The English Roots of the Right Arms. DC v. Heller brief:

A brief for the Cato Institute and legal historian Joyce Malcolm, in the DC handgun ban case, explicates the English common law roots of the American right to arms, and the development of that common law right in America.

Many of the briefs on both sides of this case has brief treatments of the English roots. A mistake in my view, since the material is so repetitious. The English issue is covered in some depth in a pro-ban brief filed by historians Jack Rakove, Saul Cornell, and others.

In my view, the Cato/Malcolm brief demolishes the claim that the 1689 English Bill of Rights, Blackstone's Fifth Auxiliary Right, and other common law sources did not recognize a right to own firearms in the home for personal defense. The Cato/Malcolm brief is far broader and deeper in its use of English sources, and requires no verbal gymnastics to attempt to explain away the plain languages of the key sources. Part II of the brief leads the reader through the development of the common-law right in America, from the colonial era through the 19th century.

Jeffrey Toobin has written that Justice Souter reveres the common law; if so, the Cato/Malcolm brief may be especially persuasive to him.