In A Win for the 2nd?, I wrote about how the Fourth Circuit court has ordered the parties to brief them on when “common use” comes into play under Bruen.

Some comments talk about “in common use” being an issue for us. It is not.

Consider a startup company that introduces a new shell. For sake of argument, let’s call it the “Worm Breath.” When this shell is fired out of a standard shotgun, it puts out a visible flame 20 yards long.

The rogue, infringing states leap into action and ban “Worm Breath.” The legislative findings are that it is extremely dangerous and has no reason to be in the hands of civilians.

A 2A group finds a front person and sues.

Under Bruen the 2A group has to prove that “Worm Breath” is an “arm” under the plain text of the Second Amendment and that a member wishes to keep or bear it.

That is it. There is nothing in that requirement that touches on “common use”.

The state then has the burden of proving a history and tradition of banning things like “worm breath”.

They immediately talk about how this is a unprecedented societal concerns or dramatic technological changesNew York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022) and a more nuanced approachid. is required.

That is, if they are in an honest court. If, instead, they are in a dishonest court, they claim that “worm breath” is not in common use and can be banned.

It doesn’t work that way. “In common use” is of use only to us. Never to the state.

The Heller court did the analysis of history and tradition and found that there is no history and no tradition of banning arms that are in common use.

In order for the plaintiffs to prevail in an arms ban case, they only need to say, “It is in common use.” if there are more than 200,000 of that arm in use.

If the manufacture of “Worm Breath” can show that more than 200,000 rounds have been sold, then “Worm Breath” is in common use and cannot be banned.

What if the manufacture cannot prove to the court that they have sold more than 200,000 rounds? Nothing happens.

The state still has the burden of proving that there is a history and tradition of regulations banning “arms” of this type.

“In common use” is a one-way ratchet, in our favor.

Yes, the state wants to make it go the other direction. Yes, the state wants the burden of proving “in common use” to rest on the plaintiffs. Yes, the state wants to negate the meaning.

What the state wants and what the Supreme Court has said are two extremely diverse things.

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By awa

5 thoughts on “In Common Use!”
  1. “What the state wants and what the Supreme Court has said are two extremely diverse things.”
    Indeed. Problem is, the issue might have to get back before SCOTUS to be resolved correctly, given the predilections of inferior courts.

    1. The REAL problem, in my opinion, is that the USSC has already ruled, but the lower courts are ignoring or trying to weasel around it, and there aren’t any readily apparent ‘teeth’ that the USSC can use to enforce their opinion.

      Now, if we had something along the lines of automatic disbarrment if out of, say 30 rulings, over 70% are overturned, then there is a mechanism to weed out the ‘bad’ jurists.

  2. I mean you lost me. You say common use has no meaning or bearing then explain how it does?
    What does in common use mean? I don’t recall a rigid definition of if being provided. That’s the danger wiggle room might as well be an open door for a lawyer. It also doesnt matter if it is legal or not, as long as there is plausible wiggle room to exploit games can be played until a higher power says no. And that can take decades.
    It is not a one way rachet. You can easily prove that artillery pieces, hand grenades, and machine guns have no history of common use amongst the public. All of which are are clearly arms covered by 2A.

    1. I think the point is that the good guys are supposed to prevail if (1) it’s in common use, or (2) there isn’t a history of regulating it. So “in common use” is sufficient for us to win, but not necessary — we can also win with (2).

      Apart from the fact that the bad guys are forever looking for “dishonest and dishonorable” ways around the Constitution, there’s also the fact that even these somewhat-helpful notions are not permitted by the Constitution. The correct Constitutional interpretation is “Does the regulation limit the use of or access to an arm? If yes, it’s not allowed. Done.” This of course would set aside all current Federal firearms laws, which is why SCOTUS hasn’t done it, but if they were obedient to their oath they would do so.

      1. I take your point, but I think we get out of it that easily. I cannot think of anything in our modern age that does not have a history of regulation and that is not in common use. Once again see artillery pieces, grenades, and machine guns. At certain points there was no history of regulation for the said items but still probably no common use. At certain points there was regulation of said items but no common use. Still too much wiggle room for comfort IMO. However such items are still explicitly protected by Miller because of their military use. Seems like we have two competing possibilities and later precedent gives more leeway for regulation to me.

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