The British Constitution and the Right to Keep and Bear Arms for Defence
Your Right to be Armed
Whatever happened to the right to keep and bear arms?
SRA Secretary Richard Law was invited to tease out the answer to this question in a presentation to the British Constitution Group’s conference in Sutton Coldfield on 1November 2014, and this summary is derived from his notes. Faithful readers of the Shooter’s Journal and of this blog may find some of the history familiar, but it remains as true and relevant as it ever was. We should add that Mr Law didn’t use these notes during his presentation, as the print was too small and the light wasn’t good enough to refer to them; and they’ve been lightly edited for publication here.
The short answer to the question is this: the right to keep and bear arms (RKBA) is hiding in plain sight, but to find where it’s hiding and to test whether it’s still real or not, one has to reach back through time to find its beginnings and then follow it to the present.
The dawn of English legislation—the root of what we have today—was originally compiled by King Alfred the Great (AD 849-899), as the Doom (pronounced Dome) Book. Alfred amalgamated several pre-existing Saxon codes of law from the earlier kingdoms and prefixed it with Mosaic Law from the Bible. Biblical law from the Pentateuch tends to be people-oriented, while the early Saxon codes were more concerned with property and inheritance.
Christians are familiar with the Ten Commandments, while Jews recognize a further 603, one of which, at Leviticus 19:15, says: Do not pervert justice; do not show partiality to the poor or favouritism to the great; but judge your neighbour fairly.
Every four-year-old understands the principles of fairness, articulated, often loudly, at that age by a simple phrase: “It’s not fair!”—and often enough they’re right.
King Alfred originated the requirement that the able-bodied men of his counties should turn out when he called them to defend the realm. It was an obligation, rather than a right, but it presumed a right.
Alfred made no legislative or financial provision to arm or train his men. When called upon, they had to turn up ready to go toe-to-toe with the Vikings/French/Irish/etc., so the obligation was both to be armed and to have trained ready for that eventuality. There was nothing in his law that would prevent the men turning out in response to a threat; either individually, or collectively as the militia, to meet any enemy with appropriate force, defensively. Clearly, no one could fulfil his obligation if he didn’t have the right to bear arms in the first place.
This concept survived the Norman invasion, as all William I won at Hastings was the Crown—the right to be recognized as successor to Edward the Confessor. That came with all the legislative baggage of the kingdom. The victorious knights who came with William to enforce his claim to the throne became a tier of government, and the obligation to turn out as necessary followed the top-down style of Norman-French governance. The king called the barons, and they called out their retainers.
The phrase ‘common law’ comes from Henry II (1133–89)’s drive to improve the judiciary in the 1160s. He sent out judges from his own court to the counties to hear matters, so that there was one law common to all the people, reflecting the fairness principle in Leviticus and becoming the proto–quarter sessions and circuits. The common law principles came out of cases being recorded, and judges regarding each other’s decisions as binding in similar cases—the principle known as stare decices.
This wasn’t, in Henry II’s time, the common law as we know it. There were still alternatives to the courts in the form of trial by ordeal and trial by combat, and court hearings did not necessarily trouble to hear evidence. Trial by ordeal was still in use in the witch hunts of the 1640s, and the right to silence that defendants had until Michael Howard’s tenure at the Home Office was actually an obligation until fairly recently.
King John’s Magna Carta in 1215 is sometimes regarded as the first Human Rights Act, although Alfred would probably want his Doom Book regarded as such. King John had a go at revoking Magna Carta the following year, and it was King Edward I who issued a statute reconfirming it in 1297.
So, the common law obligation has been there since before the Norman Conquest: it being a requirement for each man to arm himself as best he could afford (“suitable to his condition”) and to train in preparation for the call-out should it ever come. The time and effort weren’t wasted because, if the realm wasn’t in peril, there could and would be threats to the peace closer at hand.
Also, nobody should set out to take on the Vikings without having trained with the weapons beforehand. The obligation to train is best remembered from a recently repealed archaic law that made it a requirement for yeomen to practice archery on the village green on Sundays. The archers who went to France with Henry V put some 42 tons of arrows on the advancing French in less than fifteen minutes at Agincourt. Their descendants will repeat the performance at the 600th anniversary re-enactment next year.
The individual right to arms was legislated against by King James II (who used militia to enforce his laws, or more particularly to solve his tax-gathering problems). James’s abuses led to his gentle overthrow, and the Bill of Rights in 1689 restated the common law—among other things restoring to Protestants various rights that James had sought to curtail while not denying them to his fellow-Catholics.
The Pilgrim Fathers carried the Bill of Rights to America as the founding principles of their legislation. Their successors had run-ins with George III (1738–1820), who sought to curtail their rights and had a go at collecting their weapons up in lieu of taxes. His local agents failed on both counts because they were up against men who knew their Bible and their rights. And who were, of course, armed.
The United States Constitution was hastily drafted in the 1770s. Hence the need for the rather more leisurely series of amendments promulgated in 1791; and it’s their Second Amendment that muddles thinking somewhat by seemingly tying the individual right to arms inextricably to the militia concept. There are variations of the wording, depending on source, but the US National Archive has it as: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Back in England, the individual right had been settled in 1689, and thereafter two Acts of Parliament sought to prevent the militia forming without having a direct threat to meet—the Unlawful Drilling Act, 1819, and the Public Order Act, 1936. But no one moved to prevent a spontaneous militia forming in defence of the realm in 1859 (volunteer rifle regiments, rifle clubs and the National Rifle Association, all in reaction to a possible invasion from France) and in 1939, when Essex men formed up as the Legion of Frontiersmen long before the Government called out the militia as Local Defence Volunteers, later renamed the Home Guard.
In 1870, the Gun Licensing Act taxed the volunteers and other gun owners in the sum of ten shillings a year each: to be paid unless you held a licence to kill game, which was another tax, or benefitted from an exemption. The 1903 Pistols Act was likewise a tax. You needed only one of these three licences to have a gun beyond the confines of your home, and only then if not exempted.
The government separated shooting clubs from rifle regiments in 1908 with the formation of the Territorial Army. After that, the clubs continued with charitable status for training men in peacetime for the defence of the realm in wartime, until service rifles were ‘prohibited’ in the 1980s, and club charitable status was revoked in the 1990s. Both by the same politician, as it happens: Douglas Hogg (Conservative, Grantham), who left Parliament in 2010 with a moat kept clean at taxpayers’ expense.
Government was generally positive about the possession of rifles by the public, certainly from 1859 on, after they got caught napping and the defence of the realm really was in the hands of the people who lived here; that positive attitude carried through until the Great War and the call-out of the citizen’s army in 1915.
The problem the government had after that was the Irish rebellion in 1916, appallingly handled; combine that with the Russian revolution and a world war which ended with four empires collapsed, twenty-seven royal families redundant or murdered; and all those new, bankrupt countries with inexperienced political leaders and a surfeit of weapons.
The government asked Sir Ernley Blackwell to consider the problem of how to prevent European war surplus being sold off to wannabe rebels in countries like Afghanistan and Ireland. He decided the best thing to do was to ignore the question and crack down on the domestic market, particularly on pistols, and his report became the basis for the Firearms Act, 1920.
Meanwhile, the government had given away captured German rifles, machine guns and field artillery to the public as inducements to buy war bonds. Servicemen returned from foreign battlefields with souvenirs could keep them, and they got a pay off—known as the Dole—of £1; or £2 if they handed the great coat in.The land fit for heroes was clearly nervous about them returning. This combination of events and the Liberal government’s reactive policies help explain why the Liberals became unelectable after 1918.
Commander Kenworthy asked the Home Secretary during the debate if the 1920 Bill affected the right to defence and was told it didn’t. The 1920 Act wasn’t retrospective and contained a lot of exempted occupations. Its intention was to limit the acquisition of firearms, and more particularly of ammunition, to those whom they deemed friends of the government.
The step change came in the 1930s, probably in reaction to developments in the United States, where the prohibition on the manufacture and sale of alcoholic beverages had led to organized crime and a lot of gunfights. The Federal Government passed the Gun Control Act of 1934, which imposed a transfer tax of $200 on machine guns and silencers. Individual states and cities had passed laws before that; Texas banned concealed carry in 1892 and New York prohibited carrying handguns in public places in 1911.
The other reasoning was pragmatic. While you didn’t need a firearm certificate in the UK to possess a firearm for defence, it was and is a handy thing to have when you want to buy ammunition. So having a firearm certificate became worthwhile credential for people who used their firearms a lot.
The Bodkin Committee (which reported in 1934) heard evidence that machine guns had no sporting application against deer, and the subsequent (1937) firearms act created a ‘prohibited weapons’ category, to possess any of which one had to obtain Defence Council authority. This wasn’t a tax. It became Section 5 of the 1968 Act, and applications for such authority are—to this day—free. The issuing authority, which mostly seems to do its best to avoid doing its job, became the Home Office in 1973.
The Prevention of Crime Act, 1953, led to police forces advising people who had firearm certificates for arms they kept for defence, that ‘defence’ was no longer a good reason for possessing a firearm on certificate. Some people changed their good reason—target practice or pest control; others handed their guns in; and some took them off ticket and kept them for defence. The seismic change in government policy—at a time when Winston Churchill was Prime Minister—seems to have come about in reaction to the nuclear bomb.
In 1938, dying Prime Minister Chamberlain went to Germany and returned with Hitler’s autograph on a piece of paper, which he hailed as ‘peace in our time’. He knew perfectly well that he was lying; what he bought was time, during which the Chain Home radar stations were completed, the Observer Corps recruited and trained, conscription started, gas masks issued and Anderson shelters supplied to such of the urban public who had gardens to put them in, and the RAF took delivery of eight-gun monoplane fighter aircraft. So when war came in 1939, Britain had done as much as could have been done to prepare for it.
In 1953, Britain could not afford to do anything to protect the public in the event of an atomic war, so they opted for doing nothing. The assumption was that an exchange of missiles would not be followed up by boots on the ground. The Russians would not invade the UK after polluting it with radiation. War was thus assumed to be a short-term affair, after which government’s problems would all be coming from erstwhile voters.
The (post-nuclear) war-game scenario was that roving bands of heavily-armed and probably rather peeved citizens would appear outside the government bunkers. The scenario never saw them as the voters the government had let down so badly: it saw them only as the problem. So, one solution was to make it harder for these roving bands of common-law militia to get weapons, hence the new policy in 1954: after which firearm certificates would be issued only for possession of firearms for sporting purposes.
Richard Law did some research in the 1980s and could find no evidence that Winston Churchill had ever held a firearm certificate. Churchill wasn’t into shooting as a sport, but he certainly kept firearms for defence, notably a Colt M1911, which was last seen on display in the underground Cabinet Rooms museum in Whitehall. From 1920 until the late 1980s, Scotland Yard recorded details of firearms on certificates in their area on a card index in serial number order. That Colt didn’t have a card.
Following the murder of three London policemen in 1966 by Harry Roberts (just recently released from prison), Home Secretary Roy Jenkins rushed in shot gun certificates, after which the Firearms Act, 1968, was passed as an Act of consolidation. The Home Office commissioned (Sir) John McKay to report on firearms matters. McKay recommended a crackdown on the sporting public and what they used, and most of his recommendations eventually became the Firearms (Amendment) Act 1988, barring most ‘military’–type weapons from civilian sport.
We note at this point that all the restrictions from 1920 onwards relate to firearms used for sporting purposes, and the earlier ‘restrictions’ were all taxes.
In 1998, Mike Burke applied to the Home Office for a Section 5 authority for some prohibited weapon or other. He was refused as a matter of policy and appealed to the High Court, which in turn refused his appeal on the grounds that the Firearms Act, 1968, by implication repealed the Bill of Rights. (FC3 98/7400/3)
In 2002, in the Metric Martyrs case (CO/3308/2001, Thorburn v Sunderland City Council), Lord Justice Laws said that there were ordinary statutes and constitutional ones, and an ordinary statute could not repeal a constitutional one merely by implication. The way to amend constitutional statutes was for a new act to say that that is what it is doing on its face.
Taken together, Burke’s dismissed appeal and the Metric Martyrs case agree that the Bill of Rights has not been amended. The Firearms Acts are relevant to and control sporting guns, not military, militia or personal defence ones. Law, with Peter Brookesmith, set out this train of thought in the book Does the Trigger Pull the Finger (Spitfire 2011). Nobody has challenged what the book says as incorrect. The book also sets out a solution to the various problems the government has created for itself and us.
Currently, the only people regularly benefitting from your common law rights are cops and robbers. Cops because they have always carried firearms under the common law, exercising their (and your) right to be capable of defending themselves; and bad guys because, the anecdotal evidence is, when they claim that a firearm in their possession is for their own defence, they are not charged. The police don’t want to test the common law defence in court, and there are already several precedents confirming that your rights remain untroubled by legislation since the right was re-affirmed in 1689.
In 2008, the United States Supreme Court heard District of Columbia v Heller. This case came about because Washington DC had banned handguns to virtually all its residents, except of course cops and robbers, and the few people who did have permission [sic] to keep a gun at home had to keep it dismantled and unserviceable, in which case it could not be used in the event of a home invasion or police raid.
This turned DC into the murder capital of the United States: statistically the most dangerous place on Earth outside of some war zones. Mr Heller sought to overturn DC’s handgun ban and succeeded because the Supreme Court held that the city’s law infringed Heller’s Second-Amendment rights. The court recognized the right to keep and bear arms as an individual one. DC’s problem was that while the Constitution did not prevent them setting qualifications or taxes on the right, their law prevented the exercise of it altogether, and that was unconstitutional.
The outcome was that DC had to revise its laws and create a carry permit law—thus following many other states in the past twenty years—so that its citizens could be armed for their defence as necessary. The increase in armed citizens, real or imagined, is certainly reflected in the downward trend of crime statistics in America.
Reading between the UK’s lines, we note that our Home Office treads a delicate path; in declining applications to register weapons for defence as a matter of policy, they are actually saying that you don’t need one for the purpose.
But it seems to be the position that the law never has impeded the possession of arms for defence, so a Section 5 application is redundant. But if you make one and get turned down, it would not subsequently be possible for the police to prosecute you for not having one without charging the Home Secretary with complicity, unless the refusal was for some weighty and lawful matter and not issued as a matter of policy.
In 2014, and after several false starts, the Scottish Government published a bill to create an air weapons certificate. In announcing it, Kenny MacAskill said that there was no right to bear arms in modern Scotland.
We asked the question about implied repeal in modern Scotland, and they quoted the Metric Martyrs case back at us in a letter dated 17 September 2014; in effect, this is the argument from our book Does the Trigger Pull the Finger? So, either they’ve read our book and agree with us, or they’ve read the law and come to the same conclusions as we did.
What they haven’t done, yet, is explain the attitude toward the RKBA of Kenny MacAskill—who has also avoided explaining to us, or to anyone, the lawful authority police in Scotland have for being routinely armed (a move made, possibly, because he’s in the process of reducing the drink-drive limit in Scotland in time for Christmas). The Scottish air weapons bill, if passed as drafted, violates the Scotland Act, the Human Rights Act, the European Convention on Human Rights, the Bill of Rights and the Claim of Right, and thus the Treaty of Union and the Firearms Act, 1968, as amended, to name but a few.
So there it is. The Bill of Rights reasserts your common law right and obligation to arm yourself as best you can afford and to be prepared. It cannot be repealed by implication, according to Lord Justice Laws, and no attempt has been made to put your rights asunder overtly. The right (and obligation to train) you’ve had for over a thousand years is still there, hiding in plain sight.