‘In Common Use’ Can Ultimately be Used to Make the Second Amendment a Moot Point

U.S.A. — “The Second Amendment Allows a Ban on the AR-15,” Harvard University Professor of Law Noah Feldman declares in a Bloomberg/Washington Post “opinion” piece.

That it’s an “opinion” is the one truthful admission in this otherwise absurd act of academic gaslighting. Harvard, Bloomberg, and WaPo are all for eviscerating the right of the people to keep and bear arms and routinely spread whatever lies they can get away with (despite the disingenuous caveat that “This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.”)

“Under current law, the Second Amendment extends only to weapons that are not ‘unusual’ and are ‘in common use’ by law-abiding citizens,” Feldman asserts. “Whether that includes AR-15s is a question the Supreme Court has not yet resolved, although the justices have recently been asked to weigh in. A key question today — though not when the Bill of Rights was ratified — is whether a weapon is ordinarily used for self-defense.”

“To give you a sense of how different things were with respect to gun issues 84 years ago, the court held unanimously that the Second Amendment didn’t protect [short barreled shotguns],” Feldman misstates, citing the case of U.S. v. Miller. That’s actually not what they said at all. In the opinion for that case, Justice McReynolds noted:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

They didn’t have evidence because the case wasn’t argued in front of them. Had it been, the military utility of such weapons could have been decisively established, starting with the flintlock blunderbuss:

“This short shotgun-type firearm utilized about a half-pint of shot. During the Revolutionary War, American warships used Blunderbusses for repelling unwanted borders. Gunsmiths made these specifically for defense at close quarters.”

Using the Bruen standard of text, history, and tradition as understood by the men who ratified the Second Amendment, plenty of subsequent “legal” rulings should fall. So would Feldman’s proposed AR ban, as his own words about citizen militias indicate, if he would only heed them.

“Those militias, in turn, were made up of ordinary citizens,” he instructs. “And the ordinary citizens in the state militia  were expected to provide their own weapons.”

What weapons were they expected to bring from home, and how did they compare to what enemy soldiers were issued?

“From this, it followed, for McReynolds, that the Second Amendment protected only weapons that had ‘some reasonable relationship to the preservation or efficiency of a well-regulated militia.’ That did not include the short-barreled shotgun, he added. Such a weapon was not ‘any part of the ordinary military equipment’ nor would its use ‘contribute to the common defense.’”

In fact, citizens reporting for militia duty were expected to bring weaponry suitable for battle, and in many cases, these men “outgunned the police,” especially when considering the standard issue for British troops was the Brown Bess musket, while patriots who owned them came equipped with more accurate and longer-range Kentucky/Pennsylvania rifles. Recall that the Founders considered the militia “necessary to the security of a free State,” and to expect their equipment would be inferior to that of attackers they were defending against would have been suicidally absurd.

The militia deployed with the intent to match and best a professional military threat. Its function was — and still is — to field citizen soldiers, and these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.

Still, apparently believing he is making his case, Feldman continues offering pre-Bruen examples of infringements, in this case citing Antonin Scalia’s wholly uncalled-for concession that “Like most rights, the Second Amendment right is not unlimited. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

He used that to imply banning weapons such as “M-16 rifles and the like” would not be an infringement. Otherwise, he asserted, “it would mean that the National Firearms Act’s restrictions on machineguns … might be unconstitutional, machineguns being useful in warfare in 1939.”

Yes, it would be.

But naturally, Feldman (and all the other prohibitionists) rely on that to exploit, beginning with a lie.

“The virtue of the Supreme Court’s 1939 test is that it was at least true to the original meaning of the Second Amendment,” he claims. “Its practical disadvantage, of course, is that if updated to the present, the rule would protect military-style weapons — not only semiautomatic rifles but machine guns, RPG launchers, predator drones, and the like.”

Notice how he escalates “dangerous and unusual” to lump conventional small arms in with “the like,” which could conceivably escalate up to weaponized anthrax and suitcase nukes.  The 1939 non-test (because it wasn’t a test with no arguments and evidence) is hardly “true” to Founding Era intent, as the Framers never qualified the Second Amendment by declaring “the right of the people to keep and bear non-dangerous and usual arms in common use at the time shall not be infringed.”

“Scalia discounted the introductory clause that explains the purpose of amendment as ensuring a well-regulated militia,” Feldman elaborated. “He shifted the meaning of the right to bear arms to personal self-defense.”

Inexplicably and unjustifiable, he did, and we ignore the first 13 words of the Second Amendment at our peril. Feldman takes full advantage of that, writing “Today, the Second Amendment applies to all weapons that ordinary people carry on an ordinary basis for self-defense … Logically, it should also exclude AR-15s, which are not commonly carried for self-defense.”

Logically it shouldn’t. But unfortunately for gun owners, too many influencers ostensibly on “our side” won’t explore the militia aspect, and that dereliction makes the Second Amendment more vulnerable to infringements.

“Here’s hoping that, when the Supreme Court ultimately addresses the issue, the justices can recognize that that AR-15s do not belong in the same category as handguns,” Feldman concludes. “They are weapons of war — for, in fact, a well-regulated militia — not for ordinary people to carry for ordinary use.”

Going back to the Founding Era for understanding, text, and tradition, we can see what Continental Congress delegate Tench Coxe had to say about that:

“Their swords, and every other terrible implement of the soldier, are the birthright of an American… [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

The tradition is that citizens have militia-capable firearms. Although “well regulated” is deliberately misrepresented to mean “gun control” is permissible, the militia system envisioned by the Framers is one where the “regulation” is through coordinated training and deployment, not in dictating what citizens are allowed to possess. That this has been intentionally ignored by those whose goal is a monopoly of violence undermines not only Founding intent, but guarantees the citizenry will be left out of all future technological developments. And that’s made inevitable by the “in common use test.”

Because what was in common use in the past is not what is in common use today, nor what will be in common use tomorrow. At least by the military and by law enforcement.

A persistent lie told by the prohibitionists is the Founders only had muskets and would be so horrified by AR-15s that they’d have never written the Second Amendment. That, of course, is a load. It relegates the role of prominent scholars, inventors, and innovators educated under the influence of the Enlightenment to that of unimaginative and non-observant dullards. They knew about multiple barrel cannons, volley guns, pepperbox revolvers, multiple shot Girardoni air rifles, crank-operated Puckle guns, breech-loading Ferguson rifles… “dangerous and unusual” all, and none of them “in common use at the time” when first developed.

The Founders were at the vanguard of the technology of their day, and of pushing it to see what else could be discovered and achieved.  They knew that times were changing, as theirs were the revolutionary, educated minds bringing the changes about. And when new developments did happen, they embraced them, as opposed to suppressing and outlawing them while “swarms of officers” issued arbitrary rule changes to ban them.

That’s what “history, text, and tradition” will tell anyone who wants to look honestly.

By relegating what’s “in common use at the time” to what’s commercially “popular,” as opposed to what modern infantry soldiers are armed with, the advantage will forever be with invaders and enforcers. Ditto the “for lawful purposes” qualifier, as outlawing firearm types makes sure they can’t be legally owned. We see that all the time with the restrictions on “civilian” possession of machine guns (which government knows we have a right to own), and it won’t end there. (As an aside, if we relegate “in common use” to what’s popular and neither “dangerous” nor “unusual”, so-called “smart guns” would fall into that category and could be banned!)

Think about technological developments in small arms since the founding of the Republic. How would Washington’s troops have fared against Grant’s, Grant’s against Pershing’s, and Pershing’s against Patton’s…? That’s the past. What about the future?

If “the people” of the  Second Amendment can be denied arms based on them not being “in common use” for sport and for limited “self-defense” situations, what chance would they have resisting tyranny equipped with weaponry that today would be considered the stuff of science fiction? Who knows what those imposing their demands will have at their disposal, along with the power to withhold from citizens 50 years from now, or 100, or beyond?

Since no innovation begins “in common use,” a government with the power to do so can ban all new weapon developments from those they would rule, retaining them exclusively for itself. It’s what I warned about when I wrote “Things to Come” back in 2002 for Guns and Ammo (not online and it’s copyrighted, so I can’t link to the entire essay):

It’s been said that a battle isn’t won until a man with a rifle occupies the ground. We must keep in mind that someone probably once said the same thing about spears.

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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.