THE LAW OF THE WINCHESTER REPEATER

How medieval lawmaking underpins American gun ownership

I’ve been trying to finish this piece for a few days, but things have been getting in the way. It’s an expanded essay on one of my comments on last week’s AMA thread. It’s still rough around the edges, but I think it’s getting towards a coherent argument. See what you make of it…

Dan

Wat Tyler is killed at Smithfield in 1381, having urged Richard II to pass what amounted to the Second Amendment to the US Constitution

At the climax of the English Peasants’ Revolt of 1381, after several weeks in which the country had dissolved into rioting and anarchy, and leading ministers of the royal government had been murdered by mobs in London, the rebel leader Wat Tyler issued a strange demand. Meeting King Richard II at Smithfield, just outside London’s walls, Tyler asked the king to guarantee that there should be in England ‘no law save the law of Winchester.’

During the same meeting Tyler asked the king for all sorts of other outlandish and utopian things. He wanted an end to all lordship except the king’s. He wanted the destruction of the church hierarchy and a radical redistribution of land. It was a ‘strangle the last nobleman with the guts of the last priest’ sort of moment.

Tyler’s reward for his impertinence was to be stabbed to death by the mayor of London, and amid the drama of the Peasants’ Revolt the specifics of his demands are often forgotten. But I have been thinking about them in the context of the loud debate over gun ownership in the United States, in the wake of the latest American school shooting.

The link between a medieval English tax rebellion and a modern case of mass murder may seem hard to see. But a line runs from one to the other. And since this was a topic hotly debated on last week’s History, Etc thread, I thought I would set down a few thoughts about it here. I hope tracing the line will help us to put some of the issues concerning the right (or not) of the American individual to bear arms in its broadest historical context.

QUICK SIDENOTE: I am not a citizen or resident of the United States, I cannot vote in US elections; I am not seeking here to score political points. If you feel you may be too fragile to read something broadly critical of modern conceptions of the right to bear arms without frothing yourself up into a super-rage and unsubscribing/sending me some annoying email/bothering other people in the comments below the line, now is the time to stop reading and go make a camomile tea. Everyone else, carry on…

When Tyler asked Richard II for a return to the law of Winchester, what was he asking for? Over the years historians have puzzled over this, but most likely Tyler was referring to a law nearly a century old by the time of the rebellion: the 1285 Statue of Winchester, passed under Edward I as part of a larger programme of legal reform.

In its own time – the late thirteenth century – the Statute of Winchester represented a sort of ‘spring-cleaning’ of local peacekeeping legislation, effectively reminding English communities that they were responsible for arresting suspected criminals, cutting back hedgerows by roads so that brigands could not hide in them, etc. It stated that people were expected to maintain weapons in sufficient condition to use them to keep the peace and defend the land, and that village constables were responsible for inspecting weapons to make sure that this was so. In its time the Statute of Winchester was not very controversial – it simply sought to tighten up law and order regulations in an age where (according to the statute’s preamble) crime was perceived to be widespread.

However, by 1381 the Statute of Winchester had gained a semi-mythical status – in the minds of the rebellious peasants, at any rate. The fourteenth century had seen central government become increasingly interventionist with regards to law enforcement and peacekeeping, through royal officials such as Keepers of the Peace (later Justices of the Peace), and through commissions to investigate tax avoidance. Tyler’s rebels, who were in part protesting about precisely that sort of meddling by central government in local communities, wanted to turn back the clock roughly one hundred years, to a time when villages looked after their own and dealt with wrong ‘uns as they please.

We may consider in passing that ‘turning the clock back roughly one hundred years’ is almost always the aim of most protest movements, but that is neither here nor there. The point is that in the late fourteenth century, there had sprung up in certain quarters a nostalgia about laws designed to regulate the affairs of the same country in a different age. A return to ‘the law of Winchester’ of 1285 evidently struck the rebellious peasants in 1381 as satisfactory shorthand for stopping central government from interfering unduly in the localities; reasserting the rights of individual communities to bear arms and protect the peace as they saw fit was the goal and it seemed to be neatly expressed in a law from the times of their ancestors.

Which brings us to the Second Amendment to the US Constitution. I do not wish (nor am I qualified) to give a detailed history of the development of the Constitution. Nor do I want to parse in a hack-lawyerly fashion the notoriously terse and cryptic wording of the Second Amendment. For our purposes here it will suffice simply to quote it in full:

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.

Many things are ambiguous about the Second Amendment – that first comma alone throws up all sorts of questions. But it seems to me that what we have here is a 27-word, late eighteenth-century version of the ‘law of Winchester’. Its assumption is that security and freedom in the newly birthed United States is to be guaranteed by local communities self-policing via the organisation of an armed militia. To make sure this can be done well, the people must be able to keep and bear arms.

In the context of the 1790s, this makes sense – given that the alternative means of keeping the peace was to put one’s faith in an interventionist central government which held the monopoly on keeping and bearing arms. Faced with that prospect, which seemed to promise the eternal possibility of a return to monarchical tyranny, the Second Amendment committed the United States to medieval England’s system of peacekeeping. To guarantee that, it enshrined the American right to bear arms.

The problem is, we’re not in the Middle Ages any more.

Nor, indeed, are we in the eighteenth century. In the last two hundred-odd years every democracy in the world has transferred the business of local peacekeeping, law and order, and defence of the realm into the hands of central governments. We have police forces and standing armies, not local militias and the hue and cry. And in most modern democracies these peacekeeping agencies are empowered and effective because they possess either a heavy imbalance or total monopoly on the right to bear arms.

In other words, medieval systems of law enforcement have been swept away and – by and large – legal systems have been updated to reflect that. No sane person writing afresh the constitution of a modern democracy furnished with a police force and military would dream of granting as a fundamental right to all its citizens the right to arm themselves to an equal or superior degree to law enforcement officers.

That would be a recipe for endemic, uncontrollable, lethal violence.

Yet by a combination of historical quirk and the amoral political lobbying of the arms manufacturing industry, that is where the world’s greatest democracy finds itself. The US is a superstate policed according to twenty-first century norms, but undermined by a truly medieval constitutional guarantee. I do not especially blame Americans who cling to their right to hold arms in a fully armed society – it seems to me that this is basic game theory. I realise that gun laws vary between States (although when it is possible to drive from one State to another without handing over your weapons, um, who cares.) And I appreciate the powerful psychological hold that nostalgia plays when it comes to ancient laws. (See: many Britons’ obsession with the defunct and irrelevant medieval peace treaty known as Magna Carta.)

But the unfortunate consequence of having a fourteenth-century constitution, which has been exploited by lobbyists for the arms industry and interpreted by politicians in many States as protecting the individual’s right to be armed like the f***ing Terminator is plain for all to see. Sooner or later the law of Winchester gets you to a town like Ulvade, and whichever town is next, and next, and next, until something finally changes.