Commonality is determined largely by statistics. But a pure statistical inquiry may hide as much as it reveals. In the Second Amendment context, protected arms may not be numerically common by virtue of an unchallenged, unconstitutional regulation. Our colleagues in the Third and Seventh Circuits agree. See ANJRPC, 910 F.3d at 116 n.15 (common use alone “is not dispositive” because of an unconstitutional regulation restricting the quantity of protected arms in circulation); Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (“[I]t would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.”). Thus, “[w]hile common use is an objective and largely statistical inquiry, typical possession requires us to look into both broad patterns of use and the subjective motives of gun owners.” New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir. 2015) (“NYSRPA”) (internal alterations and quotation marks omitted). As discussed earlier, nearly half of all magazines in the United States today hold more than ten rounds of ammunition. And the record shows that such magazines are overwhelmingly owned and used for lawful purposes. This is the antithesis of unusual. That LCMs are commonly used today for lawful purposes ends the inquiry into unusualness.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
VIRGINIA DUNCAN; RICHARD LEWIS; PATRICK LOVETTE; DAVID MARGUGLIO; CHRISTOPHER WADDELL; CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., a California corporation, Plaintiffs-Appellees, v. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendant-Appellant
August 14, 2020
If upheld this eliminates the concern about machine guns being unprotected via Heller because they have been (essentially) banned since 1986 and hence can’t be considered “in common use”.—Joe]