tually reached the king. 12 Under feudalism everyone but the king is
a renter!
The Normans sought to take arms away from the Anglo-Saxons. 13
Although this conqueror’s expedient contributed to the success of
Norman rule in England, 14 it also planted the seeds of future arguments for the right to bear arms. Many of the framers, including
Jefferson, believed in “the ancient constitution,” the notion that
Anglo-Saxons lived in a sort of primitive democracy. 15 This, presumably, was the source of “rights of Englishmen” in the face of despotic “Norman” kings. As modern gun enthusiasts assert, the right to
bear arms is a big part of the Anglo-Saxon package.
About a century later, England’s Norman rulers had changed. Or perhaps, they just recognized a few things they could not stamp out.
In the 1181 Assize of Arms, King Henry II required all free male
subjects to bear arms and serve in an early militia system. 16 These
early militias not only defended England, they also maintained
domestic order. 17 The men kept night watch to confront and capture
suspicious persons. Every subject had to protect the king’s peace,
which meant responding to the “hue and cry.” 18 This was the precursor to the posse. 19 The militias were much closer to police than a
national guard.
Each soldier bought and maintained his own armor and weapons,
In addition to being Robin Hood’s weapon of choice, the long-
bow was a mainstay of English armies, especially during the
Hundred Years’ War. 22 The English won the battles of Crécy
10. Harold gets
an arrow in the
eye for the
Bayeux
Tapestry. A
modern gun
rights advocate
could say that it
serves Harold
right for agreeing
to bow and arrow
control.
13. For this reason, trial by battle in
England was a Norman practice. After
trial by battle lost its validity, the practice
of dueling continued among the noble
class, i.e., those who could bear arms.
Eventually this led to the dueling code, or
“code duello,” requiring that only “
gentle-men” could kill each other in a civilized
manner. See generally ROBERT BALDICK,
THE DUEL: A HISTORY (1965). A key part of
the dueling code ritual was that the challenged party chose the weapon.
14. The Robin Hood stories reflect this. Robin is a “Saxon” and the bad guys—the Sheriff of Nottingham
and Guy of Gisbon—are “Normans.” Ironically, in most of the modern stories Robin and the “Merry Men”
are fighting to restore King Richard I “the Lion Hearted” (1157–1199) to the throne, who was just as
Norman as his brother the “evil” King John “Lackland.” Robin Hood remains a
perennial. See e.g., THE ADVENTURES OF ROBIN HOOD ( Warner Bros. 1938) with
Errol Flynn; ROBIN HOOD: PRINCE OF THIEVES (Warner Bros. 1991) with Kevin
Costner; Disney’s ROBIN HOOD (Buena Vista 1973), or even Mel Brooks who got
into the act with the spoof, ROBIN HOOD: MEN IN TIGHTS (20th Century Fox 1993).
ROBIN HOOD (Universal Pictures 2010) reworked the story yet again.
15. See Mark De Wolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L.
REV. 582, 584 (1938-1939).
The Arms: The Bow and Staff: Robin and the “Merry Men” use the bow and
quarter staff made from the trees of Sherwood Forest (usually the yew and oak
respectively). As for the Bow see note below.
The Staff – aka “The Quarter Staff” was Little John’s weapon. It may have
gotten its name from the way the fighter holds it by placing his hands a “quarter”
of the way on the staff. Or because it can be a non-lethal weapon, the user can
“give quarter” i.e., mercy. The fact that the wielder can use the quarter staff
non-lethally made it the weapon of choice for Xena’s sidekick (and perhaps girl-friend/“significant other”) Gabrielle in Xena: Warrior Princess, an American TV
series (Pacific
Renaissance
Pictures Ltd.
Sept. 15,
1995–June
18, 2001) (a
spinoff from
Hercules: The
Legendary
Journeys ).
16. On the medieval militia system,
see Fields & Hardy at 400–01.
17. Fields & Hardy at 400 n. 30;
LEONARD W. LEVY, ORIGINS OF THE BILL
OF RIGHTS 136 (1999).
18. LEVY at 136. The hue and cry
(Latin hutesium et clamor, “a horn
and shouting”) was when anyone
who witnessed a crime called upon
all able-bodied men to help catch a
criminal. The Statute of Winchester,
13 Edw. I, cc. 1, 4 (1285) (Eng.) provided that the hue and cry continued
against the fugitive from town to town
and county to county until the felon
was caught and delivered to the
sheriff. Falsely raising the hue and
cry was itself a crime.
20. LEVY at 136.
21. The English Longbow, aka the
Welsh longbow, was about 6 feet 6
inches ( 2.0 m) long and made from
the English yew tree. See
generally ROBERT HARDY,
LONGBOW: A SOCIAL AND
MILITARY HISTORY (1976). Longbow is also the name of the AH- 64 Apache attack helicopter.
There is also the
AGM-114L
Longbow Hellfire,
an air-to-ground
missile …
and the Dakota
Longbow T- 76
19. Posse Comitatus (Latin for “the
power of the county”) referred to the
county sheriff’s authority to conscript
any able-bodied man over the age of
15 to help him keep the peace or pur-
sue a felon. The sheriff’s specific power
to conscript men into an ad hoc militia distinguishes
the posse comitatus from the older hue and cry. In the
earlier medieval period the term was pro toto posse
suo invoking the power of every able-bodied man to
apprehend the accused. See DANNY DANZIGER & JOHN
GILLINGHAM, 1215: THE YEAR OF MAGNA CARTA 176
(2003). This is the “posse” in Western books and
movies. See e.g., POSSE (Paramount Pictures 1975).
The Arms: The Dueling Pistol: One special
firearm was the dueling pistol, which was never a
weapon of self-defense but of honor. The pistols
came in a set of two, identical in reliability and
accuracy. Generally, they were either single-shot
flintlock or percussion-cap pistols using black
powder and firing lead balls. Usually “the seconds”
loaded the guns, and the duelists fired from
between 20 and 40 feet. With modern pistols such
short distances would normally assure fatality for
both duelists. But dueling pistols were smoothbore
meaning they were not rifled to increase accuracy.
Some guns had a secret
form of rifling, called
“scratch rifling,” that was
difficult to see with the
naked eye. This is why the
code duello allowed duelists
and seconds to inspect the
guns and why the party that
did not supply the guns got
to choose his weapon.
11. William Sutton Fields, The Third Amendment: Constitutional
Protection from the Involuntary Quartering of Soldiers, 124 MIL. L. REV.
195, 196 n. 4 (1989). The fryd made up most of King Harold’s army at
the Battle of Hastings in 1066 AD in contrast to William’s feudal army.
The Battle of Hastings marked the demise of the Huscarls. Harold’s
surviving houscarls went to Europe as mercenaries with many arriving
in Byzantium where they joined the Varangian Guard. By the 12th
century, the
Varangian Guard
had so many
Saxons that it
was sometimes
called “The
English Guard.”
12. In 1156, Henry
II introduced the
system of scutage (Latin for shield) where knights and lords bought out
of military service. The King used the money, basically a tax, to hire
professional soldiers. Tom W. Bell, The Third Amendment: Forgotten
but Not Gone, 2 WM. & MARY BILL RTS. J. 117, 118–19 (1993).
Hagia Sofia, the jewel of Byzantium architecture.
The Arms: The Danish Battle-Axe: The main
weapon of the Anglo-Saxon
housecarl was the
“Danish,” a two-handed
battle-axe. About the
height of a man, it could
easily cut though the
chain-mail armor of the
Modern reproduction of the battle-axe.
Lucy Lawless as Xena looking
for redemption after pillaging.
Renee O’Connor with
staff as Gabrielle.
22. Robin Hood shooting his
Longbow.
The Hundred Years War
(French: Guerre de Cent Ans )
lasted from 1337 to 1453
between the Houses of Valois
and Plantagenet (Anjou) for
the French throne.
