The Inherent Problem With “In Common Use”
BY Herschel Smith
2 weeks, 4 days ago
Mark Smith likes the notion of “in common use” from Heller. David Codrea points out some problems with it.
In fact, citizens reporting for militia duty were expected to bring weaponry suitable for battle, and in many cases, these men “outgunned the police,” especially when considering the standard issue for British troops was the Brown Bess musket, while patriots who owned them came equipped with more accurate and longer-range Kentucky/Pennsylvania rifles. Recall that the Founders considered the militia “necessary to the security of a free State,” and to expect their equipment would be inferior to that of attackers they were defending against would have been suicidally absurd.
The militia deployed with the intent to match and best a professional military threat. Its function was — and still is — to field citizen soldiers, and these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.
Still, apparently believing he is making his case, Feldman continues offering pre-Bruen examples of infringements, in this case citing Antonin Scalia’s wholly uncalled-for concession that “Like most rights, the Second Amendment right is not unlimited. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
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… we ignore the first 13 words of the Second Amendment at our peril. Feldman takes full advantage of that, writing “Today, the Second Amendment applies to all weapons that ordinary people carry on an ordinary basis for self-defense … Logically, it should also exclude AR-15s, which are not commonly carried for self-defense.”
Logically it shouldn’t. But unfortunately for gun owners, too many influencers ostensibly on “our side” won’t explore the militia aspect …
David is correct, of course. “In common use” has nothing whatsoever to do with military utility, and machine guns should be covered under the second amendment for all men.
Scalia had to make the second amendment palatable for the inside-the-beltway types, as I’ve observed before.
Despite the Court’s confident pronouncement, it is not at all clear that the Second Amendment was meant to protect a personal right of self-defense. It is, however, crystal clear that the Amendment was meant to protect the right to keep and bear arms to resist tyranny-as the Heller Court itself concedes. Yet strangely, by the time the sixty-four-page opinion has wound to an end, the Court has purged the Amendment of its revolutionary quality. Justice Scalia’s opinion never hints that the right to resist tyranny might still be alive and well and relevant to the Amendment’s interpretation, and it lays down rules that will make the right a functional nullity.
As a result, the opinion has an odd quality. Justice Scalia insists that he is being true to the language and history of the Constitution. Yet by the close of the opinion, the purpose that clearly and plainly appears in the language and history-the right of resistance-has disappeared, but the right of self defense-which is much less clearly present, if present at all, in the language and history-has taken center stage.
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Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.
I have no problem at all making Heller about self defense – as long as it is understood holistically. That self defense should be about defense against individuals and state actors, whether foreign or domestic.
It’s not an either-or relationship. It’s a both-and relationship.
On August 26, 2024 at 8:29 pm, Herschel Smith said:
David also responds to a great comment by someone who calls himself DDS. It’s worth almost as much as the commentary by David.
I would lift it all and reproduce it here, but I don’t own the comment and that would prevent you from visiting David’s article.
On August 26, 2024 at 10:48 pm, Dan said:
What part of SHALL NOT BE INFRINGED is so damn complicated.
The Second Amendment is about as clear, straightforward and uncomplicated
as any statement in the history of civilization.
On August 27, 2024 at 9:54 am, Longbow said:
Scalia’s phrase, “in common use” was lifted from Miller. In Miller, the Court held that, in the founding era, Militiamen were required to show up for duty bearing arms, provided by themselves, and of the type in common use at the time. So a young man shows up for militia duty bearing a ten gauge duck gun. Would that arm be useful for militia duty? Maybe, if they could find a use for it. Would that gun be the type used commonly for militia service? Probably not. More typically, he would show up with his privately owned arms, a .69 caliber musket with sixty rounds powder and ball, perhaps a bayonet, perhaps even a pistol.
To interpret this so narrowly as to exclude everything of military usefulness, is to pretend Miller doesn’t exist as precedent.
The type of arms SPECIFICALLY protected are arms which have something to do with a well regulated Militia. The reason the Court allowed Miller’s conviction to stand is that NOBODY showed the Court any EVIDENCE that a short barreled shotgun, in 1939, was a militarily useful weapon. Had he been charged under the NFA with possession of a BAR or a Tommy gun, his conviction would have most likely been overturned.
Was Scalia’s language more moderate than I would have liked. Yes. But, he cited the language in Miller as precedent. Believe it or not, if used properly, it is a good precedent. Now with Bruen, Miller becomes even more clear. Show me where and how, in the Founding Era, ANY government of ANY State, tried to or successfully did, ban the private possession of militarily useful weapons. Show me.
Gentlemen, Miller makes the entire NFA a house of cards. It always has been.
On August 27, 2024 at 11:10 am, MTHead said:
Something that seems to be missing is the fact that the 2A is in the “Bill of Rights”. Since when can it give power of any kind to the government? Rights are for humans. And our forefather knew that when they wrote it.
If I own the bicycle. But you get to control when, where, or if, I get to ride it? I don’t have a right.
As Dan mentions above; What part of 2A is so damn complicated? None of it, actually. Except the part where communists are trying to disarm you, and have you go along with it.
Other than that. Everyone, including the communist judges/lawyers making up this whole judicial shit/clown-show know exactly what it says and means.
Their scared shitless we will understand and take it to heart.
There’s never any power in saying yes. Only in saying no. For them, the real problem is that 2A says we don’t have to ask their permission in the first place.
We are under no obligation to suffer usurpation. King and court be damned!
On August 27, 2024 at 11:28 am, PGF said:
I’ve argued (with the wind, apparently) for years that “in common use” would essentially outlaw technological advances in firearms for “civilians.”
On August 27, 2024 at 12:17 pm, X said:
“Common use” is a fraudulent standard invented by Justice McReynolds in his opinion in U.S. v. Miller, upholding the NFA.
McReynolds was something of a Fudd, a Kentuckian who went duck hunting on the Chesapeake when he moved to Washington. So he wrote the decision to protect the type of guns he personally used, i.e. sporting shotguns and the like.
Taken literally, the “common use” standard would totally protect a full-auto M-4 with a 30-rd mag, because that is what is commonly issued to soldiers today. To the contrary, it could also outlaw the .22 Long Rifle and the .38 K-frame revolver, because neither had been invented and were thus not in common use at the time of the Founding.
The text of the 2A is clear. What the courts have done is rewritten it. It says nothing about assault weapons or machine guns or “dangerous and unusual” weapons or common use.
On August 27, 2024 at 2:06 pm, scott s. said:
Don’t know if Mark Smith has commented, but Kansas Federal District judge John Broomes issued a ruling on 21 Aug dismissing a case brought against a Tamori Morgan for possession of a machine gun in violation of 18 USC 922(o).
On August 28, 2024 at 8:56 pm, Scott in phx said:
Scalia appears to have ignored Miller except insofar as to show that Miller didn’t contradict the findings of Heller
That may be because the implications of Miller in light of holding that the 2A protects an individual right to arms could lead where at least some of the justices didn’t want to go
Recall that in oral arguments Gura (I believe unbidden) said “we are not talking about machine guns here”
It is very possible that if the hint of the idea that Heller would make machine guns legal Scalia might not have gotten 5 votes
So, the “common use” test was an easy way to avoid that “M16s and the like” are “arms” (they are fire”arms) and that the holding of Heller in protecting the handguns (and functional long guns) would not also overturn the NFA and legalize machine guns
Now I’m not sure why Mark Smith loves the common use test so much. It does work for handguns in Heller of course and really shouldn’t torpedo any decision on semi auto rifles (until that happens it is a question though knowing the court can do what it wants)
But it is not an intellectually impressive test
Obviously weapons that are in common use are almost certainly arms but to be an arm the weapon doesn’t have to be in common use
M16s are fire”arms”. I think Heller was structured as it was to get around that issue