About that “common use” argument

Sometimes anti-rights cultists use the “2nd Amendment only protects guns in common use” canard in their efforts to ban or limit their vaguely described “assault weapons.” Seems the AR15 is becoming what can easily be described as “common.”

Short version: Gun production up 32% overall (to about 8.3 million produced domestically), and production of AR15 variants more than doubled in 2012 from the previous year, “825,000, not counting the large numbers made by Remington, Bushmaster and Sturm, Ruger” (italics in original, not sure why they excluded them or didn’t give a total). In any case, that’s a metric boatload of bean-launchers, and somehow I doubt it all rednecks buying second or third ARs.

With numbers like that, sort of hard for the gun-Nazis to claim they are winning much of anything.


19 thoughts on “About that “common use” argument

  1. I thought the usual form of the “common use” argument is “in common use in 1791”.

    Of course, that’s easy to defeat — just ask if that means the 1st amendment only covers free speech through media in common use in 1791.

    • The “1791” argument is one form, but the other, slightly less easy to dismiss form, is about common ,in general, because who can object if only a few fringe nut-jobs are affected by the regulation? It is easier to slime a tiny minority, or at least portray them as a tiny minority, than it is to sell pissing in everyone’s oatmeal as being necessary. The more people that own an “evil black rifle,” the harder it will be to paint them as fringe loons.

    • Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.



  2. Marlin Model 60. Arguably the second most popular .22 semi-auto rifle in America (behind the Ruger 10/22). I daresay that qualifies as ‘in common use’.

    Posit: Joseph Pelleteri has cause to seek a reversal of his 1996 conviction* on grounds that the law he was convicted under runs afoul of 2A constitutional protections. To wit:

    “..Miller’s holding that the sorts of weapons protected are those “in common use at the time”…”**

    “Defendant, an expert marksman who at one point was employed as a firearms instructor, won a Marlin semi-automatic rifle in the late 1980’s by placing first in a police combat match. An avid gun collector, defendant placed the weapon in his safe. Defendant claimed that he neither inspected nor used the firearm. When the police recovered the gun from defendant’s residence in December 1993, it still had the manufacturer’s tags and the owner’s manual attached to the trigger guard. The owner’s manual indicated that the rifle could hold at least seventeen cartridges. Defendant claimed that he never read the manual. While conceding that he knew the rifle was a semi-automatic weapon, defendant contended that he was unaware that the firearm had a magazine capacity exceeding fifteen rounds.”


    The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)


    It won’t get him back lost time, but he’d be a free man once again. (see: legally able to own guns, vote, and all the other stuff that the scarlet letter ‘F’ denies you)

  3. “Common Use” is a bit of a cop-out as it demands a product freeze.

    The S&W M&P is probably one of the most common pistols in American holsters, be they private citizens or Law enforcement.

    This has supplanted the Glock, and the 1911 before that.

    If Heller had gone down in 2005 when the M&P was first rolling of the line it wouldn’t have been “In common use”, and would be subject for restriction. But from a technology standpoint it is nothing more than a refinement of existing technology.

    • Oh, I agree entirely. The point being, though, that it makes the gun-bigots look (even more) foolish when they are trying to ban something like a semi-auto 22 with a 17-round fixed magazine when a .223 & 30-round mags have been deemed allowed. It’s not that it puts them in a stupid spot, it makes it absurdly obvious to all but the dimmest and most hateful individuals (and politicians, but I repeat myself).

    • I’d even argue that the 1934 NFA artificially prevented certain firearms from becoming ‘common use’ and the argument that automatic arms are not in common use now is only because of prior law.

      • Especially when “Miller” was wrongly decided — in part because the attorney for the defendant didn’t show up in court (and didn’t face any consequences for that dereliction of duty).

        • Miller wasn’t wrongly decided — it wasn’t decided AT ALL. SCOTUS punted back to the lower level for a rehearing.

  4. Common Use is just flat wrong when talking about firearms that all work by similar principles.

    How do we ever get new or refined firearms if someone has to make the very first one and by this definition of rare they would be vulnerable. Sorry SCOTUS but the Constitution does not set this limit nor does it discuss balancing the interests if the state vs the citizen. It explicitly says hands off.

    When my phaser, rail gun, disruptor, or ray gun is finished it will have the same protections as my firearms. The government can go pound sand now and in the distant future on this already settled topic.

  5. Hmm……

    Common use.

    So…just how many automatic weapons are in private hands?

    Especially as a percentage of all gun owners……that would be more ….common….then we think. AND you must include all automatic weapons owned by dealers.

    • Precisely. And “arms” was NOT limited to just “weapons”, even in the 18th Century.

      When you mustered a regiment, you had to ensure you had a “stand [“set”] of arms” for every single soldier, and that included everything a soldier needed in combat except his clothes. (Militia regs added more things to muster requirements, like specifiying food, blankets, etc..)

      A modern definition of “arms” would include:

      1. A military grade rifle or carbine. By international consensus, it is easy to see that this must be, AT A MINIMUM, a semiautomatic detatchable magazine rifle, and generally speaking should be a selective fire detatchable magazine rifle.

      2. Plenty of magazines of standard capacity (generally, about 20 rounds for larger calibers, 30 rounds or so for smaller calibers).

      3. A bayonet fitting the rifle.

      4. A pistol, with spare, standard capacity mags (yes, even in the 18th Century, a “stand of arms” often included handguns — for example, for ALL soldiers in ALL Highland regiments. . . the pistol is also analogous to the standard infantry sword that was STANDARD for ALL soldiers in ALL infantry regiments until quite late in the period the Bill of Rights was written).

      5. Body armor, including a helmet. Given that body armor use is pretty much universal in US military infantry service, and is becoming so in First World militaries, yup, a decent vest & helmet are “arms”, just like they were before being albeit for a long time – obsoleted by advances in gun technology (mostly propellent advances) around the time of the Thirty Years War.

      6. Gas mask, with military grade filters.

      7. An IFAK or equivalent – at a minimum a TK and pressure dressing.

      8. Eye pro.

      9. Webgear to carry all this crap.

      _ALL_ of this stuff would be listed as “arms” without ANY question, if you took any military veteran from the late 1700’s, transported him in time to today, and showed him what our soldiers and Marines carry today in battle. (There might be quibbles about certain support weapons — note, “cannon” were NOT considered “arms”, but rather “pieces of ordnance”. A case can be made that crew served stuff would likewise be “ordnance”, not “arms”.)

      (Add in the analogues to the various militia acts concerning what to bring to muster, and you pretty much are talking about equivalents for the REST of the TA-50 issue, like rucksacks, canteens, snivel gear, and rations.)

      • Note that question concerning “arms” of a military sort can be answered by simply looking at what AT A MINIMUM, we expect a generic combat arms soldier to carry in a combat zone, and keeping in mind that sidearms (note the root word) were ALWAYS included in any definition of “arms” in the 1780s.

        When the Army and Marine Corps issue phasers as standard individual weapons, then THOSE will also be “arms” for Constitutional purposes.

        • That’s why I said Miller was wrongly decided — because it held short-barreled shotguns were not common arms, even though a few minutes of investigation would have shown that they were. But since the scum “lawyer” for the defendant didn’t bother to show, no such evidence was introduced.

          Halbrook has the ugly details, if I remember right.

          • Oh, I’ve read Miller, including the background.

            SCOTUS didn’t decide it wrongly by refusing to do any study. They are SUPPOSED to rule on what gets presented before them, not make like Matlock.

            Note two key things about Miller:

            1. The case was DELIBERATELY manipulated by teh government and an antigun judge to try and get SCOTUS to rule that the 2nd Amendment was a collective right and no individual RKBA exists.

            2. Even without the defense present to challenge ANYTHING or present ANY evidence, how they ruled — they utterly rejected the government’s collectivist arguments and remanded for a hearing on whether or not an SBS is militarily feasible in a militia setting. This axiomatically presumes that if, on remand, the lower court hears that an SBS is a militarily valid weapon for a militiaman, Miller’s acquittal on appeal would have been reinstated.

            SCOTUS got it as right as they COULD have, given what they were GIVEN.

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