The Supreme Court’s “common use” test has become one of the strongest weapons available to Americans challenging bans on AR-15s, standard-capacity magazines, and other widely owned firearms. It may also rest on a surprisingly weak originalist foundation.
That is the theory recently advanced by Second Amendment plaintiff Charles Nichols, who argues that the Constitution does not protect an arm because enough Americans already own it. The Second Amendment protects arms because the text says the people’s right to keep and bear them “shall not be infringed.”
Nichols’ criticism deserves serious consideration as the Supreme Court prepares to decide Viramontes v. Cook County and Grant v. Higgins, the consolidated cases asking whether the Second and Fourteenth Amendments protect the right to possess AR-15-style and similar semiautomatic rifles. The Court granted review on June 30, 2026.
The challengers have an overwhelming argument under existing precedent: AR-15s are bearable arms, are commonly possessed for lawful purposes, and cannot plausibly be classified as both “dangerous and unusual.” Nichols, however, is asking a more fundamental question.
Where did “common use” come from, and is it actually consistent with the Second Amendment’s original meaning?
“Common use” is something SCOTUS made a passing reference to, and without explanation, in US v. Miller. Heller (2008) simply cited Miller and one Oregon state court decision from 1980, which said that cannons are not protected by the Second Amendment, which was the opposite of…
— Charles Nichols’ 15th year of 2A lawsuit (@CRTC_Nichols) July 28, 2026
What Miller Actually Said
The phrase is generally traced to the Supreme Court’s 1939 decision in United States v. Miller.
Miller involved a prosecution under the National Firearms Act for transporting an unregistered short-barreled shotgun across state lines. The Court said it had not been shown that such a shotgun had a “reasonable relationship to the preservation or efficiency of a well regulated militia.” The justices added that it was not within judicial notice that the weapon was “ordinary military equipment” or could contribute to the common defense. That is not quite the modern “common use for lawful purposes” test.
Miller focused on whether the firearm was suitable militia equipment. It did not conduct a serious original meaning analysis of the word “arms,” establish an ownership threshold, or explain why the number of privately owned examples should determine whether the Constitution protects a weapon.
There was also no adversarial presentation from the gun owners. The respondents filed no brief and did not appear for oral argument. As Justice Antonin Scalia later observed in District of Columbia v. Heller, the Court heard only the federal government’s side and was presented with virtually no competing historical analysis.
That procedural history should make any originalist hesitant to treat Miller as the final word on which arms the people may possess.
How Heller Created the Modern Test
In 2008, Heller correctly held that the Second Amendment protects an individual right independent of service in an organized militia. It also interpreted Miller as limiting protected weapons to those used by the militia—meaning those “in common use for lawful purposes.” The Court then connected that supposed limitation to the historical prohibition against carrying “dangerous and unusual weapons.”
That move has proven enormously useful to gun owners. Handguns are plainly in common use. So are AR-15s. So are magazines holding more than ten rounds. But useful doctrine and originalist doctrine are not necessarily the same thing.
The historical sources cited by Heller concerned the manner of carrying weapons in a way that terrorized the public. They do not clearly establish a Founding-era tradition allowing the government to ban possession of an entire category of bearable arms merely because judges consider those arms insufficiently prevalent.
There is a major constitutional difference between prohibiting someone from carrying a weapon in a threatening manner and declaring that ordinary citizens may not own that type of weapon at all.
The former regulates misuse. The latter destroys the right. Treating those two things as historical equivalents stretches analogy beyond recognition.
The Problem With Measuring a Right by Popularity
Nichols’ argument exposes the circular nature of “common use.” Suppose the government bans a newly developed arm before millions of citizens can purchase it. Years later, the government defends the ban by arguing that the weapon is not commonly owned. Under that reasoning, the unconstitutional law creates the factual condition used to justify itself.
The government bans the arm because it is uncommon, and the arm remains uncommon because the government banned it.
No other enumerated constitutional right works that way. A new printing technology does not lose First Amendment protection because too few publishers have purchased it. An emerging communication platform does not become subject to prohibition merely because it has not yet accumulated enough users.
The constitutional question should begin with the text: Is the object an “arm”?
Heller defined “arms” broadly as weapons of offense or armor of defense and recognized that the Second Amendment extends to weapons that did not exist at the Founding. The text protects bearable arms, not merely those that have survived long enough—and escaped enough government interference—to become popular.
Common ownership can provide compelling evidence that a weapon cannot be considered “unusual.” But that is different from making popularity the source of constitutional protection. The people do not vote an arm into the Bill of Rights through consumer purchases.
The Question of Cannons and Military Arms
Nichols also criticized Heller’s reliance on the Oregon Supreme Court’s 1980 decision in State v. Kessler. Kessler held that Oregon’s state constitutional right to bear arms protected possession of a billy club in the home. In discussing the meaning of “arms,” however, the court asserted that the term would not have included cannons or other heavy ordnance not kept by militiamen or private citizens. It further suggested that modern weapons used exclusively by the military were outside the state constitutional provision.
Nichols’ objection is that this was a 1980 state-court conclusion, not evidence of the Second Amendment’s original meaning in 1791. The Oregon court cited modern weapons-history books for its technological discussion, but its cannon statement was not grounded in a demonstrated Founding-era legal rule authorizing categorical bans.
That matters because privately owned artillery and armed private vessels were not foreign concepts in early America. More importantly, the Constitution’s text says “arms.” It does not say “small arms popular among individual consumers” or “weapons judges believe are suitable primarily for personal self-defense.”
There may be legitimate questions about whether every weapons system is a bearable “arm” within the Amendment’s text. A cannon, warship, bomber, or nuclear weapon presents a different textual question from a rifle carried by an individual.
But those questions should be answered through the original meaning of “arms”—not by importing an unsupported popularity contest into the Constitution.
The Machine-Gun Concession
Nichols’ sharpest criticism is directed at the likely strategy in the pending AR-15 cases. The challengers will probably emphasize that AR-15s are semiautomatic rifles, not machine guns; that millions are lawfully owned; and that they are therefore protected under Heller’s common-use framework.
That is a powerful and strategically conservative case. The Supreme Court need not reconsider Heller’s suggestion that “M-16 rifles and the like” may be banned to hold that commonly owned semiautomatic AR-15s cannot be prohibited.
Nichols believes, however, that conceding the constitutionality of machine-gun bans leaves the deeper historical error untouched. His point is not that the AR-15 challengers are likely to lose by relying on common use. They should win under the Court’s own precedents.
His point is that they may win by accepting a doctrinal framework that is neither compelled by the Second Amendment’s text nor supported by a genuine historical analogue.
Common Use Should Be a Floor, Not a Ceiling
There is no denying the practical importance of common use. Once millions of Americans lawfully own a type of firearm, the government cannot credibly call it “unusual.” That makes the test devastating to bans on AR-15s and standard-capacity magazines. But an originalist Court should not confuse a sufficient condition for protection with a necessary one.
An arm commonly possessed for lawful purposes is unquestionably protected. That does not mean an arm must first achieve widespread commercial popularity before the Constitution applies.
The Second Amendment’s command is not complicated:
…the right of the people to keep and bear Arms, shall not be infringed.
“Common use” may offer the Supreme Court an easy path to striking down modern rifle bans. Nichols’ challenge is whether the Court will eventually recognize that the right existed before any government census of gun ownership—and that constitutional protection cannot depend on how many citizens managed to acquire an arm before politicians prohibited it.
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About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor to AmmoLand News and serves as part of the editorial team responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
