By Ken Mondschein
Medieval history is once again in the news thanks to a Supreme Court case concerning New York State’s policy towards concealed-carry permits. Oral arguments in New York State Pistol & Rifle Association v. Bruen have hinged on an obscure fourteenth-century English law that allegedly allows the government to regulate the carrying of weapons.
I have previously written here on the Second Amendment, suggesting that, because of the long history and original meaning of the “right to keep and bear arms,” it is very difficult to make a gun-control argument that will stand up to an “originalist” interpretation of the Constitution. Originalism is a legal school, predominantly used by conservatives, that uses historical reasoning to deduce the “meaning” of the Founding Fathers. For instance, an originalist argument was key to the reasoning in uber-originalist Antonin Scalia’s majority opinion in 2007’s District of Columbia vs. Heller decision, which affirmed individuals’ right to keep firearms in their homes. (Lest you think “originalism” is a new phenomenon, it’s not—it arguably cropped up in 1796.)
In Bruen, the issue is New York’s restricting the right to carry weapons outside the home: the state, along with California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island, is a “may-issue” state that asks petitioners to show a compelling reason why they need a concealed-carry permit. The constitutionality of “may-issue” also cropped up in the Ninth Circuit’s decision on the recent Young vs. Hawaii case, which cites the 1328 Statute of Northampton, which forbade any subject “to go [or] ride armed” in violation of the peace. This was the statute that came up in the oral arguments of November 3, 2021, and it is probably only remembered to legal history because of a case from 1686—two years before the Glorious Revolution and three before the English Bill of Rights guaranteed Protestants the right to own arms—in which it was used during James II’s reign to charge the aptly-named Sir John Knight for carrying firearms to his (Protestant) church for self-defense against being attacked by Catholics. (He was acquitted.)
The problem is that the Ninth Circuit’s decision utterly misconstrues the nature of the Statute of Northampton. Conservative legal scholar Stephen Halbrook’s article in Reason is a necessary read on this, as is the Firearms Coalition’s amicus brief. As Halbrook points out, the problem is that at no time did the Statute of Northampton result in the disarmament of the general population—as is obvious to anyone who’s read The Canterbury Tales, as no one objects to Chaucer’s miller carrying a sword and buckler with him on the road.
To this, I’ll add that there is a significant difference between what “armed” meant in the early fourteenth century versus today. Every man carried a knife or dagger in the fourteenth century; as judicial records show, a sidearm that could be used for both self-defense or murder was always near at hand. What the Statute of Northampton forbade was wearing armor and riding in force—that is, the knightly class usurping the Crown’s sovereign monopoly on violence with military-grade hardware and generally acting like robber barons. It could be used to justify, perhaps, a ban on bulletproof body armor, but not on firearms.
If we wanted to look to actual medieval law for precedents on prohibiting the carrying of modern firearms, we could find plenty of material without needing to stretch the interpretation of an almost-unique and little-enforced law. Routine prohibitions on carrying weapons ranged from manorial prohibitions against peasants bringing bows and arrows into the woods (presumably to poach—see Rule 16 here) to medieval town laws (for instance, this 1463 statute from Maldon) that forbade “aliens” from carrying weapons.
This wasn’t only local law, either. In 1393, Richard II forbade “any man of whatsoever estate or condition… to go armed, girt with a sword or arrayed with unwonted harness [armor]… or do aught whereby the peace may be broken or the statutes concerning the bearing of arms contrary to the peace, or any of the people be disturbed or put in fear, under pain of losing his arms etc. and of imprisonment at the king’s will,” unless he was one of the classes of people in charge of keeping the king’s peace—essentially, law enforcement. Of course, Richard II has hardly gone down in history a model of liberty, and this was in the aftermath of the English Peasants’ Rebellion, but his statute was not unique or unprecedented: In 1282, Edward I similarly forbade fencing schools in London since it was “customary for profligates to learn the art of fencing, who are thereby emboldened to commit the most unheard-of villainies.” In 1285, Edward similarly forbade anyone from going around London after curfew “with Sword or Buckler, or other Arms for doing Mischief” unless they were, essentially, law enforcement or on official business.
Here’s sword nerd Matt Easton explaining that, contrary to pop culture, medieval people didn’t walk around armed to the teeth:
Even after the Middle Ages, regulations against certain weapons persisted. One example: In 1566, Elizabeth I proclaimed that:
no person shall wear any sword, rapier, or suchlike weapon that shall pass the length of one yard and half-a-quarter of the blade at the uttermost, nor any dagger above the length of 12 inches in blade at the most, nor any buckler with any point or pike above two inches in length.
People of the Middle Ages were just as concerned with the implications of going armed in the public sphere as we are today, if not more so. There are clear antecedents in pre-1688 English law to restrictions on the types of weapons that could be carried, where said weapons could be carried, and who could carry them. If we want to counter originalists by looking to medieval law for regulations about the carrying of weapons, we have plenty of material… just not the Statute of Northampton.
Top Image: Besançon BM MS.1360 fol. 121r