Fatal Flaw in Common Use Argument
BY Herschel Smith
1 day, 6 hours ago
This is where our “gun rights leaders” may have painted us into a corner, by seizing on the criteria of being “in common use at the time” as the standard to determine if a gun ban violates the Second Amendment. It was never intended as a popularity contest.
Since no innovation ever 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. Remember the core purpose of the Second Amendment. To argue the Founders thought sending an outmatched yeomanry to their slaughter would be “necessary to the security of a free State” is insane.
I know that David has had problems with it when Mark Smith uses the “in common use” argument, and properly so, although Mark would say that we need to win the fights we can when we can and tackle the next one using another scheme, or something along those lines.
I wish there was another way to argue this, and in fact, David has suggested it. The government knew that the yeomanry had “weapons of war” and always has and never had a problem with it. I agree, and have pointed out the obvious, to wit, the notion that the founders would have wanted their fellow freedom fighters limited by weapon is ridiculous. Since the founders were the ones who were alive at the time of the BoR, they certainly wouldn’t have read the 2A that way.
I have also pointed out before that Heller – the genesis of the in common use argument – was a weak ruling. This hasn’t won me any friends over the years, but I stand by my position. Citing David Williams, Indiana University Maurer School of Law …
Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.
Those are strong words, but he’s right on with every one of them.
On May 28, 2025 at 5:37 am, Joe Blow said:
I honestly and truly DO NOT understand this kind of thing?
SHALL NOT BE INFRINGED is pretty black and white! “Common Use”, “Magazine Size”, all the other ancillary arguments that get dragged into the mess serve one purpose only – to muddy the water and get gun-rights advocates to cave on a minor issue, which will then be used to leverage additional restrictions on gun owners. ALL OF WHICH ARE UNCONSTITUTIONAL!
Don’t fall for the trick, don’t fight the fight on their terms! Do not settle on their fantastical interpretation of the language…. It is absolutely without question the founding fathers of this nation wrote the 2nd Amendment to The Constitution to preserve the rights of citizens to own and use arms equal to that which the government possesses. Zero debate is possible if you have a brain and a 4th grade knowledge of history. The particular choice of wording (arms, not muskets), the unambiguousness of “shall not be infringed” (nothing in there about certain limits like magazine size and repeatability)…. READ THE FUCKING THING IN ITS ORIGINAL AND GET BACK TO ME!!!!!
When you acquiesce to ANY restriction on arms, you are weakening the written word and shooting yourself in the foot. SHALL NOT BE INFRINGED. Anything less and you can fuck right the hell off. You’re not just part of the problem, you ARE the problem. You are the reason there are cracks in the argument surrounding fire rates, magazine sizes, silencers, etc. (not our host, I mean people subscribing to these arguments). All of these little side-debates crumble when you READ THE DAMNED TEXT OF THE AMMENDMENT! So why are we even debating any of this? Because our side is headed up by a bunch of pussy losers, that’s why!
On May 28, 2025 at 9:37 am, Frank Clarke said:
David Codrea — with whom I often disagree — is absolutely correct here, and I said from the day the Heller decision came down that it would one day bite us all in the ass for the “in common use” doctrine. Come the day someone actually invents a phaser, it will be instantly banned because it is clearly NOT in common use.
Thanks for nothing, Antonin.
On May 28, 2025 at 6:01 pm, X said:
“Common use” is pure dicta ginned up by James McReynolds in “U.S. v. Miller.”
It’s complete nonsense.
In 1791 the .22 LR did not exist, therefore it was not “in common use” by the “militia.” Is it therefore unprotected by the Second Amendment? Lever guns were not in common use prior to the 1870s, were they not protected? Cole Peacemaker revolvers were once in common use, but no longer are. Are they now unprotected?