From English Penal Laws to the U.S. Second Amendment

One of my friends sent me a link to this article, assuming that I already knew about its premise: that the Second Amendment of the Bill of Rights was James Madison's response to Penal Laws that forbade Catholics in England and Ireland from owning weapons. Makes sense once I read it; like no religious tests for federal public office in Article VI, paragraph 3 was a response to English Test Acts passed during Charles II's reign.

To quote this article from The Washington Post by David Kopel:

Although Catholics were a small minority in England, there were concerns that in case of foreign invasion by a Catholic nation, they would ally with their co-religionists. Thus, in 1613 King James I had ordered the disarmament of all Catholics. Similarly, Michael Dalton’s widely read 1622 manual for Justices of the Peace, “The Countrey Justice,” explained that Justices could seize the arms of convicted “popish Recusants.” In English law, a “recusant” was a Catholic who refused to attend the services of the Church of England. Because the arms guarantee in the English Declaration of Rights did not apply to Catholics, Parliament was free in 1695 to pass “An Act for the better securing the government, by disarming papists.” The statute was aimed especially at Catholics in Ireland, who had a long history of fighting England’s efforts to rule them without their consent. Although Catholics had no right to arms, they could possess or carry a firearm if they were granted a license.

In the American colonies, however, there do not appear to have been arms restrictions aimed at Catholics, except for one episode in Maryland in the early 18th century, during Queen Anne’s War. James Madison aimed to make sure that religious restrictions on the right to arms could never be allowed in the United States. Madison’s notes for his speech in Congress introducing the Bill of Rights explained that the proposals were to deal with the “omission of guards in favr. of rights & libertys.” His amendments “relate 1st. to private rights.” A Bill of Rights was “useful–not essential.” There was a “fallacy on both sides–especy as to English Decln. of Rts.” First, the Declaration was a “mere act of parlt.” Second, the English Declaration was too narrow; it omitted certain rights and protected others too narrowly. In particular, there was “no freedom of press–Conscience.” There was no prohibition on “Gl. Warrants” and no protection for “Habs. corpus.” Nor was there a guarantee of “jury in Civil Causes” or a ban on “criml. attainders.” Lastly, the Declaration protected only “arms to Protestts.” Thus, the Second Amendment contains none of the limitations or exceptions of its English ancestor.

The author of the article is David Kopel, Research Director, Independence Institute, Denver; Associate Policy Analyst, Cato Institute, D.C; and Adjunct professor, Denver University, Sturm College of Law. It was based upon an article in the Georgetown Journal of Law & Public Policy, “The First Century of Right to Arms Litigation.”