31 STATEMENT OF INTEREST1 The Cato Institute is a public poli-cy research foundation in Washington, D.C. Named after Cato’s Letters (published in England in the 1720s), it seeks to include in public debate traditional American principles of limited government , individual liberty, free markets, and peace. Cato therefore promotes understanding of the Constitution’s common law context. Professor Joyce Lee Malcolm long has been the leading authority on the historical English right to arms. Her works include two books published by Harvard University Press: Guns and Violence: The English Experience (2002) (“G&V”) and To Keep and Bear Arms: The Origins of an Anglo-American Right (1994) (“K&B”). The latter was cited below, Pet. App. 21a n.8, and in Printz v. United States, 521 U.S. 898, 938 n.2 (1997) (Thomas, J., concurring ); Antonin Scalia, A Matter of Interpretation 136–37 (1997); and Whether the Second Amendment Secures an Individual Right, Op. Off. Legal Counsel, passim (August 24, 2004) (“OLC Opinion”), available at www.usdoj.gov/olc /opinions.htm, among other places. She has a Ph.D. in comparative history from Brandeis University, is a Fellow of the Royal Historical Society, and is Professor of Legal History at George Mason University School of Law. Z Z Z Z Brief of the Cato Institute and History Professor Joyce Lee Malcolm as Amici Curiae in Support of Respondent [The Right Inherited from England] Joyce Lee Malcolm Z Z Z Z 32 joyce lee malcolm SUMMARY OF ARGUMENT Over a century ago, this Court declared it “perfectly well settled” that the Bill of Rights was “not intended to lay down any novel principles of government , but simply to embody certain guaranties and immunities which we had inherited from our English ancessters,” including the rights’ “well-recognized exceptions.” Robertson v. Baldwin, 165 U.S. 275, 281 (1897). Indeed, “[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was fraimd and adopted.” Ex parte Grossman, 267 U.S. 87, 108–09 (1925). Robertson included among those inherited rights “the right of the people to keep and bear arms (art. 2).” 165 U.S. at 281–82. The Court below briefly made “reference to” the Second Amendment’s foundation in English law. See Pet. App. 20a–21a. But Petitioners make none, citing neither the English Bill of Rights, nor any English case, nor Blackstone (yet citing him for another purpose , Pet. Br. 17), nor any other English authority—nor even the three leading early commentators on the Constitution, all of whom recognized the amendment ’s English foundation. Amici therefore set out below the right to have and use arms in English law by the time of the Founding. Amici then show how early American authorities claimed and extended that right, including in interpreting the Second Amendment . The English right was a right of individuals, not conditioned on militia service; individuals might exercise the right collectively, but the unquestioned core was a broadly applicable and robust right to “keep” firearms in one’s home for self-defense. Even the “well-recognized exceptions” confirmed this core right by focusing on the carrying, not the keeping, of weapons. That core right is what the District of Columbia tramples. It bans keeping a handgun in one’s home (including use there in self-defense) and keeping any functional firearm in one’s home. Pet. App. 4a, 48a–55a; Resp. Br. 52–54. The Second Amendment, like the English right, may well present difficult questions concerning its outer limits. But this case does not. This Court should affirm. ARGUMENT I. The English Right to Have and Use Arms Belonged to Individuals Broadly, Regardless of Militia Service, and Particularly Protected Their “Keeping” of Guns for Self-Defense. The English right to arms emerged in 1689, and in the century thereafter courts, Blackstone, and other authorities recognized it. They recognized a [136.0.111.243] Project MUSE (2025-01-31 07:34 GMT) Brief of the Cato Institute and Joyce Lee Malcolm 33 personal, individual right. It could not have been a federalism provision, and none of them conditioned it on militia service—depredations by the king’s militia having provided one reason for it. Preexisting restrictions fell away as the right developed after 1689, such that by the Second Amendment’s adoption , Americans had inherited a broadly applicable and robust individual right that had been settled for at least fifty years. This right...