Second Amendment

David Kopel | 9.11.2024 7:26 PM

Being the son of two lawyers, I encountered cultural differences when I married into an Irish-American family. My new relatives were excellent story-tellers, and to them, the quality of the story was independent of its literal veracity. After a few years, I learned that when my wife is telling a story, even a story which I was a character, I should not interrupt her to correct any detail. The factual accuracy of any given detail was much less important — in fact, unimportant — compared to what the detail could contribute to an interesting yarn. So too with Malcolm Gladwell, host of the Revisionist History podcast. His tales are well-told; just don't confuse his revised narrations with actual history.

A case in point is the first episode of his 2023 gun control series, The Sudden Celebrity of Sir John Knight. To see how he revises facts to improve a story, consider a tale of his that makes me look better than in real life.

In 1686, Sir John Knight, of Bristol, England, was charged with violating the 1328 Statute of Northampton. The statute forbade the English "to go nor ride armed by night nor by day" under listed circumstances. According to the indictment, Knight "did walk about the streets armed with guns, and that he went into church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects."

Knight was acquitted by the jury. The presiding judge was the Chief Justice of King's Bench. His statements on the legal interpretation of the Statute of Northampton were reported by two reporters. Sir John Knight's Case, 87 Eng. Rep. 75, 3 Modern Rep. 117 (K.B. 1686); Rex v. Sir John Knight, 90 Eng. Rep. 330; Comberbach 38 (K.B. 1686).

How did this 1686 case become known to Americans? First, it was cited in William Hawkins' famous criminal law treatise, A Treatise of the Pleas of the Crown (1716, with 8 editions through 1824), for Hawkins' explanation of when carrying arms is and is not legal. The Hawkins treatise is tied for first as the most-owned imported criminal law book in colonial American law libraries. Herbert A. Johnson, Imported Eighteenth-Century Law Treatises in American Libraries 1700-1799 (1978). (Matthew Hale's The History of the Pleas of the Crown tied Hawkins for first.)

Hawkins' point that carrying arms is generally legal was cited by two American Justice of the Peace Manuals around the time of the Second Amendment. William Waller Hening, The New Virginia Justice 17-18 (1795); James Parker, Conductor Generalis; Or the Office, Duty and Authority of Justices of the Peace 11 (1st ed. 1764).

Besides the Hawkins treatise, another way that Knight's case likely became known was via George Wythe, of William and Mary. He was the first American law professor, and his large library included volume 3 of Modern Reports, and Comberbach, both of which reported the Knight case. Here is what Gladwell........

© Reason.com