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01/16/2018

An Aside on "Bear Arms"
Michael Ramsey

I have begun reading Peter Ackroyd's Revolution: The History of England from the Battle of the Boyne to the Battle of Waterloo (St. Martins' Press 2016) (an excellent readable book, although I think it may have a few slight missteps on American matters).  In discussing the aftermath of King William's defeat of James II and his Irish allies at the Battle of the Boyne, Ackroyd refers to the "Penal Laws" subsequently enacted to limit the liberties of Irish Catholics:

No Catholic landowner could pass on his estates intact to a single heir.  Catholics could not hold office, bear arms, or openly practice their religion.

The "bear arms" struck me because in the context of the other prohibitions, it sounds like a more substantial limitation than just prohibiting Catholics from militia service.  The passage doesn't actually quote the statute -- but since Ackroyd is British I doubted he had the phrase "bear arms" just on the tip of his tongue, so to speak, as an American might.  I couldn't find the exact statute Ackroyd described, but I found this discussion in Nicholas Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy (WoltersKluwer 2017) (p. 150):

The late seventeenth century saw the consolidation of "Laws in Ireland for the Suppression of Popery," commonly called the "Penal Laws."  The laws forbade Catholics to purchase land, hold government office, and to sit in the Irish Parliament.  Another Penal Law was the 1695 statute ... titled "An Act for the better securing the government, by disarming papists."  It forbade arms and ammunition possession by Irish Catholics.  There was an exception for "gentlemen" who swore an oath of allegiance to the king: they could have a sword, "a case of pistols" and a long gun for fowling or home defense.... Informers who told the government about Catholics with arms would get half the fine as a personal reward.

It's not clear if the latter statute used the phrase "bear arms," but in any event Johnson et al. continue: 

In 1699, Irish Catholic arms licenses were revoked, allegedly because may of them had been fraudulently obtained.  The Post Boy, Dec. 19-21, 1699, at 1, col. 1 ("all Licenses whatsoever to bear Arms, formerly Granted to any Papist in the Kingdom").

Assuming that's a direct quote from the statute, it strongly appears to use "bear arms" to mean something like "carry" or even "possess" but in any event not just "use for military purposes."  The point of the Penal Laws, as they related to arms, was to generally ban possession by Irish Catholics altogether.  Presumably the "Licenses" were exceptions to the general ban.  But then the "Licenses" would likely have been permissions to possess arms -- the issue wasn't whether Irish Catholics could use arms in military service, but whether they could have them at all.

Thus the 1699 statute appears to support the Supreme Court's reading of "bear arms" in D.C. v. Heller as meaning more than just "use in military service."  Of course it's not decisive, but it further supports the contention that there was a longstanding use in English law equating "bear arms" with "possess" or "carry" arms.  (The Heller majority made that contention but I don't think it cited the Irish act.).

I'm not a Second Amendment expert, and I expect that none of this is news to those who have studied the issue closely.  Also, there may be more (or less) to it than appears just from these brief references.  But as someone who has followed the debate casually, I had not encountered it before -- suggesting that more could be made of it.