“In Common Use” Versus Militia
BY Herschel Smith
David Codrea has a great find on a recent petition for writ of certiorari before the supreme court concerning D.C.’s limit on magazine capacity. Here is the document.
But by rewriting Heller’s “in common use” test to add a dangerousness element, lower courts have continued to interest balance under a different name. At bottom, lower courts have decided that criminal misuses of firearms (as in mass shootings) justify complete bans on certain arms. They then use questionable analogical reasoning to justify that result. Both Heller and Bruen already rejected that sort of “subjective dangerousness” reasoning, and the Court should do so again here. And while the majority below said that the plus-ten magazine ban was comparable to laws that addressed weapons capable of unprecedented lethality, it could only get there by limiting the Second Amendment solely to individual self-defense. Viewing the Second Amendment through the correct lens—that it protects the right to bear arms for community defense, too—the historical analogues the majority relied on below fail.
The decision here shows that analogies under Bruen are helpful only when courts have an underlying theory about how to identify the relevant similarity. Unfortunately, many courts still don’t grasp the underlying principles of the Second Amendment.
[ … ]
By adding a dangerousness test designed to override the “in common use” test, courts have adopted “the very sort of means-end scrutiny that Bruen explicitly forbids courts from applying in the Second Amendment context.” Bianchi, 111 F.4th at 479 (Gregory, J., concurring). Nothing has changed except that courts now “cloak[] interest balancing under the guise of ‘tradition.’” Duncan, 2025 WL 867583, at *47 (Bumatay, J., dissenting) (comparing Ninth Circuit’s analysis pre- and post-Bruen and noting “little” change). Worse, “even the regulations that failed in Heller or Bruen would survive” the lower courts’ dangerousness test. Id. at *52 (VanDyke, J., dissenting).
Even if analogies were necessary here, they weren’t used correctly. To analogize well, courts need to know the Second Amendment’s purpose. Heller confirmed that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Although Heller clarified that the Second Amendment covers individual self-defense, it noted other lawful purposes for keeping and bearing arms, such as preserving the militia and hunting. Id. at 599. But after Heller and Bruen, courts have narrowed the Second Amendment to protect only keeping and bearing arms for individual self-defense against crime.
This petition is very well written. I wish it had been written for AR-15 bans and they had petitioned the court to hear Snope.
I commend this for your reading today. It smashes the “in common use” test as applied only to individuals. It specifically states what we all know and need to be addressed. The court either recognizes the role of militia or it doesn’t. If so, then good. If not, then they will have completely given up any legitimacy to caring what the words of the 2A say.
On April 1, 2025 at 7:57 pm, X said:
“Common use” is pure dicta ginned up by McReynolds in U.S. v. Miller. The Second Amendment says no such thing. Scalia cited the “common use” nonsense — and added “dangerous and unusual weapons” — in the Heller opinion because he did not want to overturn the NFA. Consequently Heller is flawed case law, it has actually been used to revoke gun rights in NY, CA, WA, IL, and MA.
Membership in a militia, or whatever weapons the militia des or does not use, is irrelevant. The text off the Amendment is clear as day — the MILITIA shall be “well regulated,” but the right of the PEOPLE “shall not be infringed.”
On April 2, 2025 at 7:08 am, george 1 said:
The USSC has given up legitimacy in the 2A and many other areas. In recent times this was plain for everyone to see when they came to the conclusion that mandated health care is right there in the Constitution.
It is funny to watch as Amy Coney Barrett reveals herself to be not only a deluded liberal but a raving lunatic who belongs on the view. We will get no help from the USSC.
On April 2, 2025 at 2:06 pm, MTHead said:
No, the real cooker here is that the court has to be petitioned for such a thing at all.
2A is in the “Bill of Rights”. Not the bill to ask government permissions of.
Therefor it can only be viewed under individual terms. Nothing collective in it. As in “dangerous class of weapons.”
Militia regulation has to be viewed in the same light. Individual people practicing in groups.
And the thing no one talks about. Is it tells ALL government they have NO say in what or how that happens. “shall not be infringed” is speaking to government, is it not?
And it’s only limiting factor could possibly be is something that isn’t “bearable” as an arm.
If there is a legal scholar in the world that doesn’t conclude that?
They’re “not-with-standing” in any court of America. Their private citizens shoving communist crap down our throats.
And need to be viewed as such. As they are exactly what the 2A was warning us about.