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: 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 (Aug. 24, 2004) (“OLC
Opinion”), available at
USDOJ: Office of Legal Counsel
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
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 “wellrecognized
exceptions” confirmed this core right, by
focusing on the carrying, not the keeping, of weapons.