District of Columbia v. Heller

Brief of the Cato Institute and Professor Joyce Lee Malcolm as Amici Curiae in Support of Respondent

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The District of Columbia has the nation’s strictest gun-control laws. The D.C. Circuit held in 2007 that they violated the Second Amendment, and the Supreme Court is considering—for the first time—whether the Amendment secures an individual right, not dependent on militia service. Critical to the Amendment’s original meaning is the English right to arms before the Founding. Many claim that it was negligible or is irrelevant. Cato’s brief, joined by History Professor Joyce Lee Malcolm, demolishes such claims and shows that the English in the 1700s had a broadly applicable and robust individual right. The core was the right of ordinary people to “keep” firearms to defend their homes and families—precisely what the District tramples. The common law merely regulated the misuse and public carrying of arms. The brief also demonstrates the early consensus that the Second Amendment at least secured the right inherited from England. C. Kevin Marshall of Jones Day authored the brief. While an official in the Justice Department’s Office of Legal Counsel, he co-authored its landmark 2004 memorandum setting out the Executive Branch’s interpretation of the Amendment as securing an individual right.

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