Following the restoration of Charles II, a Militia Act of 1662 authorized seizure of weapons thought by the local authorities "to be dangerous to the peace of the kingdom." A highly restrictive Game Law of 1671 reasserted the hierarchical weapons limitations inherited from the Tudor era. Indeed, England's leading historian of the militia concluded that during the Restoration period (post-1660) much of the "civil population ceased to have arms."17
On the other hand, a quite different strand of English history discloses not just laws permitting arms possession among certain elements of society but an actual legal obligation to maintain such weapons. Medieval England had no professional police force; public order and national defense were maintained through decentralized use of county militias. The Statute of Winchester (1285) had made it a duty, not merely a right, for every male between the ages of 16 and 60 to keep weapons commensurate with his personal means. English subjects remained obliged well into the 18th century to join their neighbors, "upon a Cry for Arms to keep the Peace," to apprehend felons or to assist the sheriff in resisting rioters.18
So as of January 1689, when the newly elected Conventionthe legislative bodyassembled in London to compose a Declaration of preconditions to accepting William and Mary as King James' successors, English law relating to personal possession of arms was internally contradictory and confused.19 The law both prohibited and required the keeping of weapons. The king's recent policies had added to the confusion. Land-owning Convention participants resented being replaced as militia leaders in their counties by James' Roman Catholic supporters.20 This resulted in the grievance inserted at the beginning of the Declaration of Rights accusing James of "causing severall good Subjects, being Protestants, to be disarmed, at the same time when Papists were both Armed and Imployed, contrary to Law."21
The objection to disarmament had both collective and personal implications. In its original version as approved by the House of Commons, the clause declared simply that Protestant subjects could keep arms "for their common Defence," i.e., for militia service. The House of Lords both expanded and narrowed the assurance by striking the word "common" and adding "suitable to their Conditions and as allowed by law."22 Those revisions were preserved in the final version of the Declaration of Rights that William and Mary assented to, as well as in the later English Bill of Rights, which amounted to a ratification of the Declaration by a subsequent Parliament.
Scalia's Heller decision insists that the arms clause in the Declaration of Rights "was clearly an individual right, having nothing whatever to do with service in a militia."23 As just shown, the historical reality is different, and considerably more complex.
This brings us to the recent federal court of appeals decisions that attempt to apply Heller to new attempts by gun enthusiasts to invalidate state gun control laws on constitutional grounds. In Kachalsky v. County of Westchester, the Second Circuit addressed a challenge to Section 400.00(2)(f) of the New York Penal Law, which requires a showing of a special need to obtain a license to carry a concealed handgun.24 The plaintiffs attacked the provision under the Second Amendment, as interpreted in Heller. But the Second Circuit concluded that Heller supplied "no categorical answer to this case," because it had concerned firearms kept in one's home, while the New York statute relates solely to firearms carried in a public place.25 Moreover, while the Supreme Court's 2008 McDonald v. City of Chicago decision had applied the Second Amendment to the states, it had "reaffirmed Heller's assurances that Second Amendment rights are far from absolute and that many long-standing handgun regulations are 'presumptively lawful.'"26
To determine whether the Second Amendment right extends to public possession of firearms, the court first looked at history. The resulting picture turned out to be confusing and ambiguous. As explained by Judge Richard Wesley, writing for a unanimous panel:
History and tradition do not speak with one voice here. What history demonstrates is that states often disagreed as to the scope of the right to bear arms, whether the right was embodied in a state Constitution or the Second Amendment.27
The court's historical survey did, however, disclose a long tradition of state regulation, indicating that "state regulation of the use of firearms in public was 'enshrined with[in] the scope' of the Second Amendment when it was adopted."28 This meant that "substantial deference" to legislative judgments was called for. While the Second Amendment may protect personal possession of firearms within the home, it does not bar reasonable regulation of weapons in public places.
Two weeks later, the Seventh Circuit reached a different view of an Illinois law that prohibits, with certain exceptions, personal possession of immediately accessible firearms outside the home.29 In a 2-1 decision authored by Posner, the panel rejected the statute as unconstitutional. Moore v. Madigan, 2012 WL 6156062 (Dec. 11, 2012). The majority chastised the state for "ask[ing] us to repudiate the [Supreme] Court's historical analysis. That we can't do."30
The majority in Moore provides its own historical analysis, describing a long tradition of gun-keeping on the frontier in early America, which it distinguishes from the situation in England, where "there was no wilderness and there were no [hostilities with Indians] and the right to hunt was largely limited to landowners, who were few." Based upon this separate history, and in the absence of a "pragmatic" basis for the law, the court concludes that the Second Amendment limits gun controls in public places, not just in the home.31