Legal Case Analysis
The state dances around “in common use” because they fear it. They even explain why it can’t be used. If it was used, then they would lose.
(1650 words)

In Bruen, the Supreme Court rejected the interest-balancing test that many courts of appeals had applied since District of Columbia v. Heller, 554 U.S. 570 (2008), and replaced it with a two-step test rooted in text, history, and tradition. Bruen’s first step asks whether “the Second Amendment’s plain text covers an individual’s conduct[.]” 597 U.S. at 17. If so, “the Constitution presumptively protects that conduct.” Id. Only at that point is Bruen’s second step triggered, under which “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id.
No. 104 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.)

Ok, the state starts with a clear, concise, and correct statement of Heller‘s text, history, and tradition methodology.

One aspect of Bruen’s first-step textual determination, and one that is central here, is whether the object being regulated is an “arm.” That is because, if a regulated object is not an “arm” as that term is understood for purposes of the Second Amendment, it falls outside of that amendment’s protections. See Bevis v. City of Naperville, 85 F.4th 1175, 1192 (7th Cir. 2023), petitions for cert. filed, Nos. 23-877, 23-878, 23-879 (U.S. Feb. 14, 2024), No. 23-880 (U.S. Feb. 15, 2024) (“We begin by assessing whether the assault weapons and large-capacity magazines described in those laws are Arms for purposes of the Second Amendment. If not, then the Second Amendment has nothing to say about these laws: units of government are free to permit them, or not to permit them, depending on the outcome of the democratic process.”).

When a circuit court issues an opinion, it can be cited in other cases. Here, the state is referencing an opinion from the Seventh Circuit, which said that it was the plaintiff’s burden to prove that something is an arm.

This is pure sophistry. The Seventh Circuit is saying something true to hide the false premises that will come later.

In order for the Second Amendment to presumptively protect a conduct, that conduct must fall within the scope of the Second Amendment. Thus, the object must be an Arm. The conduct must have something to do with keeping or bearing that arm.

“Is it an arm?” is the first question to be asked. The Seventh Circuit stated that correctly. The state states that correctly here.

The state then begins its dance. [T]he the Supreme Court in Heller explored the parameters of what constituted an “arm” such that it would fall within the protections of the Second

This is a good first step, Heller did explore what constituted an arm.

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[w]eapons of offence, or armour of defence.” 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
District of Columbia v. Heller, 467 U.S. 837, 581 (2008)

There you have it. That is the definition of arms, as the Supreme Court has defined it. All firearms are “arms” and fall under the plain text protections of the Second Amendment.

The state has, correctly, stated that the first step is for the plaintiffs to prove that the plain text of the Second Amendment applies. Is it an arm? Do the plaintiffs wish to keep or bear that arm?

But the state dances but conflating later parts of Heller with the plain text definitions. The Heller court asserted that there could be modern regulations that were constitutional. None of which matters to the plain text analysis.

As Heller thus demonstrates, this threshold examination of whether a regulated object is an “arm” (and thereby protected by the Second Amendment) is part of the initial textual analysis. Bruen corroborated this approach. There, after clarifying the general standard to be applied in Second Amendment cases, the Bruen Court turned to the question of whether the conduct at issue in that case—carrying a handgun publicly—fell within the amendment’s textual protections. 597 U.S. at 31-32. But within this context, the Court first verified that other aspects of the textual analysis had been satisfied. To that end, the Court not only confirmed that the Bruen plaintiffs were “part of ‘the people’ whom the Second Amendment protects,” but that the particular weapon being regulated fell within the “arms” protected by the amendment. Id. And in making that latter determination, the Court noted that “handguns are weapons ‘in common use’ today for self-defense.” Id. at 32.
#104 in Dominic Bianchi v. Anthony Brown (4th Cir., 21-1255), No. 21-1255

The dancing continues here. A conflation. The Bruen Court never questioned if handguns were arms. They noted that handguns are not only arms/weapons, but that they are in common use today.

“The water is cold.” Does that mean that in order for something to be water, it must be cold? No. It does not put that restriction on the definition of “water”. This is what the state is attempting to do.

Hence, to the extent a “common use” inquiry may be implicated, it should be performed at the initial step of the Bruen test as part of the determination of whether the weapon at issue constitutes an “arm” for purposes of the Second Amendment. If a plaintiff meets that threshold, and satisfies other aspects of this initial determination, a regulated object will enjoy the presumptive protection of the Second Amendment. That, however, does not end the inquiry. Instead, a finding that a regulated object is an “arm” merely triggers Bruen’s second step, and in turn the government’s opportunity to demonstrate that the challenged regulation is nonetheless consistent with the amendment’s historical tradition. See Hartford v. Ferguson, __ F. Supp. 3d __, 2023 WL 3836230, *3 (W.D. Wash. June 6, 2023) (noting that the presumption that comes with satisfying Bruen’s first step “can be overcome” through Bruen’s second step).

Of note, the state argues in a footnote, that not only should the plaintiffs bear the burden of proving “in common use” they should also prove the “character of the weapon” makes it suitable for individual self-defense and not military arms and, and, and…

No, the “in common use” part of the inquiry should not be the first step. The state is terrified of a correct use of “in common use”. If “in common use” is part of the historical analysis, it is used as a rebuttal to the state. The state is arguing that “in common use” should only be used to determine if it is an “arm” as defined.

Nothing true about that argument.

The state ignores that the “in common use” was in reference to the second step under Heller. The Heller court found that there was no historical regulation that was a match to a weapons ban of arms in common use.

Moreover, conducting a “common use” inquiry as part of the threshold constitutional determination avoids the remarkable notion that a “common use” determination will, as plaintiffs claim, be by itself dispositive of the entire Second Amendment analysis. Instead, as it was in Bruen, the proper role for the “common use” inquiry is merely to determine whether a regulated object is presumptively protected. See Capen v. Campbell, __ F. Supp. 3d __, 2023 WL 8851005, *8 (D. Mass. Dec. 21, 2023), appeal docketed, No. 24-1061 (1st Cir.) (observing that allowing a “common use” determination to be dispositive would “lead to a host of absurd results,” cause “constitutional analysis [to] be trapped in an infinite circularity,” and, perhaps most importantly, “would effectively ignore an important underpinning of Bruen: that the meaning of the Second Amendment should be grounded in text, history, and tradition, not shifting modern attitudes, and that its protection should be categorical”). Finally, assessing “common use” at Bruen’s initial stage is an approach that has been adopted by several other courts. See, e.g., ⁣/em> United States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023) (holding that Bruen’s “step one … threshold inquiry … requires a textual analysis, determining whether the challenger is ‘part of “the people” whom the Second Amendment protects,’ whether the weapon at issue is ‘“in common use” today for self-defense,’ and whether the ‘proposed course of conduct’ falls within the Second Amendment” (emphasis added)).

That is the quiet part, out loud. If “in common use” is used correctly by the courts, then it is the end of a Second Amendment challenge, in favor of the plaintiffs. The state is terrified of that outcome.

The Seventh Circuit talks about circular definitions. I’ve even had discussions with locals about it.

Here is the actual arguments regarding “in common use is a bad argument”:

  1. New arms are not in common use, so the state can ban them
  2. An arm that was in common use, might no longer be in common use
  3. If an arm is no longer in common use, then it can be banned.


“In common use” is a shortcut to winning a challenge. If the challenged regulation is a ban case, and the arm is in common use, we win.

If it is not “in common use”, then the state still has the burden to prove history and tradition. That is a nearly impossible task. The state will then argue that this is a new societal problem or new technology, which they claim will allow them to match to more historical regulations. They still have to prove it.

If an arm is protected by the Second Amendment today, then it is protected for all time.

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By awa

6 thoughts on “The State Tap Dances”
  1. samo ol same… double speak. just like one of our “representatives “ told me they will be sure to vote against any “unreasonable “ gun control laws…

  2. As I’ve noted before … The longer the argument, the more likely it is they are attempting to justify – or obscure – reaching the wrong conclusion.

  3. OK, so let’s pretend that “in common use” is an actual measuring stick.
    Who decides what the stick measures? Where are the parameters, what are they?
    The gun grabbers can claim that 20 Million AR patterned firearms in civilian possession is not “common use” But, that is more than 6% of the population as a whole. How many EVs are there out that population wide? Per Edmunds, they account for less than 1% of the vehicles on the road. Not terribly common.
    Then again… it is stupid to fight their argument. Instead, point out clearly that Heller, Bruen, and the rest of them do not say you can ban it if not in common use, they say you cannot ban it if it falls under the 2nd. Fight that battle, and keep it focused.

    1. According to Caetano, stun guns were “in common use” when there were (only) 200,000 owned by citizens.
      Strictly speaking, “in common use” could be lower than that — all we know is that 200k falls within the “in common use” parameter — but giving a benefit of doubt the anti-rights people do not deserve, 200k is the currently-accepted lower limit.
      But I agree: don’t play that game. While it makes for a convenient shortcut (if it’s “in common use” then it cannot be banned), we need to focus on clear 2nd Amendment protections, not shortcuts.

  4. The thought occurs to me, the State should be careful what they wish for.
    One of their current arguments is that such-and-such item is not an “arm”, and therefore not protected by the 2nd Amendment. Let’s explore that for a moment.
    As a counter-argument one could say, What is it, then? The NFA and GCA categorically regulate “arms”, so it follows that if an item is not an “arm”, then it is not regulated under the NFA or GCA, nor can it be regulated under analogous State laws.
    The State says, if an “assault weapon” is not an “arm”, then it’s not protected as one. I say, if an “assault weapon” is not an “arm”, then it cannot be regulated as one. Thus, they are not subject to any “arms control” or “gun control” laws, other than normal CPSC safety guidelines that apply to everything.
    IANAL and I have no idea if this reasoning would fly in court (I expect probably not), but it’d be fun to see someone try it just to gauge how the judges react.

    1. The state is not arguing that it is not an “arm”. The state is arguing that it is not an “arm” protected by the Second Amendment. They would counter your argument with “See, we are right, the Supreme Court says that the NFA is presumptively constitutional.”

Only one rule: Don't be a dick.

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