In this new era of the United States Supreme Court, one topic in particular has been experiencing a tremendous amount of litigation: an individual’s right to bear Arms under the Second Amendment. Starting with the landmark ruling of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Supreme Court held that no regulation of firearms was appropriate where it did not exist in the history and tradition of the right itself.

The right, as the Supreme Court analyzed, extended back to its roots from the 1600s in England. The Supreme Court determined that the Second Amendment was simply a codification of a pre-existing right, and that right had to be analyzed in that proper context. However, if the Supreme Court truly wanted to track the history of the ownership of firearms in the history and tradition of Western Civilization, it is inarguable that the right originated during the reign of the Roman Emperor Diocletian. Diocletian instituted a concept known as the “limitanei.” These limitanei were nothing more than local militias that were armed due to the rise of the Germanic tribes who constantly invaded Roman territory.

This concept carried over into medieval England and proliferated among the culture. At the time, Viking raids were becoming more and more problematic as the Norse descended onto Britannia. Most towns and cities had armories where the militia’s weapons would be stored and would be drawn on collectively when threats arose. Images of tocsin bells and men and women rushing to the town square should arise in one’s mind when picturing the origin of this right and its effect.

Over time, the Anglo-Saxon control over England and its surrounding kingdoms solidified into a single monarchy centered in London. This monarchy became stagnant and corrupt, and after the conclusion of a bloody conflict known as the First Baron’s War, a landmark in human civilization was penned: The Magna Carta. This is the first formal enshrinement in English law of the right to bear arms. However, the Magna Carta was not an outright allowance to own a weapon, it was specifically to “expel from the kingdom all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and weapons to the harm of the realm.” Clearly, the origination of the right involved a requirement of militia service to this point to be able to take up arms. Subsequently, the English Parliament banned all Englishmen in 1328 – more than one hundred years after the grant in the Magna Carta – from possessing arms in public.

The Supreme Court in Bruen, Heller, and McDonald, chose to ignore this incredibly deep history of the right and instead started at the time of the English Bill of Rights in 1689. The English Bill of Rights granted the ability for Protestants to own and carry firearms and other weapons. This capacity was limited in some respects, but this is the origination of the mirrored and enshrined right in the Second Amendment. The Supreme Court, through years of caselaw, has interpreted the “militia” element of the Second Amendment to be merely referring to the rights of the people in general to form militias. Essentially, “militia” could be switched out for “armed citizens” and the meaning would be more in line with the current Supreme Court doctrine.