“Common Use” Excludes “Dangerous and Unusual”
BY Herschel Smith
1 year, 10 months ago
A friend sends this along (“Dangerous and Unusual: How an Expanding National Firearms Act Will Spell its Own Demise”), written almost as if prescient concerning the ATF circus on braced weapons.
In what must have been an allusion to the NFA, the Court found support for this common-use formulation by recognizing the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'” Removing the double negative, the Heller rule provides that the Second Amendment protects weapons in “common use” and those “typically possessed by law-abiding citizens for lawful purposes,” but not those that are traditionally thought to be “dangerous and unusual.” What could follow from this formulation is concerning – if the legislature or an executive agency can make a certain type of firearm sufficiently rare to the point that the citizens do not typically possess it for lawful purposes, the firearm presumably loses Second Amendment protection. Using this exception, the Heller Court carved the NFA out of its common-use formulation, granting deference to historical prohibitions and a presumption of constitutionality therefrom. In short, the prevailing [*288] understanding of 2008 was that weapons that are “dangerous and unusual” are antithetical to being in “common use” or even “typical,” at the very least. However, “dangerous and unusual” must be treated as a rebuttable presumption, as it is possible for weapons that once fell into this category to gain such popularity through legal acquisition so as to become quite typical – and indeed common.
I think it’s obvious that the ATF has an uphill battle in court. Doubtless there will be some lower and appellate courts who side with the administrative state, but in the end, this will all have to be rectified at the supreme court. If they are true to their previous rulings, this brace ruling will be overturned.
The case against the ATF is clear enough just from the Heller court. After Bruen, it’s really difficult to imagine why the ATF would be doing this if it were not for political pressure (and the existence of crackpot nutcase Merrick Garland).
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On January 26, 2023 at 7:26 am, Bill Buppert said:
Zombie Scalia gave us the “dangerous and unusual” nonsense because apparently he thought common use only applied to civilian firearms when a concurrent reading of the 2A must include military weapons due to the very purposes of parity and capability to match the tyrannical potential of the state and its collective weapons armory.
Despite the weak-kneed defense in 1939 US v. Miller, this parity in military weapons is a constant motif in the original language and understanding.
The legal expense for fighting this should be taken out of the total ATF budget and then zero out the agency.
If only the founding lawyers had reversed the clauses in the 2A…
On January 26, 2023 at 12:02 pm, J said:
Dangerous? To whom? Unusual? In what universe?
Get rid of the 3 letter agencies they are extra-constitutional and therefore outside of the law.
On January 26, 2023 at 1:19 pm, PGF said:
I thought Bruen was the most recent SCOTUS case. Why are people still discussing common use?
On January 26, 2023 at 4:02 pm, scott s. said:
Not sure where BB gets implication that “common use” implies civilian? We don’t have Scalia around to ask. At any rate at the time of the founding we could argue that rifles were in common civilian use, but not military. Does that mean smoothbore musket was not in “common use”?
But in the late 1800s short-barrel “trapper” carbines were in use, though I don’t know if you could call them common, wouldn’t say rare as they were in regular commercial sales channels.