The Right of the People to Keep and Bear Arms

Origins

"Undoubtedly what went before the adoption of the Constitution may be resorted to for the purpose of throwing light on its provisions."

 

- Mr. Chief Justice [Edward Douglass] White, deliver[ing] the opinion of the court, U.S. Supreme Court, MARSHALL v. GORDON , 243 U.S. 521 (1917).

Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy.

18. Of the double Service.

It was a fundamental principle of the monarchy that whosoever was subject to the military power of another person was subject also to his civil jurisdiction. Thus the Capitulary of Louis the Debonnaire, [117] in the year 815, makes the military power of the count and his civil jurisdiction over the freemen keep always an equal pace. Thus the placita [118] of the count who carried the freemen against the enemy were called the placita of the freemen; [119] whence undoubtedly came this maxim, that the questions relating to liberty could be decided only in the count's placita, and not in those of his officers. Thus the count never led the vassals [120] belonging to the bishops, or to the abbots, against the enemy, because they were not subject to his civil jurisdiction. Thus he never commanded the rear-vassals belonging to the king's vassals. Thus the glossary of the English laws informs us [121] that those to whom the Saxons gave the name of Coples [122] were by the Normans called counts, or companions, because they shared the justiciary fines with the king. Thus we see that at all times the duty of a vassal towards his lord [123] was to bear arms [124] and to try his peers in his court.

[117] Art. 1, 2, and the council in verno palatio of the year 845, art. 8, edition of Baluzius, tome ii, p. 17.

[118] Or assizes.

[119] "Capitularies," book iv of the "Collection of Angezise," art. 57; and the fifth capitulary of Louis the Debonnaire, in the year 819, art. 14, edition of Baluzius, tome i, p. 615.

[120] See the 8th note of the preceding chapter.

[121] It is to be found in the "Collection of William Larabard," De Priscis Anglorum legibus.

[122] In the word Satrapia.

[123] This is well explained by the assizes of Jerusalem, chaps. 221, 222.

[124] The advowees of the church (advocati) were equally at the head of their placita and of their militia.

- Baron de Montesquieu, The Spirit of the Laws, Book XXX. (1748).

1. Let every holder of a knight's fee have a hauberk, a helmet, a shield and a lance. And let every knight have as many hauberks, helmets, shields and lances, as he has knight's fees in his demise.

2. Also, let every free layman, who holds chattals or rent to the value of 16 marks, have hauberk, a helmet, a shield, and a lance. Also, let every free layman who holds chattals or rent worth 10 marks have an aubergel and a headpiece of iron and a lance....

4. Moreover, let each and every one of them swear before the feast of St. Hilary he will possess these arms and will bear allegiance to the lord king, Henry, namely the son of empress Maud, and that he will bear these arms in his service according to his order and in allegiance to the lord king and his realm..."

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"Mr. Henry for it. Says that a preparation for Warr is Necessary to obtain peace--That America is not Now in a State of peace--That all the Bulwarks, of Our Safety, of Our Constitn. are thrown down, That We are Now in a State of Nature--That We ought to ask Ourselves the Question should the planns of Nonim [portatio] n & Nonexp [oratio] n fail of success--in that Case Arms are Necessary, & if then, it is Necessary Now. Arms are a Resource to which We shall be forced, a Resource afforded Us by God & Nature, & why in the Name of both are We to hesitate providing them Now whilst in Our power."

"...Good and wise men, in all ages, have embraced a very dissimilar theory.
They have supposed, that the deity, from the relations, we stand in, to
himself and to each other, has constituted an eternal and immutable law,
which is, indispensibly, obligatory upon all mankind, prior to any human
institution whatever.

"This is what is called the law of nature, "which, being coeval with
mankind, and dictated by God himself, is, of course, superior in obligation
to any other. It is binding over ALL the globe, in ALL countries, and at
ALL times. No HUMAN LAWS are of any validity, if CONTRARY to this; and such
of them as are valid, derive all their authority, mediately, or immediately,
from this original. - Blackstone

"Upon this law, depend the natural rights of mankind, the supreme being gave
existence to man, together with the means of preserving and beatifying that
existence. He endowed him with rational faculties, by the help of which, to
discern and pursue such things, as were consistent with his duty and interest,
and invested him with an inviolable right to personal liberty, and personal
safety....

Pennsylvania Charter of Privileges, October 28, 1701

Cato’s Letters, No. 33 - "to the first law of nature, that of self-preservation", June 17, 1721

Journals of the Continental Congress, "...When hardy attempts are made to deprive men of rights, bestowed by the almighty..." May 29, 1775

Joseph Hewes to Samuel Johnston, "I have furnished my self with a good Musket & Bayonet", Feb. 11, 1776

Samuel Adams to Samuel Cooper, "the Moment we determin'd to defend ourselves by Arms", April 30, 1776

In the House of Representatives, "And that each of said Regiment furnish himself with a good Gun, Bayonet and Cartouch Box before he pass Muster", May 7, 1776

Journals of the Continental Congress, "In Magna Charta there is a clause which authorizes the people to seize the King's castles and oppose his arms when he exceeds his duty.", May 10, 1776

John Adams' Notes of Debates, "We shall [lose] our Liberties, Properties and Lives too, if We do not take this Step", May 13-15, 1776

Journals of the Continental Congress, "That as a number of arms, fit for use, may be bought of the owners, who may incline to sell them...", May 14, 1776

Journals of the Continental Congress, "...Arms must decide . . . if we enjoy not liberty...", May 29, 1776

John Witherspoon's Speech in Congress, "antecedent to any particular law derived from the social compact, or even actual consent", Jan. 8, 1778

Revolutionary Diplomatic Correspondence, "That it will appear by the constitutions and other public acts of the several States that the citizens of the United States, possessed of arms", Jan. 31, 1780

After The Fact

Precedent