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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.

Waldensian (mail):

In my view, the Cato/Malcolm brief demolishes the claim that the 1689 English Bill of Rights, Blackstone's Fifth Auxiliary Rights, and other common law sources did not recognize a right to own firearms in the home for personal defense.

Agreed. Game, set, match to Cato on that point.
2.9.2008 7:40pm
Porkchop:
The thing that has always nagged at me, though, is that the right was limited to Protestants. I understand the historical reason for that, but the lack of universality seems to make it harder to make the leap that Cato and others (including me) want to make. If some criterion of loyalty or reliability can be applied to screen out undesirables, then what prevents that from happening under the Second Amendment. (I am not referring to the debarment of felons or mentally ill persons from firearms ownership, here, but to the application of other criteria.)
2.10.2008 10:26am
wuzzagrunt (mail):
Porkchop wrote:

The thing that has always nagged at me, though, is that the right was limited to Protestants. I understand the historical reason for that, but the lack of universality seems to make it harder to make the leap that Cato and others (including me) want to make. If some criterion of loyalty or reliability can be applied to screen out undesirables, then what prevents that from happening under the Second Amendment.

For the answer to that, you merely have to look at many jurisdictions with purely "discretionary" handgun licensure. New York City is a fine example.
2.10.2008 2:14pm
juris_imprudent (mail):
The thing that has always nagged at me, though, is that the right was limited to Protestants.

All rights were effectively limited to Protestants at that time in England. Hence our constitution guaranteed no religious test (i.e. disqualification) for holding office, and the rights under the 1st Amdt. The English would eventually catch up with us and our somewhat more enlightened view.
2.10.2008 7:02pm
Tony Tutins (mail):
Extending rights once enjoyed by a favored class to all of the citizens is the American way.
2.10.2008 10:16pm