Second Amendment will be Nullified if ‘Common Use’ is Restricted to ‘Popularity’

2nd Second amendment Preemption Photo Courtesy of Jeremy Tremp for NRA-ILA
Only proponents of a dystopian future will demand technology render an armed citizenry obsolete. Photo Courtesy of Jeremy Tremp for NRA-ILA

U.S.A. – -( “The Second Amendment protects modern weapons,” Judge Roger T. Benitez observed in his landmark Miller v. Bonta ruling striking down California’s so-called “assault weapons” ban. He was citing Caetano v. Massachusetts, a 2016 United States Supreme Court decision vacating a woman’s conviction for carrying a stun gun for self-defense.

“The Court has held that ‘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,’” the High Court, citing the Heller case, unanimously held. “In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining ‘whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.’”

Aside from the obvious, no-nonsense assertions of Founding-era voices such as Tench Coxe (“every terrible implement of the soldier”) and James Madison (see “militia” observations in Federalist No. 46), it helps to understand another gun-grabber lie, that the Founders only had single-shot muskets and couldn’t have imagined technological advancements leading to more lethal weaponry.

Firearms technology from long before their time included Fourteenth Century multiple-barreled volley guns and a design by Leonardo DaVinci for a rotating triple-barrel breech-loading cannon. The Founding Era had already seen pepperbox revolvers, Kentucky/Pennsylvania rifles, cartridges to combine shot and powder, the British breech-loading Ferguson rifle, the 11-cylinder crank-operated Puckle gun, and the Girandoni air rifle, capable of firing 22 .46 caliber balls and that had actually been used by the Austrian army 11 years before the Bill of Rights was ratified. And the above is by no means an exhaustive list.

The Founders were enlightened men, schooled in classical, political, and legal history, aware of current developments (and in cases like Thomas Jefferson and Benjamin Franklin, innovators and inventors themselves), and visionaries with eyes toward the future, and to “secur[ing] the Blessings of Liberty to … Posterity.”

Oblivious to that, Constitutional and historical illiterates, like the head of the oxymoronically named “Texas Gun Sense,” are getting ink spreading astonishingly ignorant assertions like “There weren’t automatic weapons or 100-round magazine capacities in the guns 100 years ago.” And, like useful idiots, they’re making such moronic pronouncements for Chinese communist propagandists (who want Americans disarmed and live Chairman Mao’s maxim that “Political power grows from the barrel of a gun”).

That’s bad enough, but the grabbers then bring those arguments into court cases and equally corrupt judges then create “settled law.”  As the Brady Center argued in a brief supporting the State of Maryland’s semiauto and magazine ban:

“Suppose, for example, that a new, unregulated and highly lethal weapon were developed before a statute was enacted. When first offered for sale, the weapon would not be protected because it would not be in common use. However, under Plaintiffs’ theory, if sales of the weapon grew explosively over the next year, prior to any legislation, then the weapon would, within that short time frame, become constitutionally protected, even though a ban would have been permissible had the legislature acted just a few months earlier. Such an approach makes little sense.”

That’s the crux—if new developments in weaponry can be denied to We the People, then it’s just a matter of time before the disparity between what the government has and what the people have will be as wide as if we were relegated to Brown Bess muskets and flintlocks against modern infantry. Unless “in common use at the time” is held to mean by soldiers in the field, with real “weapons of war,” as opposed to a sporting arms popularity contest,  the Second Amendment will be nullified as a last-resort defense against foreign and domestic tyranny.

To argue otherwise is to argue the Founders thought sending an outmatched yeomanry to their slaughter was “necessary to the security of a free State.” That’s insane.

We’re well on our way along with that, though, notably with the National Firearms Act restricting the transfer of militia-suitable arms to tribute-paying supplicants meeting overlord approval, and the illegitimate (whether a real vote was taken or not) Hughes Amendment denying post-1986 select firearms to all but government troops and enforcers. I’d argue that one of the most in-your-face tyrannical phrases ever constructed is:


“Things to Come” was my Second Amendment column in the January 2002 issue of Guns & Ammo magazine. I wrote a bit about the bans but focused on developing technology, definitely stuff the Founders would have never imagined — as if that’s supposed to make a difference. I always began those articles with a quote to set the tone, and for this one, I borrowed from H.G. Wells in The Shape of Things to Come:

“We have declared the Declaration of Independence is inoperative…”

How that could happen isn’t hard to see.

“It’s the difference between a bow and arrow and a modern rifle,” I quoted an executive describing his company’s Objective Individual Combat Weapon System, a weapon that could “hit targets completely behind barriers.”

I cited articles on supposedly “less than lethal” microwave weapons that could burn the skin or temporarily blind, or “tetanize” (paralyze skeletal muscles). If stun guns are “protected,” why wouldn’t they be?

But who needs phasers set on “stun” when the real thing is being developed to vaporize targets Star Trek-style, along with assurances that “advances will be made and power plants will be shrunk and one day it will dominate the battlefield”?

Since when have rayguns not been seen as the great future equalizer, and who thinks keeping them away from the bad guys will work any better tomorrow than what we see happening today?

“Just remember, not so long ago your pocket calculator would have filled a room, requiring programmers, technicians and keypunch operators, and cell phones, laptops, and GPS units would have been considered no more plausible than … paralyzer beams and death rays,” I wrote. Unarguably, those advances are now all “in common use.”

“It’s been said a battle isn’t won until a man with a rifle occupies and controls the field,” that article concluded. “Someone probably once said the same thing about spears.”

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

David Codrea

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SBR’s are in common use, as are submachine guns. Just like tasers, they are protected. SCOTUS ruled it so, stating 200,000 in the hands of Americans defined common use. Time to take back our right, and get rid of the NFA and every statute that attempts to regulate our right to keep and bear arms. Anything appropriate to militia use is protected per Miller, the original.

Heed the Call-up

I was going to comment about the line, “SBRs and SBSs are sold over the counter as regular firearms.” SBRs and SBSs are regular firearms, just because our government tries to make appear to be somehow more dangerous than any other firearm and created laws to regulate them, does not change their basic characteristics. That is akin to the Clinton era ban on “assault weapons”, which arbitrarily banned certain firearms, mostly due to their being black.


Suppressors are sold over the counter too, totally in common use, millions out there. You buy it, then give it back and wait in jail for 6-14 months to take possession. All gun laws are infringements.

Roland T. Gunner

Why’s it always gotta be a black thing?

Heed the Call-up

I believe it is due to the nature of “gun control” having racist roots, and its being discriminatory. I can only comment on the reality of “gun control”, not on what others perceive it to be.


lol… wrong article.

Heed the Call-up

Yes, I see that, but my comment still fits this thread, too.


outstanding article and right on point!

Roland T. Gunner

Excellent article, Mr. Codrea.


This article highlights one aspect of Saint Benitez’s genius. Don’t remember which of his rulings, but in at least one of his rulings he obliterated state argument that something (“LCM”s or “assault weapons) were not common in California. He essentially said that if something is not commonly owned, but there are indications it would be if not for long standing prohibition – then it qualifies as common. I would argue that if something is generally owned for common purposes, then it is commonly owned. A man portable ray-gun would (at least initially) be a variation of semiautomatic rifles. One trigger… Read more »


who gets to say what is common? leftists are always attempting to change the definition of words, i.e. antifa are actually fascists, and “common” is another. burning, looting, property destruction, assaults and murders are peaceful protests. need i go on. just like magazines, who gets to say what is a large capacity, and how many rounds that is? one is larger than zero. standard is what the manufacturer designs and ships with the firearm in the majority of states. progressives/leftists are afraid that they won’t be able to enforce their radical totalitarian agenda if people who are opposes to it… Read more »

Roland T. Gunner

If not for the NFA, every AR-15 ever manufsctured gor US sales would have included that dreadful giggle switch. Why not have it, its use is not mandatory.

Ryben Flynn

I’m getting REALLY annoyed with “Awaiting for approval” on comments that are not in any way controversial.

Ryben Flynn

BTW, the comment that was in jail is below.


Look, it’s very simple.

We have God-given Natural Rights.

These rights are not subject to what is popular and what is not.

Since we are not born weaponized like the American Bald Eagle, we have a right to become weaponized as we choose. No one can interfere with that right.

And we have the right to use those weapons to defend Life, Liberty, Property — and our Republic whether anyone likes that or not.



And just to remind the Harold-types, infringed means:

No Interference or Not to be trifled with.


JESUS said nothing like that. If that simplistic, groveling, authority-worshiping POV prevailed in 1775, even among preachers, you’d be a subject of the King of England right now, since he was “the ruler appointed by God”. Fortunately, Christian preachers rejected that mindless POV. They believed in obedience to righteous authority, righteous rulers.

And that crap about rulers not being a terror, and being appointed by God to fight evil, tell it to the 100 million innocents terrorized and murdered by their own governments in the last 106 years or so.


Hey Schart, I didn’t say it was simple. Someone else did. Your brain’s misfiring off the map as usual. Lay off the mescaline. I know what Jesus said in the bible from Matthew, Mark, Luke & James. Nothing He said implies what you think. “The” bible wasn’t published by God. It was published by men in power. Emperors. Hence the diff between Catholic & Protestant bibles, and the ‘apocrypha’. The authority-worshiping crap is self-serving. If anyone’s putting words in His mouth, it’s you. So who’s blasphemous? You are. Now bend over & Schart some more self-righteous diarrhea on the screen.… Read more »

Last edited 1 year ago by Russn8r

Troll says troll, still evading. At least you pinched it off this time, Schart Boy.


You win the Cut & Paste award, Schart Boy


WHERE did this guy come from?


Look, it’s Johnnyboy, the all-knowing. He can cut and paste from the Bible, as well as the Federalist Papers! He can paste like a pro, and pretends it makes him smart! He actually believes he is right, and that he is teaching us! His delusions of grandeur are epic.


More like Cut & Schart. The guy’s mentally incontinent. Bends over and sprays a stream of consciousness.


You should probably learn how to spell weasel before cutting & pasting it 100 times, Schart Boy.


Russ, people like this will wear you out , paid trolls have nothing better to do than to stir up the conversation and make you feel defensive.


Thanks, but he didn’t wear me out. I find him amusing.


Oh Johnnyboy, You desperately seek to impress others with what you imagine is a dazzling intellect, but is in fact just misplaced arrogance. So sad. Go preach your victimhood elsewhere; the diarrhea of your mind and mouth are not the truth, nor anywhere close to it. You may be a slave, as your own words admit. But we are not. We the People are not subjects or slaves like you, as We hold to the following: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,… Read more »


How about we just call you Schart. Pretty much sums it up.


Where did this guy come from?


This person is well spoken , but incorrect in his thinking.


That always works with the uneducated doesn’t it? Bring God into your arguments with a carefully chosen bible quotation.


Hey Schart, lay off the mescaline before your next “discharge”. No one gives a F about your alleged brilliant career and it doesn’t make your arguments less lame.

Plain Old American
  1. Article 1, Section 8, Clauses 15 & 16 presuppose the existence of the Militia of the Several States before the 2A was adopted.
  2. Article 13 of the 1776 Virginia Declaration of Rights tells us the militia is “composed of the body of the people trained to arms”
  3. The Declaration of Independence says we have the right, the duty to alter or abolish the government if it evinces a long train of abuses and usurpations designed to reduce us under absolute tyranny. That cannot be done if we must beg permission to have arms.

Should this come about, then apparently radio, television, ink-jet printers, the internet, Satellites, etc. none would be covered by the First Amendment as none were invented or probably envisioned at the time the Bill of Rights came into being!


After sixty years participating in shooting sports and as interested observer in the struggle for civilian gun rights, let me humbly advise: Never argue over types of guns, gun technology, calibers, mag capacity, etc. The gun control advocates will always get you to yield, if you wade into that mire. Always shift the argument to ubiquity of crime, the lack of law enforcement, the support by Dems for early release of felons and their failure to blame perps for gun crimes, instead of law-abiding Americans. There’s not a one of the gun control groups which doesn’t fall into the above… Read more »

Last edited 1 year ago by Wass
Roland T. Gunner

Capital punishmemt is a terrible thing; but I do not oppose it.


Absolutely correct. Too bad the “Constitutional and historical illiterates” who need these lessons will never read this, seek the knowledge, understand it or accept it because of their early indoctrination and inadequate primary education. Ya can’t fix stupid!


Our civilian guns today are the same as those in 1776, you squeeze the trigger and it fires exactly one shot, never more, for each time you squeeze the trigger. These are exactly the type of firearm the founding fathers were familiar with when they wrote the Constitution and Bill of Rights, including the Second Amendment.


The founders would be outraged that the Politicians in our current government believe the government not only should but must have more powerful and effective weapons than the citizens, as their intention is to be used against the citizens should the citizens resist the government’s demands.

Ryben Flynn

We better get those Star Trek Phasers up and running soon or they will be banned. /s


go away quietly, or just go away period.


Scharf noun: A tedious, self-contradictory, sanctimonious, hypocritical, redundant screed or ‘stream of consciousness’ relentlessly and mercilessly barfed in chatrooms from a mentally incontinent troll’s anus.

Verb examples: John Lloyd just Scharfed on Ammoland again. Idiomatic, U.S.: Take a scharf.

Synonym: Schart noun: A fully-automatic, rapidly spray-pasted scharf.


I’d bet that the number of rifles vs. muskets issued to troops in the 1770’s was far fewer in number and percentage than were owned by the civilian population. Up until the 20th century, not counting heavy weapons, civilians had superior fire power to the government.

David: typo with “post-1986 select firearms”? Perhaps “select-fire [fire]arms” or “weapons?”

Roland T. Gunner

There, cancelled out that single, solitary, dumbass thumbs-down.

Roland T. Gunner

Mr. Codrea, that fraudulent vote on Hughes seriously needs to be forced upon the courts and be set right.


You are wrong on one point. Under the 1986 machinegun ban, the states have the power and authority to issue or sale machineguns TO ANYBODY they want. You don’t have to be a police officer, in the National Guard, or be any type of government employee. That may be what Congress thought it was doing, but the law DOES NOT restrict that authority. Of course, pretty much everyone can be designated as a member of the state militia, and Congress cannot do anything to restrict how the states go about arming the militia. There is a Supreme Court case that… Read more »