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 says:
David Kopel, once combed through the library of an 18th century law professor named George Wythe, who taught law to a supreme court justice, a couple of presidents, some founding fathers, and he found that John Knight's name was all over law books back then.
The part about Wythe is true. He did teach the law to John Marshall, Thomas Jefferson, and many other Founders. The rest is false.
I have never been on the campus of William and Mary. The closest I ever came was chaperoning a school field trip at Colonial Williamsburg. If I had gone to the William and Mary campus, I could not have "combed through" Wythe's library, because it no longer exists. Wythe gave his library to Thomas Jefferson, who later donated it to the Library of Congress, which the British burned on August 19, 1814, during the War of 1812.
Because neither I nor any man alive have ever seen any of the physical books in Wythe's library, I never said that Wythe's library shows that "John Knight name was all over law books back then." To the contrary, Knight's name isn't even mentioned in the Hawkins treatise; rather, Hawkins just cites "3 Mod. 117, 118" as part of his support for the statement "That no Wearing of Arms is within the Meaning of the Statute [of Northampton] unless it be accompanied by such Circumstances as are apt to terrify the People . . . " 1 Hawkins at ch. 63, page 136.
What I actually did was spend a few minutes on William & Mary Law Library's website, Wythepedia: The George Wythe Encyclopedia, which catalogues all the books of Wythe's library. Finding out that Wythe owned the Hawkins book and the two reporters who covered the John Knight case took me just a few minutes. (Here are the William and Mary Library cites for Wythe's ownership of Hawkins, 3 Modern Reports, and Comberbach.)
Gladwell's invention of the library tale makes for better story-telling. It exaggerates the importance of Gladwell's own story about John Knight, with his name "all over the law books back then." Likewise, the invented story about me having "combed" through Wythe's library is more interesting than the actual facts of my doing a few minutes of Internet research into an online catalog for a library that ceased to exist over two centuries ago.
To further heighten the drama of Gladwell's historical fiction, he names me "a founding member of the John Knight fan club." According to Gladwell, I consider Knight "the man whose brave example saved America from the tyranny of restrictive gun laws."
Actually, I have never written a single good word about Sir John Knight. My longest treatment of Knight's Case is in my coauthored textbook Firearms Law and the Second Amendment, chapter 22, pages 2100-02. There, I pointed out that Knight, "loved to use the law to persecute non-Anglicans" — namely Catholics, and also Protestants who did not adhere to the Church of England.
Perhaps Gladwell invented the claim that I supposedly extol John Knight because when I was in England on vacation, I visited the scene of the alleged crime that led to Knight's famous trial: St. Michael's Church in Bristol. I also looked at the gravestones, to see if Knight was buried there, but they were too worn for legibility. While I sometimes visit famous crime scenes, the visits do not indicate that I consider anyone involved to be heroic.
Near the end of the episode, Gladwell provides the moral, via historian Tim Harris, who says Knight was "nasty," "vindictive and spiteful," "a bigot," "a troublemaker." "I would hardly say that he was the sort of hero figure that champions of American liberty would want to celebrate."
Very true, and contrary to Gladwell's claim, no American has ever "celebrate[d]" John Knight. What some Americans, including me, have done is accurately describe the legal case. A person who accurately describes Miranda v. Arizona (1966) (6th Amendment self-incrimination) or Roper v. Simmons (2005) (8th Amendment cruel and unusual punishment) is not being a "fan" of Ernesto Miranda or Christopher Simmons. Miranda and Simmons were bad people. Even so, their cases set important limits on state power. To cheer the results in the Miranda or Simmons cases is not to "celebrate" either defendant.
Gladwell's concoction of Americans who celebrate Sir Knight is part of a larger fiction. He claims that the U.S. Supreme Court's 2022 New York State Rifle & Pistol Association v. Bruen pivoted on Knight's case. That case involved the Second Amendment right to bear arms.
According to Gladwell:
You want to play early history? I give you a crucial law from 1328, which absolutely the founders knew about that restricts guns WAY MORE than anything we're talking about in this court, your honor. If court cases are chess, this is check. The only way the gun rights crowd can win is if they can find their own bit of ancient history that trumps the Statute of Northampton, and incredibly, they do.
Then:
Everyone thinks that English common law, on which the American legal tradition is based, was hostile to people walking around with guns, but that is not true. John Knight was acquitted. John Knight goes up against the Statute of Northampton and John Knight wins. One side says, "The Statute of Northampton, check." The other side counters, "John Knight, checkmate."
The check/checkmate line is clever storytelling, but it's a figment of Gladwell's active imagination.
Regarding Gladwell's claim that "Everyone thinks that English law . . . was hostile to people walking around with guns." In 1689, the English Bill of Rights was enacted. It declared: "That the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law." From then until 1870, when a tax was imposed on public handgun carry, no English law restricted an individual peaceably carrying a gun for lawful self-defense, and there are no known cases of any such prosecution.
In Knight's case, the Chief Justice said that the Statute of Northampton had "almost gone in desuetude." That is, it had been unenforced for so long that it had almost become legally unenforceable. But the Chief Justice saved the statute, for he said that it simply reflected a longstanding principle of common law: carrying a weapon is unlawful when done in malo animo — with bad intent. The few post-1686 prosecutions under the Statute of Northampton all involved persons who were behaving dangerously with arms. E.g. Rex v. Dewhurst, 1 State Trials, N.S. 529, 601-02 (1820) ("A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business. But I have no difficulty in saying you have no right to carry arms to a public meeting, if the number of arms which are so carried are calculated to produce terror and alarm. . . .") (discussing constitutionality of a temporary law against arms carrying by rebels in six counties); Rex v. Meade, 19 L. Times Rep. 540, 541 (1903) (a man shot a pistol through a neighbor's window because of a dispute over a woman; the public should "know that people could not fire revolvers in the public streets with impunity."). See also Kopel et al., Firearms Law at 2103-07 (post-1686 history of Statute of Northampton in English law).
As for the Bruen case, nothing in English history was ever "check" or "checkmate." The core of the Bruen decision is the original public meaning of the Second Amendment, when it was ratified by the American people in 1791. The opinion of the Court is 63 pages in U.S. Reports. The Statute of Northampton is discussed in two pages (starting on the second half of page 31), and Knight's case gets one long paragraph. The Statute of Northampton reappears for one sentence on page 36.
Although Gladwell says that originalism is to "play early history," a 1328 English statute and a failed 1686 English prosecution are not "check" or "checkmate" for discerning American original public meaning in 1791; the laws of America in the immediately preceding and following decades are much more relevant, said the Court. Colonial laws are covered in pages 37-42 of the Bruen opinion. American laws between 1791 and the beginning of the Civil War are pages 42-51. These are the core of Bruen's historical analysis. Gladwell's notion of "check" in 1328 England and "checkmate" in 1686 make for an entertaining podcast, but not for accurate legal history.
Relying on Malcolm Gladwell's Revisionist History podcast for actual history is like relying on Comedy Central to understand current events. If you already know the relevant history or news, then the programs are entertaining, but not to be taken seriously. I haven't fact-checked all of Malcolm Gladwell's work, but I do know that a story-teller who announces that a person was in a place he has never been (me, on the William & Mary campus) combing through a library collection that has not existed for over two centuries (George Wythe's personal collection), the story-teller's prime objective is not accuracy.
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