guns, and a few thousand of them were still in US Marine Corps armories.
A few points in clarification.
A propos dope peddlers (& others who may need to be armed in order to conduct an illegal trade in relative safety) not being prosecuted when found to be armed: we did say the evidence is anecdotal, the anecdotes in question coming from retired police officers. It would be nice to have some harder evidence than this. One’s guess would be that any such defensive weaponry would be confiscated on arrest, but no prosecution brought lest a knowledgeable counsel raise the question of the constitutional right in court—a cat that Government & Messrs Plod most certainly don’t want to see leap yowling out of their bag.
The common-law right to bear arms for defence of life, liberty, property & chastity is of course recognized tacitly by Government, as witness the arming of policemen (for they have no other authority), and it was Richard Law’s and my contention in Does the Trigger Pull the Finger? that some upright civil servant recognized this in drafting the 1920 Act, in calling firearm registration documents certificates. They couldn’t be called “licences” because that would imply a permission, and under the BoR 1689 that was already recognized as unnecessary. (The phrase “as allowed by law” in the BoR refers to the common law; it doesn’t mean “as allowed by the Firearms Acts that some paranoid clown will dream up in a few centuries’ time”.) Hence our further contention that only sporting arms require registration/certification. Of course that’s a trifle too logical for the more costive among our law makers and enforcers.
The real government (alias the Civil Service) naturally prefers to think one can pick & choose among the BoR’s provisions. The House of Commons library’s Standard Note SN/PC/0293 has this to say:
“The Bill of Rights is still in operation today, as recent debate on parliamentary privilege for example, has demonstrated. Article 9 protects Members’ rights of free speech in Parliament. However, many of the Bill’s original articles, while never formally repealed, are generally regarded as having been superseded by subsequent legislation. Laws may be obsolete but still unrepealed. For example, the article covering the right of protestant subjects to bear arms is generally considered to fall into this category, although there have been attempts to challenge this from time to time (most recently during the passage of the Firearms (Amendment) Bill of 1996-97).” “Obsolete”, that is, because we say so, and we don’t like the idea that the citizenry might want to look after themselves. Or exercise what Blackstone called “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
The clause in the Bill of Rights (BoR) –
“That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”
…is to address one of the grievances listed earlier in the document –
“By causing several good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.”
The BoR is actually an affirmation of the common law right of the Subjects to have arms for their defence and not in any way applying limitation to only Protestants.
Reading the Statutes At Large contemporary to the Bill of Rights makes it clear that the “Assault Weapons” issue was a live one even then. Types of arms weren’t restricted though, what was restricted was stockpiling them to obvious purpose of arming a large body of men. Certain weapons of war were restricted by type though: war horses were a considered a controlled item. This is what is alluded to when the BoR states as a grievance, “when Papists were both Armed and Imployed contrary to Law.” The BoR isn’t saying that Papists have no right to self defence, that would be absurd and self contradictory in the context of the document.
In the modern context it would certainly be the case that having a couple of pistols for self defence and a couple of rifles, including semi automatic, wouldn’t be stockpiling arms for an insurrection and would be reasonable as a self defence measure (by reference to countries where weapons are used by civilians for self defence).
Regulating arms used for sporting purposes has a long history, mainly to do with trying to restrict poaching on Crown land.
It’s a shame that the authors of the BoR didn’t make their meaning more plain. If you read the document, and contemporary legal documents and commentary, it’s quite clear that it is a deliberate attempt to mislead to claim that the BoR only refers to a right of Protestants to keep and bear arms for self defence. Additionally it’s clear that the writers of BoR are appealing to Law existing outside of the actions of the King (and therefore in the modern day, Parliament, in clear opposition to the Doctrine of the Sovereignty of Parliament). Further the “as allowed by Law” is permissive, not restrictive as usually characterised by modern legal authorities. It’s a plain and obvious lie to purport that “as *allowed* by law” justifies Parliament being able to deny self defence weapons!
Any modern legal authority who characterises the BoR differently is either very stupid (unlikely) or deliberately lying.
As Ian B says, however, being right in Law won’t protect us from the men with the political power… and the guns to back it up.
I agree. The constitution of any country, constitutional documents notwithstanding, is whatever the ruling class agrees it is and can get away with.
This is not to say that legal arguments about the original meaning of the BoR and the new limitation of implied repeal are worthless. If enough people make enough noises of the right kind, what the ruling class can get away with will have changed. But legal argument must be part of a wider agitation.
I agree. We can demonstrate that their random assertions about their so-called law and authority are based on lies that directly contradict the things they appeal to.
It seems to me that the real story is that war powers from WW1 and WW2 have been (illegally, obviously) carried on in peace time and by sleight of hand claimed to be law.
We must also have a more comprehensive framework – the right to keep and bear arms is of relatively little utility unless “an Englishman’s home is his castle.” A whole other ball of wax…
Sean,
Let’s not forget jury nullification.
Regards, John Hurst.
Indeed not. Use it or lose it.
Peter, Re a confirmed Judgment which acknowleges the RKBA, here is a reference to Georiades from an entry on Archbold:
“8–10385
16 Possession of firearm with intent1 to injure
It is an offence2 for a person to have in his possession any firearm3 or ammunition4 with intent by means thereof to endanger life5, or to enable another person by means thereof to endanger life, whether any injury has been caused or not.
[Firearms Act 1968, s 16, as amended by the Criminal Damage Act 1971, Sch]
1 Since both limbs of s 16 are concerned with possession not supply, it is the state of mind of the possessor of the firearm or ammunition that must be considered; the intent required is a specific intent (R v Jones [1997] 2 WLR 792).
2 For prosecution and punishment, see Sch 6, post. See R v Bentham [1973] QB 357,[1972] 3 All ER 271; and R v El-Hakkaoui [1975] 2 All ER 146, 139 JP 467.
3 Defined in s 57(1), post.
4 Defined in s 57(2), post.
5 It will not be an offence if he intended suicide, and not to endanger the life of another; see R v Norton and commentary thereon at [1977] Crim LR 478. Lawful self-defence constitutes a defence to a charge under this section (R v Georgiades [1989] 1 WLR 759, 89 Cr App Rep 206, CA)…..”.
Another confirmation is A-G’s Reference No.2 of 1983:
“In our judgment a defendant is not left in the paradoxical position of being able to justify acts carried out in self-defence but not acts immediately preparatory to it. There is no warrant for the submission on behalf of the Attorney General that acts of self- defence will only avail a defendant when they have been done spontaneously. There is no question of a person in danger of attack ‘writing his own immunity’ for violent future acts of his. He is not confined for his remedy to calling in the police or boarding up his premises.
He may still arm himself for his own protection, if the exigency arises, although in so doing he may commit other offences. That he may be guilty of other offences will avoid the risk of anarchy contemplated by the reference. It is also to be noted that although a person may ‘make’ a petrol bomb with a lawful object, nevertheless, if he remains in possession of it after the threat has passed which made his object lawful, it may cease to be so. It will only be very rarely that circumstances will exist where the manufacture or possession of petrol bombs can be for a lawful object…”.
As you no doubt know, the pupose of an arrest is to initiate a prosecution. If there is no grounds for a prosecution there is no power of arrest. That may explan the absence of test cases.
Regards, John Hurst.
John, Well done! Great Research
The basic thing about the law for me is that it has no objective meaning. It is a creature of language, and as such it means whatever those with the power to impose it either believe it to mean, or prefer to beleive it to mean. Laws mean no more than that, even “constitutional” ones. It was arguments about this some years ago- specifically regarding what the American Constitution means, or is “meant to mean”- that started me down the road to a subjectivist understanding of the reality of humans live in.
If the man holding a gun to your head tells you that he is empowered to pull the trigger, and if the courts and politicians and others in power insist that he has, no argument about what the words mean matters a fig. The constitutional and legal arrangements under which we live are those which exist in the minds of the powerful. You can stand in a court room with a copy of the English Bill Of Rights, and no matter how much you argue, if the judge does not wish it to mean what you wish it to mean, your opinion will be worthless.
Ian B is correct, of course. Also, see my comment about mischaracterising the meaning of the Bill of Rights statement about Protestants and arms.
Your going the right path. Light and Dark is relative to the person it belongs to and no one else can figure it out but themselves or themself? (Is there even such a word?)
Look at Dumbledore (with too many titles to name) VS Voldermort aka Tom Riddle which JK Rowling was clearly biased to the first but fanfiction takes a creative spin and often starts asking questions which the answers lead to more questions which leads to more answers all the way down the union chain.
John Pate raises the matter of Northern Ireland. Of course there the government is not engaged in “fear mongering terrorist propaganda” (actually it is not here either – the Islamic threat is very real on this island – indeed in many places in the world), the government is actually pretending that there is no real problem in Ulster, just a few “dissidents”. In reality Sinn Fein remains as committed as always to driving out or wiping out the Unionist population (Protestant or Catholic – for there have always been Catholic Unionists), No Unionist that I know in Ulster expects the current situation to be anything other than temporary truce – they certainly have no plans to give up their weapons (whatever the regulations are) or even letting the authorities know they are armed.
An interesting situation – to be loyal to a country (the United Kingdom), but to despise (utterly despise) its government. That has been the Unionist position for more than a century.
Also an interesting American connection (although often forgotten). The people Americans call “Red Necks” (famous for their support for the Second Amendment – in very practical ways) used to be called “Scots Irish” or “Ulster Scots” (rather different from the “Scottish Scots” – due to the religious organisational changes forced on the Church of Scotland in the early 1700s, yes it still matters) – for they are indeed (either by “blood” of by culture) Ulstermen. They include, for example, “the Southerners who did not own slaves” – who were split between those who fought for the Confederacy and those who fought against it – the hardest fighters on BOTH sides. The longest held Congressional Districts for the Republican Party are in the South (again as Michael Caine would say “not many people know that”) – in Eastern Tennessee.
No one is going to be disarming these people in a hurry.
It’s sure been one looooooooooooooong (temporary) truce.
The law did indeed accept the right of Roman Catholics to own firearms in England and Wales (I presume it did in Scotland – but I have not checked).
In Ireland things were different due to the “Penal Laws” (statutes) of the period of Queen Anne, Although Edmund Burke did have these and all the other penal laws (bar the ones concerning Parliament) repealed – indeed he broke with his first patron, Hamilton, because the man would not accept that fundamental liberties (natural rights – natural justice) extended to Roman Catholics. It is often forgotten that many of the Penal Laws (although not all of them) also applied to dissenting Protestants (non Anglicans – non Church of Ireland people), which is why many of these people went to the American colonies – a century before many of the Catholic Irish did.
The cultural split (going back to that ending of local choice of Minister of religion in the Church of Scotland – but not in Ireland, in the time of Queen Anne) between Scots Scots and Ulster Scots (in many ways the same people – the Scots being an Irish tribe and the distance between the nearest islands being little more than a long jump…..) was made manifest in 1776 when many (although not all) of the Scots Scots remained loyal to the government – and the Ulster Scots rose in revolt along with many, by no means all, of the English in America.
Fighters like Andrew Jackson (two hundred years since the Battle of New Orleans in 1815 – although Jackson has been fighting since he was a young boy when a British officer cut his face open with a sabre for not shining his boots – Andy cried and his mother flogged him without mercy screaming “boys do not cry, boys FIGHT”), or John Hancock, or all the others – Daniel Boone, David Crockett , Kit Carson and on and on (right to those Generals in World War II that actually liked fighting).
The culture can be summed up in the words of old Senator “Bullion” (passionate hater of paper money) Benton…..
“President Jackson – oh yes I remember him, I shot him once, a fine man”.
Trying to kill someone does not mean you dislike them – it can be the situation…..
can i get a copy of this p-lease
Reblogged this on rudolfwordpressblog.
No NO AND NO! Too many people (and I’m one of them) are mentally disabled and physically putting handguns in our hands would spell disaster! Do y’all want school shootings in your neck of the woods? Do y’all want church shootings for the few who still go to church to be at peace?
At least the British and I envy them don’t have to live in fear over someone going into a night club and shut out people they hate. Politics in America are totally extreme right now and it would spill into Britain.
America is trying too much to imitate Europe and failing from health care to shrinking sizes of appliances/homes.etc and the whole gambit of how evil air con is while those same people who spout it off use it themselves religiously in their expensive smart grid apartments with 2,000$ I-Mac and I-phones totally unclicked from reality.
Edit: I meant shoot out. When I’m stressed I slur words.
Sorry, I must admit that I did not read the article, only the title, and saw that you were on wordpress. The RIGHT of self defense is given to us by our creator as a natural right. As an American, we still must struggle along to stem the constant push of the commies to dissaude us from our apparently, to them, “strange” belief in Jesus and our God given right to defend ourselves. I don’t know what the answer is for you. Keep on fighting, you have friends in America! God bless England and God bless America!!!
So why has no one asserted the right at high court?
Problem is everyday somebody in the states gets shot by an idiot either by accident or for a bloody stupid reason
Why is it we are told not to judge all Muslims because of one act of terrorism committed by a Muslim extremist but yet all lawful UK gun owners were punished for the act of one lunatic
“The United States Constitution was hastily drafted in the 1770s. Hence the need for the rather more leisurely series of amendments promulgated in 1791; and it’s their Second Amendment that muddles thinking somewhat by seemingly tying the individual right to arms inextricably to the militia concept. There are variations of the wording, depending on source, but the US National Archive has it as: 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.“
Despite what the enrolled original Joint Resolution of the Bill of Rights on display in the Rotunda of the National Archives – which contains all twelve proposed Amendments – reads as “Article the fourth… 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”, the copies forwarded to the states’ legislatures for ratification were worded and punctuated as follows:
“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.”
(The text as ratified by the states and authenticated by Secretary of State Thomas Jefferson.)
Ergo, the ONLY legal, actually-ratified and -passed version of the Second Amendment is the single comma version.
And as to the “tying the individual right to arms inextricably to the militia concept”:
“The Amendment’s prefatory clause [‘A well regulated Militia being necessary to the security of a free State,’] announces a purpose, but does not limit or expand the scope of the second part, the operative clause [‘the right of the people to keep and bear Arms shall not be infringed.’].
–District of Columbia v. Heller, 554 U.S. 570 (2008), Justice Antonin Scalia—Majority Opinion
“The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”
–Ibid.
Moreover:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
–Id.
“Alfred would probably want his Doom Book” What the hell’s this?
Asser never wrote anything called a ”Doom Book”?
William I ordered a huge series of surveys from 1085-6 which the English layman called the Domesday Book.
[…] English law for centuries and is sometimes regarded as the first “Human Rights Act”[2]libertarianism.uk: The British Constitution and the Right to Keep and Bear Arms for Defence and went on to heavily influence how the “Founding Fathers” wrote the Constitution of […]