The 1689 English Bill of Rights and the arms clause Americans refused to copy

Every few years someone announces, with the air of a man unveiling a lost Rembrandt, that the Second Amendment is just a recycled English law. Nothing new here, move along. The English had a Bill of Rights in 1689, the argument goes, and the Americans simply copied the arms clause into their own. Case closed.

It is a good story, and it falls apart the moment you put the two texts side by side. The Americans did borrow from the English. They borrowed the way a good carpenter borrows a design: he looks at what the house got wrong and then builds it again with the weak beam replaced. The arms clause of 1689 is the weak beam. The founders saw it, and they refused to copy it.

What James II did to the arms of his Protestant subjects

To understand the 1689 clause you have to understand the king it was written against. James II came to the throne in 1685. He was a Catholic ruling a country whose established church was Protestant, and he was the heir of a dynasty that had already fought one civil war and lost a king to the executioner's block in 1649. His brother Charles II had left him a tool that no free people should ever hand to a king: the Militia Act of 1662, which empowered the Crown's officers to search for and seize arms in the hands of anyone they judged dangerous to the peace of the kingdom.

Add the Game Act of 1671, which restricted the keeping of guns, nets and dogs to men holding land of a high yearly value. Whatever its stated purpose of protecting game, the practical effect was that most ordinary Englishmen could be treated as lawbreakers for keeping a fowling piece over the fireplace, and the men who enforced it were the king's gamekeepers and the king's friends.

James used what he inherited. He built up a standing army in peacetime, camped it outside London on Hounslow Heath, and put Catholic officers in command of regiments in defiance of the Test Acts. And he went after the local militias, the armed Protestant gentry and yeomen who were the traditional counterweight to a king with a professional army. The Supreme Court's history in Heller notes that the Stuart kings used select militias loyal to them to suppress political dissidents, in part by disarming their opponents, and that James II used the Game Act of 1671 to order general disarmaments of regions home to his Protestant enemies. The point was not subtle. A king who planned to rule without the consent of the governed first took inventory of who was armed.

Hold that picture, because it is the key to the clause. The English did not write an arms provision in 1689 out of abstract philosophy. They wrote it because the last king had tried to disarm the people who might resist him. It is a grievance turned into a statute.

The Glorious Revolution in five dates

The history is short enough to carry in your head.

1. June 1688. A son is born to James and his Catholic queen. Suddenly the prospect of a Protestant successor is gone, and a Catholic dynasty looks permanent. Seven bishops of the Church of England had just been tried for petitioning against the king's religious policy, and the jury acquitted them.
2. November 5, 1688. William of Orange, James's Protestant son-in-law and nephew, lands at Torbay in Devon with a Dutch army, answering an invitation from English leaders.
3. December 1688. James's support collapses and he flees to France. There is almost no fighting in England. The revolution is nearly bloodless, which is why the English named it glorious.
4. February 13, 1689. The Convention Parliament presents the Declaration of Right to William and Mary, and they accept the crown on those terms.
5. December 1689. The declaration is enacted by Parliament as the Bill of Rights, formally titled "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown."

The Declaration lists the crimes of James II one by one: suspending laws without Parliament, levying money without Parliament's grant, keeping a standing army in peacetime, and violating the freedom of election. Then it states the rights the Convention claimed as the ancient rights of Englishmen. The arms clause is one of them.

The exact text of the 1689 clause

Here is the provision as the Bill of Rights set it down, in the wording of the statute:

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Read it slowly. Four pieces matter.

"The Subjects which are Protestants." The right belongs to a religious class. A Catholic subject is out. This was not a marginal feature; it was the political purpose of the document. Parliament had just removed a Catholic king and was not going to leave Catholic hands armed. In the same year Parliament also passed an act "for the better securing the government by disarming papists and reputed papists."

"Suitable to their Conditions." The right is graded by rank. A gentleman's condition and a laborer's condition were different, and so was the weapon each might keep. Condition meant social station and property. Blackstone, writing in the 1760s, read the phrase as "suitable to their condition and degree," which tells you exactly how the English understood it.

"As allowed by Law." This is the loophole you could drive the whole British Army through. The right exists as far as Parliament permits it to exist. A statute could narrow it, condition it or empty it, and the clause itself instructed courts to enforce the statute.

"May have." Not "shall not be infringed." Permission, not prohibition. The grammar of the clause is that of a privilege recited, not a power denied.

There is also a companion clause in the same document that deserves attention. The Bill of Rights declares that raising or keeping a standing army in the kingdom in time of peace, unless with the consent of Parliament, is against law. So the English right and the English limit on armies sit in the same text, just as they would in the American state declarations a century later.

What the clause meant in England

Fairness first, because the English deserve it. The 1689 clause was a real advance. It repudiated the Crown's claimed power to disarm Protestant subjects at will, and it placed the question in Parliament's hands. Within the English constitutional order, in which Parliament was supreme, that was the best protection available. The remedy for a king with a militia seizure order was a statute that said the king could not do it.

The trouble was what came next. A right that depends on "as allowed by Law" is only as strong as the next Parliament. And the next Parliaments used the room they had. The Game Acts stayed on the books for generations, and enforcement against the poor was routine. English courts did not treat the 1689 clause as a limit on Parliament, because under Parliament's sovereignty there was nothing a court could do with a statute that cut the right back. Parliament was the constitution.

Now measure the clause against what actually happened in the next three centuries. England in time moved toward a regime of licensing and much stricter controls on firearms. Defenders of those later laws did not have to defy the 1689 clause. They only had to point to its final five words. The clause was written so that Parliament could do exactly this.

I am not saying the English invented the right to resist and then lost it by accident. I am saying their legal architecture had a built-in release valve, and the valve opened every time Parliament felt the pressure.

What the Americans did instead

Now the American record. Between 1776 and 1791, American legislators and convention delegates wrote arms provisions in several forms. Read in order, they show a people who knew the English clause, and rewrote it.

First, they dropped the religious test. No American arms clause says "Protestant." The right belongs to "the people," a phrase that the framers used for the same holders of rights in the First and Fourth Amendments.

Second, they dropped "suitable to their conditions." No American text sorts the right by rank. The citizen with a modest farm and the citizen with a large estate hold the same right.

Third, and most important, they dropped "as allowed by Law." The Second Amendment reads:

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.

The right of the people. Not the right of Protestants, not the right of the gentry, not a right Parliament may "allow." And the verb is the opposite of the English "may have." Shall not be infringed.

That is a command laid on the legislature. Here is the difference in structure. In England, Parliament conferred the right by statute and could qualify it by statute. In America, the people held the right already and the legislature was told to keep its hands off. The Ninth Amendment later made the same point in general form: the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.

A word-by-word comparison

Put the two clauses in a table, and the choices stand out.

Two words of the American text come from the English experience and deserve comment. "Keep" and "bear" are both verbs the Americans chose with care. To keep arms is to own them at home. To bear them is to carry them. The English clause said "have," which covers keeping but is thin on carrying. In District of Columbia v. Heller (2008), the Supreme Court read "keep and bear Arms" as an individual right to possess and carry weapons for confrontation, and in doing so it placed the English right in the background as a source of the American one.

The strongest objection, stated fairly

The best form of the argument against my thesis goes like this. The founders read Blackstone, and Blackstone described the English right as a right of every subject. The colonial lawyers who drafted the American texts repeatedly cited the English Bill of Rights as a source. In the Declaration of Independence itself, Jefferson charges George III with having "kept among us, in times of peace, Standing Armies without the Consent of our legislatures," a grievance that echoes the 1689 text. If the founders thought of the American right as a descendant of the English one, then the English limits, "suitable to their conditions" and "as allowed by Law," must have traveled with it. Why else would Madison have used the English right as his model?

That is a serious argument and I want to give it a serious answer. There are four parts.

One. Descent is not identity. The American Revolution was fought precisely because the colonists believed the English constitution as Parliament then read it did not protect them. They claimed the rights of Englishmen, yes, but they claimed them as rights of nature and of the original compact, and not as a grant from a Parliament that had overridden them. When a child inherits a house and tears out a wall, we do not say the wall is still there because he inherited the house.

Two. The word choices are the evidence. Madison and the First Congress had the English text in front of them. They had Virginia's 1776 declaration, which called the militia, "composed of the body of the people, trained to arms," the proper defense of a free state. They had Pennsylvania's declaration that "the people have a right to bear arms for the defence of themselves and the state." They did not write "Protestants." They did not write "as allowed by Law." A drafter who wishes to keep a limit has an easy tool: write it. They left it out, and the omissions were not accidental.

Three. The American constitutional order itself differs. In England, courts do not strike down statutes. In America, after Marbury v. Madison (1803), they do. A clause that says "shall not be infringed" in a country where judges can enforce it against the legislature is a different thing from a clause in a country where Parliament is supreme. The same words would work differently in the two systems, and the framers knew it, which is why they placed the Bill of Rights in the Constitution rather than in a statute.

Four. The founders were wary of the very feature we are discussing. Parliament's claim that it could do anything, including bind the colonies "in all cases whatsoever" (the language of the Declaratory Act of 1766), was the exact power that pushed them to independence. A people who had just fought a war over unlimited legislative power did not then write a constitutional right that unlimited legislative power could qualify.

So the objection teaches us something true. The Americans did take the English right as a starting point. But a starting point is not a destination, and the distance traveled is the substance of the American idea.

Why the difference still matters

This is not a quarrel among antiquarians. It decides how courts read the Second Amendment today.

If the American clause were the English one in different clothes, then every limit in the English text would be a limit in the American one. A court could say that arms must be "suitable" to a person's station, or that the right exists "as allowed by law," and so any statute within the legislature's discretion survives. That is, more or less, the reading that lower federal courts gave the amendment for much of the twentieth century, treating it as a militia provision that left the real work to the legislature.

But the text tells a different story. The people hold the right, the legislature may not infringe it, and the pre-existing right is the baseline. Heller said so, and McDonald v. City of Chicago (2010) extended that holding to the states through the Fourteenth Amendment. New York State Rifle & Pistol Association v. Bruen (2022) then held that when the plain text covers conduct, the government must justify a regulation by pointing to the nation's tradition of firearm regulation. That test would make no sense if the clause were the English one, because under the English clause the legislature's choice is itself the tradition. It makes sense only if the right is a limit on what the legislature can choose.

For more on how the English roots connect to American law, see Blackstone's fifth auxiliary right and how it shaped American thinking on arms, which reads Blackstone's own words on the subject, and What Pennsylvania and Vermont wrote about arms before the Second Amendment for what the states put in writing first. On the century-long English slide from right to licensing, Australia, Britain and Switzerland compared, and why none of them is America is the sober comparison, and for the meaning of "the people" across the Bill of Rights, The right of the people means the same thing in the First, Second and Fourth makes the case in full.

A note on what this does and does not prove

Honesty requires a limit on the claim. Nothing here says the American right is unlimited. Heller itself said so, listing long-standing prohibitions on possession by felons and the mentally ill and laws forbidding carrying in sensitive places as presumptively lawful, and noting the historical tradition of prohibiting dangerous and unusual weapons. Those limits come from the American record, however, and not from the words "as allowed by law." The English clause handed the question to Parliament. The American text hands it to the Constitution.

I will add one more observation, about politics, since I am arguing as a conservative. We often say that rights are only as strong as the institutions that defend them. The 1689 clause is the proof. The English wrote down a right that depended on the goodwill of the very body most likely to trim it, and it was trimmed. The Americans, having watched, wrote a right that depends on a written text and an independent court. It is not perfect protection. Courts have failed the Second Amendment before. But a clause that says "shall not be infringed" gives a citizen something to point to. A clause that says "as allowed by law" gives him nothing to point to but the law, and the law is whatever the majority has most recently enacted.

There is a quiet comedy in the modern habit of citing the English clause as if it were our own. The people who say "the founders only meant what the English meant" are, in effect, arguing that a revolution fought over the supremacy of Parliament produced a constitution that restored it. You would think the founders would have noticed.

The case in brief

1. James II used the militia and game laws to disarm Protestants he distrusted, and the 1689 Bill of Rights was written to answer that.
2. The English clause protected "Subjects which are Protestants," graded by "Conditions," and "as allowed by Law," so Parliament held the pen.
3. The American framers left out the religious test, the rank test and the "as allowed by Law" limit, and wrote that the right of the people "shall not be infringed."
4. Because American courts can enforce the Constitution against the legislature, the same right works differently here, which is why Heller, McDonald and Bruen read the text as a limit on lawmakers.
5. The English clause shows what a right looks like when the legislature controls its edges, and the American clause is the deliberate alternative.

What you can do: read the Second Amendment and the 1689 clause next to each other, then ask your state legislator which of the two models a pending firearm bill follows.