The Right of the People to Keep and Bear Arms: The Common Law Tradition
By Joyce Lee Malcolm
Publication Date
1983
Abstract
"This Article traces the right to keep and bear arms to its roots in the English common law tradition. From the medieval period through the seventeenth century, English law treated private arms possession as a widespread and expected feature of civic life, closely tied to self-defense, crime prevention, and militia service. Far from being a narrow or conditional privilege, the keeping of arms was understood as a normal incident of individual liberty and public responsibility.
The Article shows that Stuart-era efforts to disarm political opponents sparked resistance and culminated in the English Bill of Rights of 1689, which expressly recognized the right to have arms. American colonists understood this right as part of their inherited liberties, and it directly informed the Second Amendment. Recovering this common law background, the Article challenges interpretations that confine the right to collective militia service and clarifies the historical foundation of the modern right to bear arms."
Recommended Citation
Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285 (1983).
