FPC, Law Prof. Joyce Lee Malcolm File Brief Urging the Supreme Court to Uphold Second Amendment Right to Publicly Carry Arms, Providing Key English History of the Right

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WASHINGTON, D.C. (July 20, 2021) — Today, Firearms Policy Coalition (FPC) announced that attorneys Scott Keller, Matthew H. Frederick, Jonathan D. Urick, and Jeremy Evan Maltz of Lehotsky Keller have submitted an important merits-stage United States Supreme Court brief on behalf of FPC and Professor Joyce Lee Malcolm in NYSRPA v. Bruen, a case challenging New York’s “proper cause” scheme for the issuance of licenses to carry arms in public. The brief can be found at FPCLegal.org.

FPC’s brief provides a thorough exploration of English history and argues that the English right to have and use arms at the time of the American Founding included the right to carry weapons outside the home for self preservation and defense. It further argues that the en banc Ninth Circuit’s evaluation of historical sources omitted crucial material, leading the court to a flawed understanding of the preexisting English right to possess and carry arms.

“FPC’s brief provides the Supreme Court with substantial historical support for the fundamental, individual right to bear arms,” said FPC President Brandon Combs. “It also highlights how the Ninth Circuit has improperly analyzed the relevant history and failed to respect the right in its Second Amendment decisions, which must be corrected. On behalf of our members and supporters, FPC thanks Professor Malcolm for joining our brief and her incredible scholarship on this critical area of law. We also thank Mr. Keller and his co-counsel for their tremendous work preparing an excellent cornerstone brief in this important case.”

“Those keen to erase the Second Amendment right of the people to bear arms outside their homes are attempting to rewrite legal history, inventing convenient facts and ignoring inconvenient facts.  They are entitled to their own opinions, of course, but not their own facts. The Supreme Court in Heller found the right to people to keep and bear arms includes their right to carry weapons outside their homes for self-defense and other lawful purposes. The FPC brief makes that history absolutely clear. It was a pleasure to help bring the truth to light,” said Professor Malcolm.

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“The U.S. Supreme Court has made clear for decades that the U.S. Constitution must be interpreted in light of the English history at the time of the American Founding. This amicus curiae brief makes clear that the English right to have and use arms at the time of our Founding included the right to carry common weapons outside the home for self-preservation and defense. The Second Amendment therefore protected this well-established right to publicly carry arms, subject to longstanding English common law restrictions on carrying dangerous and unusual weapons in a manner that terrified the public. But simply publicly carrying weapons in common use for lawful purposes was protected by both the historical English right and the Second Amendment,” explained Mr. Keller.

Co-amici Joyce Lee Malcolm, Professor Emerita of Law at the Antonin Scalia Law School at George Mason University, is an historian and constitutional scholar active in the area of constitutional history, focusing on the development of individual rights in Great Britain and America. Called “the leading historian on the history of English gun control and gun rights” by constitutional scholar David Kopel, she is the author of eight books and many articles on gun control, the Second Amendment, and individual rights. Her work was cited several times in the U.S. Supreme Court opinion in District of Columbia v. Heller. Professor Malcolm has previously taught at Princeton University, Bentley College, Boston University, Northeastern University and Cambridge University. She was also a Senior Advisor at the Massachusetts Institute of Technology Security Studies Program, a Visiting Scholar at Massachusetts Center for Renaissance Studies, and is a Bye Fellow at Robinson College, Cambridge University.

Mr. Keller has argued 11 cases before the U.S. Supreme Court and 12 cases before the Texas Supreme Court, the only practicing lawyer to have argued at least 10 cases in both courts. Mr. Keller frequently represents parties in high stakes appeals, and he has argued many cases in federal courts of appeals throughout the nation. He has earned individual accolades from the National Law Journal, Law360, The Best Lawyers in America (BL Rankings, 2021), and other publications. Before founding Lehotsky Keller LLP, Mr. Keller headed Baker Botts LLP’s Supreme Court Practice. He also has significant experience at the highest levels in all three branches of government. Mr. Keller served as the Solicitor General of Texas, the State’s chief appellate litigator. He was U.S. Senator Ted Cruz’s chief counsel on the Senate Judiciary Committee. Mr. Keller was a law clerk for Justice Anthony Kennedy of the Supreme Court of the United States and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. He was also a Bristow Fellow in the U.S. Department of Justice’s Office of the Solicitor General.

Individuals that are interested in joining FPC in the fight against tyranny can become a member of the FPC Grassroots Army for just $25 at JoinFPC.org.

Firearms Policy Coalition and its FPC Law team are the nation’s next-generation advocates leading the Second Amendment litigation and research space. Some FPC legal actions include:

  • A challenge to California’s ban on so-called “assault weapons” (Miller v. Bonta) that resulted in a post-trial judgment and permanent injunction against the challenged regulations, the first such victory in United States history
  • A challenge to California’s handgun “roster”, microstamping, and self-manufacturing ban laws (Renna v. Bonta)
  • A challenge to California’s firearm purchase rationing ban (1-in-30 day limit) (Nguyen v. Bonta)
  • A challenge to Minnesota’s ban on handgun carry by adults under 21 (Worth v. Harrington)
  • A challenge to Illinois’ ban on handgun carry by adults under 21 (Meyer v. Raoul)
  • A challenge to Georgia’s ban on handgun carry by adults under 21 (Baughcum v. Jackson)
  • A challenge to Tennessee’s ban on handgun carry by adults under 21 (Basset v. Slatery)
  • A challenge to Maryland’s ban on handgun carry (Call v. Jones
  • A challenge to New Jersey’s ban on handgun carry (Bennett v. Davis)
  • A challenge to New York City’s ban on handgun carry (Greco v. New York City)
  • A challenge to Pennsylvania’s ban on handgun carry by adults under 21 (Lara v. Evanchick)
  • A challenge to the federal ban on the sale of handguns and handgun ammunition to adults under 21 years of age (Reese v. ATF)
  • A challenge to Maryland’s ban on so-called “assault weapons” (Bianchi v. Frosh)

For more on these cases and other legal action initiatives, visit FPCLegal.org and follow FPC on Instagram, Twitter, Facebook, YouTube.

Firearms Policy Coalition (firearmspolicy.org), a 501(c)4 nonprofit organization, exists to create a world of maximal human liberty, defend constitutional rights, advance individual liberty, and restore freedom. FPC’s efforts are focused on the Right to Keep and Bear Arms and adjacent issues including freedom of speech, due process, unlawful searches and seizures, separation of powers, asset forfeitures, privacy, encryption, and limited government. The FPC team are next-generation advocates working to achieve the Organization’s strategic objectives through litigation, research, scholarly publications, amicus briefing, legislative and regulatory action, grassroots activism, education, outreach, and other programs. FPC Law (FPCLaw.org), the nation’s largest public interest legal team focused on the Right to Keep and Bear Arms, lead the Second Amendment litigation and research space.

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