The Right of ‘The People’ to ‘Bear Arms’: The Common Law, the Second Amendment, and the Carrying of Firearms Outside the Home

Abstract

Is the Second Amendment right of the people to “bear arms” overridden by the Statute of Northampton of 1328? A cottage industry of history-office lawyers think so, and their allegations are repeated in litigation arguments seeking to uphold discretionary handgun-carry licensing laws around the country. The reality is that the English common law only prohibited the carrying of arms to the terror of the subjects, and the right to carry was expansively recognized in the early American Republic. Virginia, Massachusetts, and other states limited the right only when exercised in a manner as to cause a breach of the peace, in which case one was required to find sureties to keep the peace. The right to bear arms for self-defense was recognized in state bills of rights, and was regulated only in some states by restrictions on carrying concealed. The only outright prohibition applied to slaves and African Americans, and that ended with the adoption of the Fourteenth Amendment during Reconstruction. Contrary to litigation-driven revisionist history, the right peaceably to bear arms is a pervading liberty in the American tradition.