Quote of the Day
The fact that the cutting edge of firearms technology can shoot off in directions old laws never foresaw is inevitable—so, it seems, is the predilection of gun-control types to try to ban anything new.
Frank Miniter
May 6, 2025
How Innovations from Firearms-Related Companies Impact Our Freedom | An Official Journal Of The NRA
Well, of course anything new. Because they want to ban everything. Everything old, everything now, and everything new.
How about we stick with laws that don’t need to be updated?
Thou shalt not murder.
Thou shalt not batter.
Thou shalt not assault.
Thou shalt not steal.
Thou shalt not deface.
Thou shalt not invade.
Thou shalt not extort or defraud.
Thou shalt not cause damage through recklessness, stupidity or negligence.
Thou shalt surrender peacefully to the police before your victims, their family or friends catch up to you, for that is the last chance you have to have neutral justice done upon you for your crimes.
Thou shalt leave those in police custody alone.
See? I could have written those in Greek or Latin or Babylonian. No need to update them.
When Colonel Mustard does the murder in the Ballroom with the Lead Pipe, the Ballroom and the Pipe are the least important parts of that statement.
Exactly. Thank you.
Crap don’t need to be complicated. Criminals make it that way on purpose.
… so, it seems, is the predilection of gun-control types to try to ban anything new.
This illustrates the fundamental weakness in the Heller ruling.
Anything cutting-edge new product or innovation is, by definition, not (yet) “in common use”, and therefore could be banned under Heller. Caetano attempted to put a number on “in common use” — and IIRC set it at 200,000 units sold; clear that threshold, and it’s “in common use” — but until then, it could be prohibited if caught early enough.
Bruen ostensibly did away with “in common use” and replaced it with “text, history, and tradition” in no uncertain terms; Heller also mentioned text, history, and tradition, but the “in common use” phrasing left a loophole big enough to pilot the U.S.S. Enterprise D through, with room to spare … and which the prohibitionists were all too happy to exploit.
I think there’s a structure to make the “in common use for lawful purposes” test work. The whole phrase and context from the SCOTUS decision is important.
For the purpose this discussion, we’re going to consider the legality of the SPATULA.
Of all the people in the world that have never possessed a SPATULA, there is no evidence of how they would use it. There is, in fact, an absence of evidence. So, we should set that portion of the universe of all people aside for this discussion.
That leaves us with the universe of people who have ever possessed a SPATULA, including those that possess one presently.
Of that population, how many have used the SPATULA for an unlawful purpose? It is a very fraction, and even within those that have used it unlawfully, did they only use it unlawfully? The exclusively-unlawful population is even smaller. Thus we can see that the common use of the SPATULA is for lawful purposes. Furthermore, we could also see that the exclusively-unlawful population would similarly have unlawfully used an EGG WHISK or a POTATO MASHER. It is not appropriate to ban the SPATULA from use by the general public because they can and do use it lawfully and productively.
So, what’s the alternative example? Let’s consider the FOOT CRUSHER. A FOOT CRUSHER is a shoe sized device with screws on it, that, when progressively tightened, squeeze and ultimately break the bones in the foot and grind them against each other. How the people that don’t own one would use one, we couldn’t say according to actual evidence, but we have some strong suspicions. Of those that do possess one, how many use it? Presumably there is a population that possess but don’t use, perhaps for collectors’ purposes. Of those that use, is it for a lawful purpose? Overwhelmingly not. It is a rare subset of users that have found an alternative purpose for it that is lawful. So its common use is unlawful purposes, and so much so that it would be good evidence that a possessor was up to no good absent other evidence, like a museum display with explanatory text regarding a collection of dedicated torture devices.
So, that’s two extremes. Let’s try something in the middle ground: LOCK PICKS. Plenty of people possess LOCK PICKS for lawful purposes. Locksmiths certainly do. Plenty of non-locksmith people also do for challenge and other not-unlawful purposes. I have a set on me right now, and that’s not unusual for people in the IT security space as there is a physical security component. There is a group called The Open Organization Of Lockpickers (TOOOL) that has espoused principles of ethical and legal lockpicking. In accordance with those principles, I have been asked to pick a lock, but my condition was that they gifted me that lock, so I could pick the lock I now owned and remove it from their equipment. Finally, there are criminals that pick locks in the unlawful act of burglary, although bashing the door off the hinges or breaking a window is much more common. So, should they be banned? Of all the people that possess them, there is a higher fraction of unlawful use, but the most common use is lawful. So, possession shouldn’t be banned, but in combination with other factors such as being in the vicinity of a burgled building with a picked lock, that might be probable cause for a search.
Your proposal in your last sentence is reasonable, but would never be adopted because it requires thought, logic and reasoning by Police. Far better for them to merely ban the item so a simple (and simplistic) syllogism can be worked. Is it present? It is illegal, therefore arrest the person. If they can’t get out of a locked room or cage before the area floods and they drown, that is the cost of keeping everyone (else) safe.
You make a good point, but I think the problem is that SCOTUS was not perfectly clear in Heller what they meant by “in common use for lawful purposes”.
I do like the idea of taking the population who owns the item in question and asking, “Among those who possess them, are they more commonly used for lawful or unlawful purposes?” And judging accordingly. (The allegory of lock-picks is valid; it’s a safe bet that among those who own them, the vast majority use them professionally [e.g. locksmiths and security folks] or as a private hobby, and only a relative few use them for unlawful purposes.)
But the more-generally accepted meaning is, “There’s enough of them in circulation, owned and possessed mostly for lawful purposes, that banning them is impractical-to-impossible and a deprivation of property to those who own them,” with the side-effect that new/novel items that are just starting to be sold and circulated are NOT “in common use” for ANY purpose and so may be banned.
I’ll have to re-read that passage in the Heller decision to see if it can be interpreted your way, but I don’t believe the context points to that.
Citizens should be able to legally posses anything that is commonly used by police forces.
Law enforcement organizations are not the military. They are civilians.
Citizens should be able to legally possess anything that is commonly used by the military.
Law enforcement organizations are not the military, but armed citizens are the militia, which is recognized as being “necessary to the security of a free State”.