Open carry I voted protest pennsylvania
(AP Photo/Matt Rourke, File)

By MarkPA

Much is made of the 1328 Statute of Northampton to minimize or even to deny the right to bear arms. Northampton seems to be the core of the 9th Circuit’s opinion in Young v Hawaii.  Northampton is sited by the State of New York in NYSR&PA v Bruen. The latest I’ve seen is a short essay by Jonah Skolnic last week at the Duke Center for Firearms Law’s blog. But I am unconvinced that an English royal decree issued nearly 700 years ago should so influence our contemporary interpretation of the Second Amendment.

So where is the hook? How is it that anything that precedes the ratification of the Second Amendment should color its interpretation?

The amendment does nearly nothing to define the right to keep and bear arms. That right is presupposed to exist and is understood. And so there must be something preceding ratification which serves to illuminate the scope, the metes and bounds of that right.

The 9th Circuit and New York State would have us believe that it’s the 700 year old Statute of Northampton. Skolnic quotes Northampton in part as follows:

no man great nor small, of what condition soever he be, except the king’s servants in his presence…come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers

Skolnic’s contribution to the discussion is to draw our attention to Edward Coke’s and Henry de Bracton’s commentary on Northampton.

De Bracton understood the term weapon very broadly, explaining that armed force existed ‘not only if one comes with weapons, but truly also we designate those armed, who have something with which they are able to harm.’ De Bracton’s interpretation is that the mere presence of any weapon was considered armed force, regardless of the type of weapon at hand. Indeed, de Bracton takes this a step further opining that ‘if someone should come without arms and in a brawl itself picks up wood, sticks, and stones, such things it is said armed force.” De Bracton thus suggests that nearly anything could be considered a weapon and be used for armed force, and Coke by extension in quoting de Bracton suggests that the Statute of Northampton’s jurisdiction is not limited to certain strange or unusual weapons.

Skolnic concludes . . .

Barring the exception of the King’s servants and officials specifically stated in the Statute, the Statute and its enforcement made no exception for any types of armed force to be permissible, nor did it make any distinction between the motives of the user of armed force.

What, then, should we make of this reading of the Second Amendment in light of Northampton? The 9th Circuit, New York State, and Skolnic would have us to believe that the Second Amendment’s rright to bear arms means nothing more than two things:

  1. the privilege by the King’s license (servants, ministers, and the like); and,
  2. “. . . upon a cry made for arms to keep the peace, and the same in such places where such acts happen . . . “

That is to say, what the ratifying generation understood of the right to bear arms meant the right only exists

  1. by the King’s license, or
  2. at the moment and place of “hue and cry”, i.e., on the occasion of an actual emergency (but not in anticipation of the possibility of confrontation).

Does this make sense?

The original Constitution and the Bill of Rights enumerates various rights, privileges, and immunities without spelling them out in detail. E.g., the First Amendment speaks of, “an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government” without spelling out their scope.  

Should we understand the limits of these rights to be circumscribed by the law that prevailed in England before the Founding or by the laws and practices in colonial America up to that time? Should the laws and practices of the nascent 13 states which ratified the Constitution and Amendments matter? What is the rule of interpretation in such cases?

Perhaps it’s clear that the Establishment Clause precludes Congress from declaring a state religion. However, whatever the right to the free exercise of religion was in England in 1776 carries forward to the present. Perhaps the defense of truth to a charge of liable is not a part of the freedom of speech secured by the First Amendment.  

Is this so? Or, would such a rule of interpretation substantially re-write our rights, privileges and immunities to an unrecognizable degree? One which would have been unfathomable to the ratifying generation as well as to ourselves. Would we be on much surer footing if we looked to the laws and practices of the original 13 states preceding the ratification of the Bill of Rights?

The 9th Circuit and others make much of statutes and cases regulating the bearing of arms both before and after Independence. Let’s acknowledge that these statutes and cases exist and they meant what they said as applied in such cases.

Does any state or municipal legislature or judge have the power to fix to our day the meaning of our Constitution and its Amendments? Does the town of Tombstone’s ordnance barring the carrying arms within its jurisdiction constrain the Roberts Court today?

Plenty of others have already opined that Northampton constrained arms bearing only “in affray of the peace.”  I won’t wade into the “affray” issue here. But I have not seen others commenting on Northampton’s prohibition against “…rid[ing] by night nor by day, in fairs, markets, or in the presence of the justices or other ministers.”

The qualifications here seem significant. They might pertain to Scalia’s “sensitive places” in Heller. Northampton didn’t forbid riding by night or by day upon a public highway, or on a street or footpath. It spoke exclusively of “fairs, markets, or in the presence of the justices or other ministers.” Why those limits?

Perhaps it was conventional for the King’s men-at-arms to be posted in such places to be ready to keep the King’s peace. And so, the statute intended to constrain the right of self-preservation only in such places. I question whether even these particular proscriptions carry any weight beyond Independence, above. But whatever weight they may carry certainly can’t be readily extrapolated to cover the entirety of America’s highways, streets and sidewalks.

Others regularly opine on the statutory phrase “dangerous and unusual weapons.” Was this phrase intended to mean both dangerous AND unusual? Or to mean: either dangerous OR unusual? It’s hard to figure this out absent a richer context. Here, Coke and de Bracton seem to make a useful contribution:

All things by which individual people are able to harm are accepted by the name of weapons: but if someone should come without arms and in a brawl itself pick up wood, sticks and stones, such things it is said armed force; If someone comes with arms, but puts them down without using them, armed force is said to have happened; Even the threat of arms suffices as it seems to be force with arms. Agreeing with that of the poet, ‘And now fire and rocks fly, fury provides weapons’

Carrying this train of thought to its logical conclusion, whenever there is a disparity of force and the intention to use such force, such disparity may be “accepted by the name of weapons.”

Under such circumstances, does it make any sense to regulate classes of weapons according to their degree of dangerousness or common/uncommon use? Does this notion of “dangerous and unusual weapons” require us to draw some line between a derringer and 6-shot revolver? Between short folding-knife blades and those longer than four inches? Or, would our legislatures and courts be on firmer ground in simply distinguishing between the use of deadly force and less-than-deadly force?

In contemporary America more assaults and homicides are committed with fists, arms and feet than by rifles or shotguns.

In the end, Skolnic, the 9th Circuit, and New York State make much ado about Northampton, far more than the ratifying generation could have contemplated. And they do it in a desperate search for ways to preserve and protect current gun control laws that many think are endangered by the current Court.

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61 COMMENTS

  1. Forsooth varlet! We don’t live in 14th century Britain. Or have a king,landed gentry or church authority. This is AMERICA where we kicked out the English. And should remove circuit court criminals. Discuss amongst thyselves…

  2. And how did the Founders react to the enforcers of this decree, and every law passed without their consent? Rifles, muskets, bayonets, and boiling pitch. I wholeheartedly concur with that precedent.

    Should that reaction be interpreted as wholesale acceptance of the system they were fighting? I’m thinking “no”.

    Even if, contrary to all facts and logic, one answered “yes” to that question, he would have to consider the very different attitude toward arms put forth in Britain’s 1689 Bill of Rights.

  3. Wow, how stupid can you get? I think old English law also applied to speaking badly of the king. Are we going to now say free speech is limited and you cannot speak badly of elected officials? I am sure many people, including the press, violated this while Trump was president.

    • Speak badly of the deep state and they will come after you in any way they can, look at what the corrupt FBI did to Michael Flynn. They want all you peons/perpetrators to know that if they can do that to people who are that connected and powerful, you don’t stand a chance.

      If we don’t replace most of the establishment Republicans and nearly all of the Democrats fairly soon the federal government agencies will swell to the point of destroying this country. I challenge you to name a single federal agency other than maybe the Border Patrol that doesn’t need to be cut by at least a third.

    • It did. My families first colonial ancestor’s wife was given 10 lashes at the whipping post for speaking out against the King of GB. This from records found.

  4. It just shows the extent red coat Gun Control Zealots will go to justify what History has Confirmed to be an agenda directly or indirectly rooted in racism and genocide. Gun Control zealots see themselves as above it all when the facts show they are the ones with a racist and nazi based agenda. Today’s red coats are no different than the pompous educated bozo who comes around with dog poo on their shoes and everyone can smell it but them.

  5. Great! That will be useful when we have a King. Despite the attempts of Obama and trump, we still have no King. Wake me up when we do.

    • Steve, your credibility is incredibly strained by trotting out the old Trump / king agenda. The closest thing to a dictator (if only a puppet of the ruling oligarchy) in the last century is Biden. Obama would take second place with his pen and phone and no need for Congress.

      Trump was pompous and often wrong, but any dictatorial intentions were driven out of a position of having to fight, single-handedly, against a corrupt media, a wasteful investigation based upon a known fabrication and a government full of insiders who seem to want nothing more than the status quo (both sides) because anything else would endanger their livelihoods.

  7. Unbelievable. But I guess that those that want to strip us of our rights will stoop to any low, regardless of its lack of application. Our founder were very clear in their intent and up until at least 1982, even our own Congress believed that the right to bear arms was inherent. Even sleepy Joe was part of that belief. Note the members of the Senate Subcommittee on the Constitution.

    https://guncite.com/journals/senrpt/senrpt.html

    Stickin’ hypocrites…

  8. The Statute of Northampton was issued by Edward III when he really wasn’t yet the King of England. It was one element of his effort to take control of England and Scotland, something that was very much in doubt when this was proclaimed.

    His father Edward II did die in 1327, but Edward III did not rule England until he captured and executed Roger de Mortimer on 19 October 1330. So the Statute of Northampton can only be considered a gambit.

  9. “Perhaps it’s clear that the Establishment Clause precludes Congress from declaring a state religion.”

    That should come in handy fighting the implementation in schools of the Leftist Scum’s new ‘religion’ of ‘Critical Race Theory’.

    …because it fits all the hallmarks of religion. No one is allowed to question the ‘scripture’ that all whites are oppressors. That oppression is whatever they say it is…

  10. #1
    We have no king. Elvis has left the building.
    #2
    Anything some king has now or ever did say means nothing in this country.
    Turns and walks away. No questions.

  11. My history is a little sketchy, but wasn’t there a ‘revolutionary war’ in which America broke away from Britain and formed a totally new country at some point?

    • Gov,

      Sometimes I wonder….
      The fascination to distraction with the royal family that so many folk in this country exhibit…
      The proliferation of English accented hawkers on USA infomercials…
      The folk who think the BBC news is not fake news because of those Brtish accents….
      People who thought Monty Python was funny….

      Seems like Britain still has too much cultural sway, here in the USA.

      Except for Doctor Who, good stuff, that. Well, at least through the David Tennent and Matt Smith years.

  12. The 9th circuit court, Federal judges, using archaic English law to subvert the USA Constitution, how is this not treason?? Ruling that laws from a bygone era from the country whose laws we rejected through successful revolution, ruling that those laws somehow supercede or modify our Constitution, constitutes a rejection of our Constitution, the very document the justices on the 9th circuit swore to uphold and defend. This is treason, and the time is coming when traitors will be outed, tried, and punished.

    • They aren’t supporting the laws, they are using them as reference as to what the founders would have used as reference when creating our laws.
      One of those “knowing where you came from can help you see where you’re going”.

  14. Well folks I believe that ultimately it is going to boil down to one of two courses of action. When the Left crosses the Line in the Sand and tries to confiscate your firearms you are going to have to decide whether or not you fight or give in. There are over 150 million firearm owners and about 3 million military and law enforcement in the Country and most of them are either not prepared to go door to door to take your firearms or will even obey an unconstitutional order to do so. To show you how afraid of gun owners they are here are some examples. In NY and Ct they tried to get owners of AR15’s to register their firearms. In CT they estimate 85% did not and in NY 95% did not. In both cases the State Police told their Governors they would not enforce the law unless they found people violating another law in the process. In NJ the State Police Superintendent threatened to go door to door to take large capacity magaizens from owners if they didn’t turn them in by the due date. After receiving almost 0, he said the same thing as the NY and CT police, and that is they would only enforce the law when it came up in another fashion. They clearly understand the beating they will take if they try to take your guns. I once asked two police officer friends what they would do if asked to confiscate firearms and one said “I would call in sick” and the other “A lot of police officers are going to get shot”. So keep in mind if you don’t want them to win they can’t. Also, keep in mind the people who are making the laws are not the ones who have to go door to door and if they did they wouldn’t make the laws in the first place.
    Fight back and defend yourself if they come knocking. After they realize the beating they are taking it will stop.

    • What do we do when they take small portions of it at a time? If you refuse, its full on crime, if you fight a little you lose anyhow.

  15. In 1328 they also burned witches and heretics. In 1653 the head of state dissolved the legislature. Just because it happened in Merrye Olde England once upon a time, doesn’t make it valid precedent here and now. If Americans had had no disagreement with English law in 1775, they wouldn’t have rebelled in the first place.

    • Can you just imagine what it’d be like today if the witches and heretics hadn’t been burned?! We’d be up to our necks in witches and heretics, and the place would be a disaster. When was the last time you saw a witch or a heretic, h’mmm? Don’t criticize an effective program!

      On the other hand, it may be time to again commence with the burning of witches and heretics, especially those occupying high government offices and ‘serving’ in legislative bodies.

      On another happy note, if a 14th Century edict can be used to support personal-arms control, then surely Droits du Seigneur (jus primae noctis) from a slightly earlier era would be equally applicable in support of the President bedding down a bride of ne of his vassals (as are we all) on her wedding night if he so desired. After all Bill Clinton adopted it during his terms as governor AND President in a slightly modified manner, establishing legal precedent.

  16. Sorry, I couldn’t get past “sited”. Good grief, where are those who can spell and write? I’m a complete 2nd Amendment advocate, but please, find someone who isn’t a boob to write these articles.

  20. I would like to believe I and many like myself are far more intelligent than people from 700 years ago. The same people who drowned or burned women thinking they were witches and who thought colds and illnesses were evil spirits that could be released by draining blood.

    Reference it all you want, its nothing more than someone trying to put their thoughts into words of someone who is far too dead to challenge the meaning.

    I don’t need word from a king who died 650 years ago to understand that it is best to have a weapon ready before an emergency exists than to acquire it during the event.

    Perhaps we should explain to doctors how cave men found food nourishing and life sustaining, you know, just in case they couldn’t figure it out on their own.

    • In some ways, we have become far LESS intelligent than them.

      We can have the entire breadth of accumulated human knowledge at our fingertips. And what do we use it for?

      Taking selfies, mostly.

  21. Much has changed since then. Some things haven’t. Other than serving as an indication of how long this has been part of human reality, after reading this I’m not seeing any point.

  23. In the 14th Century, the King still ruled by Divine Right. Serfdom (enslavement of the peasants) was only abolished in the middle of the century, and only then so the serfs could be turned into tax payers. The punishment for heresy was death by burning and conviction for treason would get you hanged, drawn and quartered.

    If you’re looking for an enlightened era to draw inspiration (or legal precedent) from, … 14th Century England ain’t it.

  24. It is true that much of our laws were based upon the laws our Founders knew, grew up with, were educated in. There’s just one little problem though if you stop there, because our Founders did not stop there. They wrote new laws to take the good of the old and correct the faults in the old.

    On top of that, the USA is fresh out of Kings or King’s Ministers’

    Thus, 700 year old law is lacking a chief executive to whom all his ministers may report.

    Null & Void folks, null and void ….. 🙂

  25. Sandra Day O’Connor used to love to quote European laws in writing opinions which controverted US law. If a court decision isn’t justified in this country, just pretend you’re in a country and/or time period where it would be acceptable and issue the decision anyway.

  28. The United States was begun with the Declaration Of Independence which took us totally away from British rule meaning this 700 year old British decree has NO significance here in OUR laws. Anyone who thinks this is pertinent to US needs to read the Declaration of Independence and the Constitution to see that British law has NO significance with regard to the right to keep and bear arms as defined in the Constitution. They can take their British BS and stick it where the sun doesn’t shine.

  29. If this b.s. from 700 years ago applies to the present day and to a country that kicked the English out, when are they going to start enforcing the laws the king decreed from that era? If one applies then all should apply to use their assine logic. All those decrees and laws and other b.s. has been superceded by our Constitution and laws passed in this country. We don’t follow laws from other countries especially ones from the Dark Ages.

  30. The English have lost again to the Indians and muslims that rule them!

  31. Of course, you all realize that the 9th Circuit court is referred to here on the left coast as the 9th Circus Court of Appeals inasmuch as they are also the most frequently overruled appellate court in the whole federal system. It’s too bad they are no longer required to “ride circuit”. It might jar some sense into their defunct cranial cells. Their rulings are like they have just arrived from some fantasy planet in some far galaxy.

  32. The courts are a bad joke and must be abolished. No individual who isn’t accountable should make the law. By the way i found an obscure statute written in Oz in 278BC forbidding the bearing of arms except when a burning bush grants a lisence to hunt prairie dogs.

  33. Seems pretty simple, the king and his nobility have all of the rights, the peasants have none. You can bear arms… for the nobles, the military or law enforcement, but not for yourself. This is what modern government is aiming for and using obscure methods to get there.

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