A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment ed. by Jennifer Tucker, Barton C. Hacker and Margaret Vining (review)

In 1686 Sir John Knight, a wealthy merchant and relentless persecutor of Catholics and nonconforming Protestants, carried a firearm into a church service in Bristol, England. He was arrested for violating the 1328 Statute of Northampton, which prohibited going armed in public "to the terror of the people." He was acquitted.

What Sir John intended is unclear. To threaten the congregation? To warn Protestants that armed Catholics were at large in the town? Peacefully to worship with firearm at his side? The grounds for his acquittal are likewise unclear. Had he the right as a private individual to carry firearms into a church? Was he instead acting under public authority? Sir John himself claimed in court that he left his guns outside.

This obscure episode is discussed by at least four contributors to A Right to Bear Arms? (see 5, 24–28, 33, 76–77, 157, 192–99). Moreover Rex v. Knight (1686) is frequently cited as a key precedent by contemporary U.S. advocates of an unrestricted constitutional right of open- and concealed-carry.

Priya Satia in A Right to Bear Arms? acknowledges it may seem "politically absurd" to "rummage in the British past" to debate contemporary Second Amendment questions (37). Yet the U.S. Supreme Court made such rummaging necessary in its 2008 ruling District of Columbia v. Heller. That the Second Amendment affirmed a state's right to maintain a public militia is not disputed. Justice Antonin Scalia's Opinion for the Court in Heller argued, however, that the Second Amendment also incorporated a longstanding individual right under English common law to possess firearms. Whether the Second Amendment did incorporate English firearms law is disputed, within this volume and elsewhere, as is the character and evolution of English and American firearms law. Several of the scholars represented in A Right to Bear Arms? authored or coauthored amicus briefs in the Heller case, including Joyce Lee Malcolm (whose work grounded Justice Scalia's opinion in the case); and Saul Cornell and Lois Schwoerer, who argue that the Second Amendment's sole purpose was to ensure the viability of state militias, and that its framers assumed private firearms law would remain with the states.

The competing Heller briefs are included as Appendices in A Right to Bear Arms? (217–59, 261–309). Readers unacquainted with the case should read the Appendices first, then the essays in the body of the volume. Those essays were written post-Heller, and in many respects develop historical and legal questions that Heller left open. Heller declared an individual constitutional right to own firearms. The ruling did not directly address issues of concealed- or open-carry. Moreover, Heller acknowledged that private firearms had always been subject to public regulation, but did not specify which regulations were constitutionally acceptable and which were not.

This returns us to the murky 1686 case of Rex v. Knight. Did Sir John's acquittal signify that Englishmen (or at least wealthy Protestants) had a right to carry firearms anywhere, including churches, so long as they did not deliberately aim to terrorize others? That is the position of Stephen P. Halbrook (189–201), whose writings are cited by contemporary advocates of a presumptive constitutional right to carry arms anywhere, anytime. Halbrook argues that the Second Amendment incorporated a broad individual right to public carry of firearms that could be overridden only if it was proven beyond reasonable doubt that one had acted with "malo animo," a specific intent "to terrify the people" (192–93).

That interpretation of English law is strongly disputed by other authors in the volume. Saul Cornell argues that under English law the practice of riding armed was always subject to strict regulation...