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.

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
[Emphasis added.


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]



  1. Well of course. And by the way, the second amendment does NOT say; “…the right of the people to keep and bear arms in common use shall not be infringed”.

    To illustrate the ridiculousness, try applying it to other ostensibly protected rights:
    Congress shall make no law respecting the establishment of religions in common use , nor prohibiting the free exercise thereof; or abridging the freedom of speech in common use, or of the majority press, or the right of the most common people peaceably to assemble for the most common purposes, and to petition the government for a redress of the most common grievances.

    Of course the most obvious reason to restrict the exercise of a right to some standard of “common” is to eliminate innovation. If, since 1798, we were restricted to only the most common modes of transportation, for example, we’d be still riding horses or walking to work, even today. Thus no significantly new arms would be ever allowed under any “in common use” infringement, for if it is new, then it is by definition NOT in common use.

    It’s called the Bill of Rights, NOT the “Bill of Whatever Restrictions the Power Hungry Can Dream Up, Rationalize, and Impose on The People via Intimidation and Threats”.

    • I argue that the standard should be “arms in common use among the likely adversaries of a well-regulated militia” to underscore the purpose and intended capabilities of that militia. As adversaries update their arms, so must the arms of the militia.

  2. While it’s good to see a win…

    It took 17 years to get the first “mag bans are unconstitutional” ruling in California.

    Three more to get this one supporting that ruling.

    How many more to get an en banc? Isn’t there an open carry case from Hawaii that’s been languishing for years now waiting for one of those?

    Last I read, the ban is still in force while the state decides if it’s going to appeal and it’s likely to remain in force until the en banc makes a ruling.

    Then it’s a coin flip if the 9th en banc will uphold or overturn.

    Then a weighted against us coin toss at the Supreme Court (who probably won’t even grant cert) no matter who wins at the en banc.

    The wheels of justice run uselessly slow.

  3. Very good Lyle. Exactly. It’s just amazing how long it takes all the learned professionals to catch up to what is common knowledge to any laborer caring to take a gander. Like, it wouldn’t be a RIGHT, if someone else can control it!

  4. IF the full 9th. Circus upholds the ruling that the magazine ban is unconstitutional, this time it will ONLY apply to the 9th. District, and maybe ONLY to California, leaving other State’s bans in effect, unlike their other rulings against President Trump that they made Nation wide.

  5. I dont think that this would be a hard bar to MG due to the post 86 issue, because the Court has ruled in Caetano v. Massachusetts, 577 U.S(stun gun case from 2016), that the .gov can not use the argument that they are rare/exotic, if the reason for that is that said item was banned by the state law, and thus they were rare. Thankfully the court did not allow the .gov to use circular argument to ban things they dont like.

  6. “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”.” There are other concerns, however. Overturning the Hughes Amendment is a very difficult path.

    • Culture, political, and/or something else? Or are there legal precedents which need to be taken care of?

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